By limiting Aadhaar, Supreme Court may have given government a way to expand its reach

The biometrics-based identity project has been permitted for the public distribution system and LPG subsidy. These alone could be used for near full enrollment.

By now the contours of the events are known. On Tuesday morning, the Supreme Court referred to a Constitution Bench the question of whether Indians have a fundamental right to privacy. The same afternoon, when the judges reconvened, they restricted the use of the government’s biometrics-based identity project Aadhaar to only the public distribution system for food grains, kerosene and LPG.

These orders are unmistakably significant. But what do they mean for the public and the ambitious Aadhaar programme? Why is the Aadhaar project, which seeks to do no more than assign a unique number to all Indians, getting snared in questions of privacy?

To comprehend these issues, it’s important to first understand how we got here.

The rise of a controversy

The Aadhaar project has been dogged by controversy from the very start.

In its early days, it was touted as a magic bullet for reducing all leakages in India’s welfare programmes such as the Public Distribution System, pensions and LPG subsidy. These schemes, said the government were being manipulated to siphon off money. Village heads or sarpanches, for instance, were inserting fake names into the lists of beneficiaries – in government parlance, ghosts – and pocketing the pensions. Others, meanwhile, contrived to get their names repeated multiple times in the lists.

Aadhaar could fix this, said the Unique Identification Authority of India, the body created to issue 12-digit unique identity Aadhaar numbers.

A person’s biometrics – fingerprints, iris scans – would be used to generate a unique number, which would then be added to, say, the pension database. This would plug leakages in two ways. One, ghosts not having biometrics would get eliminated. And two, people claiming pension would have to identify themselves through their fingerprints. This, we were told, would enable the government to confirm that the money was reaching the targeted person.

Out in the field, however, the programme struggled to live up to its billing. Biometric devices struggled to read the fingerprints of manual workers, with their weathered palms, and the aged. As experiences in Jharkhand’s National Rural Employment Guarantee Act programme showed, while Aadhaar caught ghosts and duplicates, it couldn’t catch other forms of corruption in these schemes.

However, even as the debate on whether Aadhaar is useful or not played out, the United Progressive Alliance government – and then, the National Democratic Alliance government – kept pushing the project. When more government departments embraced Aadhaar, enrolment in it increased. Several of these acceding departments weren’t even tasked with welfare spending. For instance, the Election Commission mooted plans to link voter identity cards and Aadhaar numbers. Some departments linked staff attendance and salaries to the Aadhaar database.

At no point, though, any work was done on creating a legal framework governing the use, storage and protection of the collected biometric data and the metadata emerging from its use.

See it like this. To identify a beneficiary, her fingerprints would have to be sent to the servers of the Unique Identification Authority. This creates an outcome where, as legal researcher Usha Ramanathan puts it, “The authority has a record of all the authentication requests which can be used to profile people.” These possibilities – with attendant implications – have never been adequately discussed.

Similarly, Ramanathan adds, once people give their biometrics, they have no say in how that gets used. This concern got highlighted last year when the Central Bureau of Investigation, tasked with investigating a rape in Goa, asked the Unique Identification Authority to share the fingerprints of all people in the state.

There are other worries too. As Ramanathan again notes, there is no possibility of opting out of this database. A unique number attached to every individual makes it easier to merge diverse databases – such as an insurance company and a hospital chain – enabling more detailed profiling of individuals.

Such concerns, some arising out of fears for privacy, others out of denial of government services for those without Aadhaar numbers, resulted in the Supreme Court hearings.

What do the rulings mean?

On Tuesday, India’s apex court provided partial clarity.

It referred to a constitutional bench the question of whether Indians have a fundamental right to privacy when the NDA government argued that they don’t. On reconvening, they issued an interim ruling directing the government to publicise the fact that Aadhaar is neither mandatory nor a precondition for receiving any benefits due to a citizen.

It restricted the use of Aadhaar to only the public distribution system for food grains, kerosene and LPG. Further, it declared that the data collected by the Unique Identification Authority, while generating these unique numbers, cannot be used for any other purpose, except as directed by the court for criminal proceedings.

So what do these orders portend?

The interim order clamps down on the government’s plans to continue using Aadhaar till the larger question on privacy is settled. According to Ramanathan, by prohibiting the use of Aadhaar data for any purpose but the delivery of food grains and fuel, the Supreme Court has widened the list of proscribed activities.

This is echoed by a senior governmental official, who has been closely involved with the project and who spoke to Scroll on condition of anonymity.

He too felt that the apex court has greatly weakened the Aadhaar project. “Passports, pensions, driving licences, NREGA, they were all getting connected to Aadhaar,” he said. “We wanted to link every SIM, every bank account to Aadhaar. The income tax department had just started using Aadhaar for people filing their IT returns. Digital lockers were being started. Pensioners were able to collect their pensions from anywhere. All that is now negated by this order.”

According to the official, the order is a catalytic moment. Till now, he said, neither the UPA nor the NDA government had gone the whole hog on Aadhaar. The National Identification Authority of India Bill, which could have made Aadhaar mandatory, has not been passed. Nor has been the Right to Privacy Bill, which seeks to impose punishment for intrusion into a citizen’s privacy.

Instead, both governments were simply “linking Aadhaar to everything”, says Abhijit Sen, a former member of the erstwhile Planning Commission. Whenever challenged, both governments told courts that enrolment was optional even though they told the people learnt something very different.

Now, the senior government official says, the “game is to the finish”. “You look at all the programmes of the government and Aadhaar features in them. This government will now have to work on the bill if only to protect Aadhaar from the Supreme Court.” In which case, he said, this might become an executive-versus-judiciary fight.

Abhijit Sen agrees: “This might become like Right to Food, which came about because of a set of sympathetic judges.”

How are things poised?

Privacy advocates fear another possible outcome. The longer the Supreme Court takes to settle the question of privacy, the stronger the government’s case gets. This showed in the government’s defence even now.

In his arguments, the Attorney General argued that Aadhaar had already enrolled 91% of the adult population in the country.

Ramanathan shares this concern. “Till now, neither the UPA nor the NDA have been bothered by the Supreme Court’s orders telling them to not make Aadhaar mandatory,” she said. “That is the fear. That they will keep violating and then present the court with a fait accompli.”

That is how, she says, an exemption was won in the court for food grains, kerosene and LPG – by pointing at all the work done. Indeed, some fear that this exemption itself will help the government create a fait accompli.

It gives the government what it wanted – near 100% coverage of Aadhaar, says Himanshu, an assistant professor of Economics at the Jawaharlal Nehru University. “PDS covers 75% of the households in rural areas – the poorer ones. And LPG covers the remaining 25% there. In urban areas, the lower 50% get PDS, while the upper 50% get LPG.”

With the Supreme Court order, Himanshu said, these two programmes alone will help the government link bank accounts and Aadhaar numbers of almost all Indians.

For now, civil society groups are planning to file an application in the Supreme Court asking it to quickly settle the privacy question. One of their lawyers said: “This is just one of the continuing battles we will have to fight. Aadhaar is just one battle. These are calls that have to be made by society.”

Indeed. As technology changes, as the state becomes more intrusive, what is the balance we want to strike between science, security, convenience and privacy?