Towards Totalitarianism

Aadhaar–a Grand Conspiracy

Raman Swamy

Making Aadhaar mandatory will make a mockery of the basic constitutional concept of "We the People". From a democracy for the people, by the people and of the people, India will be converted into a nation where all citizens will be tethered to an electronic leash over which the State will have absolute control.

This is the terrifying portrait that was painted by Shyam Divan, the counsel for the anti-Aadhaar petitioners, before the Constitutional Bench of the Supreme Court, during the final hearings which began January 17.

The full horror of mandatory Aadhaar in all its dimensions was described with such clinical clarity and legal lucidity that even those who have till now been ambivalent and unconcerned about the dangers of imposing a nationwide technology-driven data base of bio-metric identification of all citizens, would have begun to pause and ponder.

It is not just the starry notion of protecting privacy that is at stake. It is the Constitution of India that is being sought to be defaced, defiled and derailed. This was the thrust of Shyam Divan's arguments.

Many legal luminaries are of the opinion that the five judges on the Bench—as the ultimate guardians of the Constitution—would now be compelled to examine every strand of the analysis presented to them more closely and more cautiously, before passing judgment in the case.

In other words, the petitioners' counsel seems to have succeeded in his attempt to elevate the case to a higher plane by projecting Aadhaar as not just another governmental programme but a devious and diabolical conspiracy by the Modi government to wrest control of the levers of power over the country and its people by overturning the Constitution itself.

At its core, Aadhaar is clearly aimed at utterly altering the relationship between the citizen and the State. Without any doubt, it diminished the status of the citizen and drastically dis-empowers the common man.

Rights that till now have been freely exercised, liberties that have been freely enjoyed, entitlements that have been granted and guaranteed by the Constitution, would all be made conditional. Worse, that conditionality would be based on a compulsory barter. A barter that compels the citizen to give up his or her biometrics 'voluntarily', allow his or her biometrics and demographic information to be stored by the State (as well as private operators) and then used for a process termed 'authentication'.

The State gets the unchallenged power to issue an Aadhaar number and then issue instructions for that number to be embedded across service providers and agencies. The most appalling aspect of this process is that unless the Aadhaar number is seeded in the databases of the service provider, the citizen is denied access to these most essential facilities. The entire gamut of natural rights of citizens then becomes wholly dependent on surrendering to that compulsory exaction.

If the highest court allows the Aadhaar scheme to operate unimpeded it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens. A People's Constitution will transform into a State Constitution.

The question before the Bench is whether the Constitution of India allows the State to embrace this new programme or whether the Constitution repudiates this giant Electronic mesh.

The threat is urgent and insidious. By employing a "smoke and mirrors" strategy through a succession of political propaganda statements, media disinformation campaigns, marketing stratagems, the Modi government has rolled out an electronic leash that nobody understands, is full of leakages and is riddled with flaws.

This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the State to stifle dissent and influence political decision making.

As the Aadhaar platform extends to private corporations, the degree of tracking and extent of profiling will exponentially increase. Several State governments have started using the Aadhaar platform to build profiles of residents that is reminiscent of totalitarian regimes.

At a time when the matter is pending before the Constitution Bench of the Supreme Court, is it proper for various organisations in the public and private sector to deny service without Aadhaar linkage? Does that not amount to contempt of court? Also, is it ethical for senior central ministers to use social media to launch a massive propaganda campaign in favour of the controversial electronic identity programme? Does that not amount to an attempt to influence the judiciary?

Such questions are being raised in the wake of the unusual flurry of tweets and online messages posted by several Modi ministers of the stature of Ravi Shankar Prasad and Piyush Goyal in the last few days. These posts are being re-twetted in their thousands by the ruling party's online media brigade. A special hash-tag called #AadhaarMyth Buster has been created for this purpose and soon became the top trending topic on social media.

As regards, banks and mobile phone companies continuing to send their tersely worded reminders to all customers to link their service to Aadhaar despite the court having extended the deadline for three months, legal pundits are of the view that it could amount to improper pressuring tactics in matter that is sub-judice.

Interestingly, the Life Insurance Corporation, which has till now not only insisting on linkage but also making it virtually impossible for agents and policy-holders to access the official website without the 12-digit card number, seems to have suddenly backtracked.

LIC, which is country's largest life insurance company, with over 2000 branches and over 14 lakh agents, has been forced to relax its adamant posture and to issue a clarification. A major problem cropped up with the new design of the LIC portal which made it impossible for users to access their own accounts without updating details of both Aadhaar and PAN. This had resulted in users of the site being forced to provide their Aadhaar details even though the deadline the Supreme Court had kept the linking in abeyance till March 31. This also prevented policyholders without PAN cards to access their own profiles.

After a public outcry on social media and scathing newspaper reports, LIC's corporate communication director belatedly issued a statement that this was "inadvertently" done and that the mandatory requirement for providing Aadhaar numbers would be removed from the portal.

Apart from this, some new questions have arisen about certain perils of mandatory Aadhaar in an area on which little or no attention has been paid till now—commercial secrecy. Much of the debate so far has been on the violation of Fundamental Rights like the Right to Life and the Right to Privacy.

