Rethinking Aadhaar Judgement

Almost five years ago a Constitution bench of the Supreme Court delivered the Aadhaar judgement [KS Puttaswamy & Anr. v Union of India & Anr. (2019)]. It appears that a convenient amnesia affects the government as it creates new rules and amendments to the Aadhaar Act that ignore and forget the limitations placed on the use of Aadhaar by that judgment.

The apex court put five significant limitations on the use of Aadhaar. It was specifically held that Aadhaar cannot be made mandatory for earned benefits, like pension. The majority judgment also stated “At the same time, we hope that the respondents shall not unduly expand the scope of ‘subsidies, services and benefits’ thereby widening the net of Aadhaar, where it is not permitted otherwise”.

Section 57 of the Aadhaar Act which allowed the use of Aadhaar authentication by private companies is unconstitutional. Also, Aadhaar cannot be made mandatory for children’s admission to school or for benefits under the Sarva Shiksha Abhiyan.

In blatant disregard of the limitations established by the judgement, the government continues to expand the use of Aadhaar to promote the UID at the cost of fundamental rights.

Libtech India has published an important study correlating the introduction of Aadhaar and deletion of workers names from the MGNREGA. Tracking deletions in the MGNREGA for over a year, they have interviewed over 600 workers between October 2022 and June 2023, and interviewed officials between December 2022 and May 2023. They covered various states, including Andhra Pradesh (AP), Gujarat, Jharkhand, Odisha, and Telangana. They write in the Economic and Political Weekly - “We argue that the complexity of Aadhaar-based interventions and the manner of their rollout has a correlation with the spate of deletions. We begin by unpacking the Aadhaar interventions and assessing their rationale and complexity. We further discuss what official MGNREGA documents say about deletions, and briefly examine deletion practices and resolution procedures on the ground. Finally, we comment on the Aadhaar mandate as a symptom of the union government’s techno-solutionist tendencies.”

Today Aadhaar continues to be pushed as mandatory for almost everything. But as per the apex court order it is not mandatory to link UID with Voter ID.

Five years ago the Constitution Bench of the Supreme Court of India said that Aadhaar could only be used for welfare. In a separate judgment it had allowed the mandatory linking of Aadhaar and PAN cards. But the Union Government continues to try to thrust Aadhaar into every sphere and aspect of people’s daily lives, as it creates a data protection law that exempts itself and anyone it chooses from compliance.

The re-branding of Aadhaar as a new “digital public infrastructure” is particularly concerning as it is deeply misleading, obfuscating the history of coercion and exclusion that the project carries. Who is this public infrastructure for? How will the data of millions of Indian residents be used? Five years after the Aadhaar judgement, the future looks full of challenges to dignity, privacy and liberty.


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Vol 56, No. 16, Oct 15 - 21, 2023