SC's Aadhaar verdict | Privacy vs Identity

The long battle over identity versus privacy will likely be settled by India's top court in it's decision on the matter

Highlights: 
A five-judge Constitution bench headed by CJI Dipak Misra heard over 30 petitions against the Aadhaar Act and the Centre’s defence of the controversial law before reserving their decision in May.
The hearing went on for 38 days making it the second longest after the crucial Keshavananda Bharti case.
The top court was examining the contention that the 12-digit identification number violates the Right to Privacy.

The Supreme Court bench handling the slew of petitions against the controversial Aadhaar programme (UIDAI) will be issuing its final verdict on the matter on 26 September, 2018. The bench is headed by outgoing Chief Justice of India (CJI) Dipak Misra, who recently presided over the bench that partially struck down Section 377 after a very long battle against it.

The union and state governments had made Aadhaar compulsory to avail a series of essential services including opening and accessing bank accounts, passports, cell phone services and so on. The petitioners argued that it cannot be made mandatory and it was open for compromise because of its huge database that was frequently breached.

But what led Aadhaar from being a simple tool to improve the Public Distribution System (PDS) into the de-facto national indentity that has had privacy advocates run pillar to post and all the way to the apex court to have it struck down? Here's a brief recap of the Aadhaar (Unique Identification Authority of India) issue.

Background
Aadhaar was launched in 2010 by the then PM Manmohan Singh and then Congress President Sonia Gandhi. During the launch, Sonia hailed the project as a part of Rajiv Gandhi's 'vision', adding that the project was aimed at inclusive growth.

The first people to get their Aadhaar cards in the entire country were 1,000 villagers in a tiny place called Tembhali in Maharashtra. The ceremony was conducted with such fanfare that the entire village got a complete makeover for it. The program was introduced in Karnataka on October 8 with the then CM BS Yeddyurappa being the first to enrol for it.


Former UIDAI Chairman Nandan Nilekani

To the former UIDAI chairman Nandan Nilekani, it was more than just a number, it was an ambition: He claimed that in a mere four years, over 600 million people would have an Aadhaar card and that the UIDAI was in talks with the Finance Ministry to make Aadhaar the KYC document of choice for opening village accounts. Nilekani was not unfounded in his claims. In less than five months of the program's launch, over 16.7 lakh Aadhaar numbers had been generated and nearly half of it came from Karnataka alone. By the time the end of the year rolled around, 10 crore people had enrolled for Aadhaar with 75 lakh of them from Karnataka.

Troubling Times
Trouble began to foment a little over a year after Aadhaar's introduction when the MHA expressed apprehension that enrollments could be faked due to loopholes in the process.

In 2012, the first signs of Aadhaar becoming mandatory came to light, when three oil companies initiated a pilot project in Mysore to have LPG refills linked to the ID. Then, in 2013, banks began asking for Aadhaar to provide services. In 2013, the 12-digit ID became the ID to link with bank accounts for getting LPG subsidies.

In September 2013, the SC began hearing the first of what would become a series of Aadhaar petitions. The petition was to examine the usefulness of the Aadhaar card.

At the same time, several state governments decided to make Aadhaar compulsory to avail various public services.

Less than two weeks later, the court ruled that a lack of Aadhaar was not grounds to deprive people of any benefit or service. Responding to the verdict, then  Minister of Petroleum and Natural Gas Veerappa Moily said the Aadhaar-linked Direct Benefit Transfer (DBT) scheme for subsidised LPG supply would continue and the government would move the apex court for a 'correction' in the order.

In October, the union cabinet cleared the National Identification Authority of India Bill, giving statutory status to the UIDAI. Shortly after, the UIDAI became one in a long line of petitioners before the apex court in favour of the Aadhaar programme.

Months before the Congress government in the Centre would fall, the apex court issued a directive to have any and all instructions that made Aadhaar mandatory to be withdrawn.

After coming into power in 2014, Narendra Modi decided to review the progress of the Aadhaar project and discussed the possibility of using the platform to resume the DBT of subsidised schemes.

The Ministry of Home Affairs made a surprise switch during Modi's early days as the PM: it went from 'being concerned' about Aadhaar as address proof in telecom to a wholehearted supporter of the programme.