Both corporate players and activists are now realising that trade confidentiality, vitally needed in business transactions, negotiations and deals could become vulnerable due to the multiple linkages between Aadhaar and GST. Almost every detail of pricing of raw materials, production processes, value addition and marketing costs have to be declared in GST filing. This is bound to seriously jeopardise competitiveness and confidentiality. This is especially relevant because of the numerous instances that have come to light of security breaches, design flaws in the technological architecture as well the rampant cases of insiders leaking out valuable data.

Even though there is no clear-cut law to protect commercial and trade secrets, certain provisions of existing legislations like the Contract Act, Negotiable Instruments Act, Partnership Act and Company Law do pertain to secrecy and could offer some protection.

On the other hand, the Right of Profession is guaranteed under Article 19 of the Constitution. Hence, any attempt for the Government to seek access and control over commercial information like share market information, financial transactions, PAN linkage, etc, appear to be a clear violation. The fact that a large number of private agencies and companies, including giant foreign multinational corporations have been entrusted by the UIDAI only makes the dangers even more real. There are clearly too many loopholes in the manner in which the Aadhaar scheme has been out-sourced without regard to data theft, infringement of commercial secrecy and manipulation of markets.

One leading economist said in the context of the disastrous demonetisation decision—"A bigger worry than the demonetisation itself is the failure of the Modi government to recognise and admit that it was a mistake".

The same criticism can be leveled in the case of Aadhaar as well as GST, both of which were thrust down the throats of the entire Indian population in a hasty, ill-convinced and brutal manner. This is what is making investors, businessmen and scholars very worried and suspicious about the government's motives and very apprehensive about future policy decisions.

Civil Writ Petition No. 372 of 2017. That is the case filed under Article 32 of the Constitution challenging the Validity of the Aadhaar Act on the grounds that it violates the Fundamental Rights guaranteed under Articles 14, 10 and 21.

Whatever the verdict, it will be historic. It will profoundly impact the future of governance in the country. It will determine whether India will remain a land of individual freedom or become a police state where the governments will have powers of super-surveillance.

The final hearings began in an atmosphere very different from last summer when the original petition filed by two women—Shanta Singh (a Magsaysay Award winner) and Kalyani Sen Menon (a feminist researcher).

Since then, numerous other petitions have been filed and accepted by the Supreme Court as "intervention applications" in the case of "Shanta Singh and Another versus Union of India and Another".

The latest is a petition filed by the All India Kisan Sabha (AJKS) which raises many grassroots issues that had not been spelt out in detail till now. In a sense it is a challenge to Aadhaar from the standpoint of the poorest and most needy citizens of what is often called "Asli Bharat", the vast sea of humanity in struggling for survival in the agricultural sector.

A striking problem flagged by AIKS petition, which was accepted as recently as January 15, is that fingerprint Identification is proving to be an absurdity in rural India—"due to the rough exterior of fingers caused by constant hard work, a large majority of manual labourers and farmers have bad quality of finger prints and hence cannot get an Aadhaar number, even if they wish for it", says the petition.

The educated elite in the big cities, mainly engaged in white-collar occupations and blessed with well-preserved patterns of ridges, whorls and arches that are easily mapped by biometric scanners, would undoubtedly scoff at this ludicrous excuse by the unwashed masses with gnarled hands.

But it is a serious petition that highlights the grave implications of being excluded from essential welfare schemes if Aadhaar identification is declared as obligatory and mandatory. In all the sound and fury of the political, legal and intellectual debate that is raging over the pros and cons of a centralised repository if biometric data of all citizens, the original purpose of Aadhaar has virtually been drowned out—it is for the Targeted Delivery of Financial and Other Subsidies, Benefits arid Services.

What are these financial subsidies and services? They include soil health card, crop insurance including Pradhan Mantri Fasal Bima Yojana and fertiliser subsidies. No fingerprint, no Aadhaar card. No Aadhaar, No PDS, No MNREGA work. The result is that many needy sections like farmers, labourers and Adivasis are denied these essential subsidies, benefits and services due to non-linking of Aadhaar.

This has already created untold misery and hardship for the poor and impoverished who need access to the host of farm sector welfare schemes and programmes.

The petition highlights cases of farm labourers with poor quality of finger prints being denied an Aadhaar number, and therefore access to benefits. This is despite the proviso to Section 7 of Chapter III of the Aadhaar Act—which mandates that if Aadhaar number is not assigned to an individual he/she will be offered alternate and viable means of identification.

There is another dimension to the ground reality which is typical of the poor execution of gigantic programmes in India. There is pervasive mismatch of numbers with land records, bank accounts and biometrics with Aadhaar. Also, in badly electrified rural areas with sporadic Internet connectivity, the time taken for authentication per person is both a nightmare and a farce.

Will the five-judge Constitutional Bench, after the process of hearings, dismiss and reject all the petitions and uphold the validity of Aadhaar? In the light of the unprecedented upheavals that is currently taking place inside the hallowed portals of the Supreme Court, the odds seem to have swung in favour of a judgment allowing the State to go ahead with mandatory Aadhaar. The progressive elite will be unhappy at the invasion of their privacy. The poor will bemoan their washed-out fingerprints.

Vol. 50, No.34, Feb 25 - Mar 03, 2018