The much-awaited verdict of the constitutional Bench on the Aadhaar project is out. So, who won and who lost? The Bharatiya Janata Party (BJP) has claimed that it is a historic judgment, while the Congress has claimed that the verdict upheld its vision of Aadhaar. But if you pose this question to those who waged resistance to Aadhaar from its inception in 2008—the “fringe”, as Finance Minister Arun Jaitley would have it—they would say: we just passed one important stage and are gearing up for the next. For them, the struggle for freedoms in the digital age is a long one and will continue.

It is often said that the critics of Aadhaar emphasised the privacy argument disproportionately. Nothing could be further from truth. From the beginning itself, the critics of Aadhaar focussed on four major themes. To begin with, the project trampled upon constitutional rights relating to privacy and liberty. It compromised India’s national security by sharing personal data of citizens with other countries.

Secondly, the biometric technology on which Aadhaar is based is flawed and untested for a population as large as India’s.

Thirdly, the government’s claim that Aadhaar would lead to significant savings was wrong. Fourthly, Aadhaar is a neoliberal tool to dismantle India’s social security programmes (“High cost, high risk”, Frontline, August 14, 2009).

The idea behind Aadhaar has a long history in Indian public policy. The creation of unique identity numbers for Indian “citizens” was a demand of the Home Ministry in the 1990s to address the threat of terrorism. Towards this, the Atal Bihari Vajpayee government introduced the multipurpose national identity card, or MNIC in 2003, for which it also amended the Citizenship Act of 1955. Every citizen was to compulsorily register in the National Register of Indian Citizens (NRIC). The Citizenship Rules of 2003 also created a National Identity Number, which would be attached to the name of each citizen in the NRIC.

Confusion began when the Home Ministry encountered the complexities of determining who was a citizen. It then decided that the National Population Register (NPR) should precede the NRIC; the NPR would be a database of “residents” and not citizens. As the NPR database was to include biometric data of residents, the Home Ministry required technical expertise. The establishment of the Unique Identification Authority of India (UIDAI) in 2008 was to meet this requirement. Nandan Nilekani was appointed Chairman of the UIDAI in 2009.

In parallel, the then Planning Commission had mooted the idea of a unique identity number for developmental purposes in 2006. When Nilekani became UIDAI Chairman, this agenda received a boost, and Aadhaar was publicised as an instrument to improve governance. Nevertheless, the links between the UIDAI database and the NPR database remained intact. The Aadhaar number in the UIDAI database was to be the same as the National Identity Number in the NPR database. Any understanding of Aadhaar would have to begin from this interdependency between its developmental and security dimensions.

Fears of privacy invasion

It was this interdependency that led to fears of privacy and of the emergence of a surveillance state. Questions arose of “functionality creep” in large databases such as the NPR or the UIDAI, wherein data collected serves purposes other than the original intent.

First, there were many ways in which the state could use such a database to persecute marginalised sections of the population. Police and security forces, if allowed access to the biometric database, could use it extensively for regular surveillance and investigative purposes.

Secondly, personal data are vulnerable to misuse when the government explicitly encourages private participation in the provision of social services such as education, insurance and health. In other words, personal data could be transformed into commodities in the market for big data.

Thirdly, the UIDAI had outsourced the task of de-duplication of biometric data to foreign companies such as L1 Identity Solutions and Morpho SAS. These companies, and their employees, had access to the UIDAI’s biometric templates. These companies could collect, use, transfer and store personal information of Indian citizens. Further, many of these companies had close links with the Central Intelligence Agency (CIA) of the United States and other Western intelligence agencies. For instance, George Tenet, the former CIA chief, was on the board of L1 Identity Solutions.

The UIDAI collected three sets of biometric information from residents: a photograph, fingerprints of all the 10 fingers and an iris scan. In 2009 itself, the Biometric Standards Committee (BSC) of the UIDAI was circumspect about using fingerprints.

The reason was that a large section of the Indian population was dependent on manual labour, which led to worn-out fingerprints. This was an early note of caution, which the UIDAI ignored.

There was another early note of caution. 4G Identity Solutions, a supplier and consultant for the UIDAI, concluded in 2009 that about 15 per cent of the Indian population may fail to enroll due to unreadable fingerprints.

Biometric data was to be used at two stages: one, when the person enrolls to ensure that the person has not enrolled before; and two, to authenticate a person whenever a UID-compliant service is provided.

The process of enrolment into Aadhaar was chaotic, corrupt and error-ridden. For example, a single person in Hyderabad enrolled more than 30,000 persons in a short span of three months, and about 870 of them were enrolled as physically disabled (“biometric exceptions” in UIDAI parlance). It was unclear as to how many of these 870 were actually disabled because most of their addresses were fake. Aadhaar numbers were issued for dogs, cats, trees, vegetables and flowers. The Department of Posts was on record that across India, as on April 20, 2012, 6.46 lakh Aadhaar letters posted were returned because the addresses did not exist.

If we consider authentication, even the UIDAI officials were not confident that it would work. Many individuals were able to obtain multiple Aadhaar cards despite biometric checks. A set of proof of concept studies was published by the UIDAI in 2012. These studies arrived at three broad findings: (a) only some fingers of residents showed best authentication accuracy; (b) even when fingerprint quality was good, authentication was not always successful at the first try; and (c) residents above the age of 60 showed poor authentication accuracy.

It was clear, then, that widespread use of Aadhaar at authentication would lead to a massive exclusion of poor manual labourers and elderly persons from social sector schemes (“Tale of errors”, Frontline, June 30, 2012).

It was argued that Aadhaar would reduce leakages in social sector schemes such as the public distribution system (PDS) by eliminating bogus beneficiaries or ration cards. However, the critics argued that Aadhaar would be of no help in this matter. First, the proportion of fake ration cards across States is small, ranging from 2 to 13 per cent. Secondly, many States had already identified fake ration cards and eliminated them before the introduction of Aadhaar. By December 2010, about two crore fake ration cards had been eliminated across 26 States. The same was the case with beneficiaries of subsidised gas cylinders.

Thirdly, the proponents of Aadhaar appeared unable to locate the source of corruption in schemes like the PDS. There were two major sources of leakage in PDS: one, after the foodgrains left the godown and before they reached the ration shop; two, between the ration shop and the customer. The major proportion of leakage belonged to the former category; the latter accounted for only a small proportion. Yet, Aadhaar was firmly pushed ahead as the panacea for all the problems that plagued schemes like the PDS.

In the game plan of neoliberal policymakers in New Delhi, Aadhaar was an extremely useful tool to reform the architecture of welfare provisions and qualitatively restructure the state’s role in the social sector. Such a policy had two dimensions, both of which were constitutive of neoliberal economic policy in India.

The first was a shift from universalism to targeting. Aadhaar was not intended to expand social service provisions. Its aim was to keep benefits restricted to “targeted” sections, ensure targeting with precision, and thus limit the government’s fiscal commitments.

The second was a shift from direct provision to indirect provision of social and economic services. Here, existing institutions of direct intervention were to be dismantled and replaced by new institutions of indirect provision. With Aadhaar-linked bank accounts and ration cards, it became easier to wind up the PDS and move towards direct cash transfers (“Cash evangelism”, Frontline, December 28, 2012). Aadhaar, thus, was not a tool of empowerment; it was an excuse for the state to leave the citizen unmarked in the market for social services.

In sum, the Aadhaar project was not criticised from a privacy angle alone, but from at least four distinct angles (Cover Story, Frontline, November 19, 2011). However, the then United Progressive Alliance (UPA) government disregarded these concerns and introduced the National Identification Authority of India (NIAI) Bill, 2010, in Parliament.

The preamble of the NIAI Bill stated that it would aim to provide identification numbers to individuals residing in India and facilitate access to benefits and services to which the individuals were entitled. After introduction, the Bill was referred to the Standing Committee on Finance. However, in 2011, the committee unanimously rejected the Bill and raised serious questions over the very idea of Aadhaar itself.

First, the report criticised the government for beginning Aadhaar enrolment without passing the Bill in Parliament. Secondly, it raised questions over the truthfulness of the enrolment process for Aadhaar numbers. Thirdly, the committee came down heavily on the government for proceeding with Aadhaar enrolment without enacting a data protection law. Fourthly, the report questioned the government on why it began the project without a comprehensive feasibility study. Finally, the report rejected the faith placed on biometrics in the project, as it was an untested and unreliable technology.

Despite the rejection of the NIAI Bill, the government went ahead and attempted to make Aadhaar mandatory in a large number of government schemes. The UIDAI cajoled different government agencies to make service provision contingent on the submission of Aadhaar. For the services that would not be provided without Aadhaar, the UIDAI had a name: “killer applications”.

The 2014 general election was drawing close and the UPA government needed to showcase at least one application that effectively “leveraged Aadhaar”. Thus, the Direct Benefit Transfer (DBT) programme in the provision of gas cylinders was chosen as the prime “killer application”. Gas agencies regularly harassed consumers with threats of ending subsidised provision of cylinders. There were smaller killers too: post-matriculation scholarships were withheld for Dalit and Adivasi students for not having Aadhaar; provident fund transactions were disallowed for salaried employees; salaries were not paid to government employees in Maharashtra; even marriage registrations were disallowed in Delhi.

Interestingly, during the same period, leaders of the BJP were spewing venom on Aadhaar. According to the then Gujarat Chief Minister, Narendra Modi, Aadhaar was a security threat and a political gimmick; the scheme had no vision and crores of rupees were wasted on it. Arun Jaitley wrote blog posts against Aadhaar arguing that it was an invasion into the right to privacy of citizens. The BJP leader Ananth Kumar said: “Aadhaar card is not at all good for India; Aadhaar card should be scrapped.”

By this period, however, more people began to detest the arbitrary imposition of Aadhaar. Threats posed by the project were also being discussed on a wider scale. At this point, a set of concerned citizens approached different High Courts and the Supreme Court.

In October 2012, K.S. Puttaswamy, a retired judge, filed a case in the Supreme Court with the prayer that the Aadhaar project be shut down. Given the large number of cases filed all across India, the Supreme Court ordered that all cases filed in different High Courts be referred to the Supreme Court bench hearing the Puttaswamy case.

In an interim order on September 23, 2013, the apex court directed that “no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory”. However, the Central and State governments paid no heed to this order and continued to demand Aadhaar numbers for delivery of services. The petitioners approached the court again and again when compulsoriness continued. The court put out two more orders, in March 2014 and March 2015, that repeated the spirit of the September 2013 order. There was still no relief to citizens.

BJP’s U-turn

In May 2014, the National Democratic Alliance came to power at the Centre. Once in power, the BJP made a remarkable U-turn and embraced Aadhaar wholeheartedly, much more than the Congress did. The Modi government unleashed a blitzkrieg of sorts in trying to ensure that each and every service provided to citizens was mandatorily linked to Aadhaar.

Aadhaar was made mandatory for opening a bank account, to obtain a mobile number, filing tax returns, to make use of free ambulance services, to receive treatment for tuberculosis, to receive treatment under the National Health Mission, to get housing subsidy for beedi workers, to receive soil health cards, for crop insurance benefits, to receive scholarships under the National Means-cum-Merit Scholarship, to receive benefits under the Sarva Shiksha Abhiyan, for skill training under national skill development programmes, to obtain benefits under the Bonded Labour Rehabilitation Scheme, to partake of midday meals in school, and to get benefits under the Janani Suraksha Yojana.

The Modi government also created a new law for Aadhaar. It passed, through an extraordinarily dubious procedure, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Bill was introduced in the Lok Sabha as a Money Bill. However, the Bill was by no means a Money Bill. It was introduced as a money bill to ensure that the Rajya Sabha, where the BJP did not enjoy a majority, had no say in the matter.

The Bill could have been considered a Money Bill if it had dealt only with the flow of money in and out of the Consolidated Fund of India. However, the Bill dealt with much more than that, including the modalities of sharing personal data with private agencies. These provisions raised the possibilities of infringement of the fundamental rights of citizens. But the government paid no heed to criticisms and went ahead to pass the Bill in the Lok Sabha (“Freedom in Peril”, Frontline, April 10, 2016).

At this point, the litigants in the Supreme Court case approached the Chief Justice’s bench multiple times to request that hearings in their cases begin. Finally, when the hearings resumed in 2015, Attorney General Mukul Rohatgi put forward a strange argument. He argued that privacy was not a fundamental right under Article 21, as ruled by two benches of the Supreme Court in the past. Opposing the government’s view, the petitioners argued that in many other cases, Supreme Court benches had ruled that right to privacy was indeed a fundamental right ingrained in Article 21. While the apex court was inclined towards the latter, it still found it fit to refer the matter to a Constitution Bench.

A nine-judge Constitution Bench was finally set up in July 2017 to decide whether privacy was a fundamental right. In August 2017, the Bench gave the historic verdict that privacy should be considered a fundamental right. Once the clarification was obtained, the hearings in the original Aadhaar cases resumed, but under a different bench constituted by the Chief Justice under his own leadership. The hearings began in January 2018. Multiple hearings later, the bench gave its verdict on September 26, 2018.

Future of Aadhaar

It is against this background that one has to analyse the question posed to the critics of Aadhaar: who won and who lost? When the struggle against Aadhaar began in 2009, no one imagined that it would ultimately transform the very reading of Fundamental Rights in the Constitution.

The first success of the struggle was when the Supreme Court unanimously upheld privacy as a fundamental right in 2017. In the same judgment, the sexual orientation of a person was upheld as a facet of one’s privacy. Relying on such a reading of privacy, the Supreme Court, in September 2018, decriminalised homosexuality under Section 377 of the Indian Penal Code. Here, the critics crossed yet another stage in their struggle. The Aadhaar judgment of September 26 was the third stage. Here, admittedly, the victory for the critics was only in patches. For the critics, the dissenting voice of Justice D.Y. Chandrachud on the Bench would provide much room for hope (“Plethora of plaints”, page 24; “Landmark dissent”, page 28). His majestic judgment is indeed a message to India to not lose heart. Surely, it is in his dissent that the seeds of future struggles against Aadhaar will be sown.

R. Ramakumar is a professor at the Tata Institute of Social Sciences, Mumbai.