In the coming months, the government mooted making Aadhaar mandatory for various services, including passports (though it backtracked on that shortly after), PAN cards and Jan Dhan accounts, but the apex court was unconvinced. The Centre eventually said that Aadhaar was not mandatory for public services.

The year 2015 saw a lengthy back and forth between the apex court and the Centre on the Aadhaar matter, with the Centre saying that Aadhaar couldn't be rolled back and the apex court directing the Centre to ensure Aadhaar did not become mandatory and refusing to alter its order and expand the uses of the ID card.

One Aadhaar to rule them all

In March 2016, the government introduced the controversial Aadhaar bill as a money bill in Parliament. Opposition parties accused the government of using the money bill as a tool to bypass the Rajya Sabha, where the BJP did not hold a majority. However, the bill passed in the Lok Sabha, a move that was welcomed by Arvind Panagariya, and although the Congress, which held a majority in the Rajya Sabha, returned the bill with 5 amendments, the BJP refused them and the Bill was deemed passed. Speaking on the matter, Arun Jaitley reiterated that privacy was not an 'absolute' right.

In the same year, oil companies began demanding Aadhaar numbers be seeded to bank accounts, threatening to cut off subsidy of customers who did not comply. A day later, the government made Aadhaar mandatory for scholarships and higher education fellowships. Then came eKYC for mobile connections, and PayTM followed.

March and April saw a slew of 'Aadhaar now mandatory' tags to various services, including LPG for poor women, crop insurance, IT returns (except in Assam, J&K and Meghalaya), getting a new SIM, vehicle registration, sand purchases, transactions over 50K rupeesdeath certificatespost office deposits and food under the National Nutrition Mission. It truly was one Aadhaar to rule them all, giving birth to the term "voluntarily mandatory".

The leaks in the pipes

For some time now, Aadhaar has been at the centre of many privacy-related concerns, with advocates citing several leaks of the high-value data as an argument for the lack of safety of the programme. Recently, The Tribune, a newspaper, found itself on the wrong end of the law for publishing a report on a massive Aadhaar leak, something that got the notice of Edward Snowden, who made a strong comment against Aadhaar and the government. Not long after, a French hacker going by the pseudonym Elliot Alderson took to Twitter to describe some glaring holes he found in the mAadhaar app. But no matter what the leaks were or the perceived impact of them, the UIDAI and the government maintained that Aadhaar was safe. The confidence of the government was such that KK Venugopal, India's Attorney General, claimed in the apex court that the data was safe behind "13 feet high and 5 feet thick walls", a comment that earned the government much mockery at the time. Taking this one step further, Ajay Bhushan Pandey, UIDAI's CEO, said that breaking "one bit" of the Aadhaar encryption would take more time than the age of the universe and the fastest supercomputer on Earth (nevermind the fact that the universe is estimated to be nearly 14 billion years old)

Not deterred by the mockery, the TRAI chairman, RS Sharma tweeted his Aadhaar number, inviting anyone who would be so inclined to cause him harm. The result of the 'challenge' was up in the air, but the government did get some ammunition in its side by way of Bill Gates, who claimed Aadhaar did not have any privacy issue and he would move the World Bank to have other countries emulate it.

Legal battles continue

Between the continued denial, confusing statements meant to advocate faith in the programme and FIRs being filed against whistleblowers, privacy activists were not convinced by the way the government and the UIDAI were handling the reports of Aadhaar data leaks. Emboldened by the Supreme Court's Right to Privacy verdict, they decided to move the court to settle the Aadhaar matter once and for all. While the court was hearing petitions concerning Aadhaar on a case-by-case basis for a while, it was in the Fall of 2017 that the apex court agreed to hear a plea on the validity of the Aadhaar Act and set up a 5-judge bench to hear all petitions on the programme.

One of the first things the apex court did was have the deadline for linking Aadhaar with various schemes to March 31, 2018. Soon after, the UIDAI asked all banks to expedite linking of Aadhaar to bank accounts but said it was in line with the order the SC gave.

As 2018 rolled around, all eyes turned to the apex court as it was to give its verdict on two major matters in the country: Babri Masjid and Aadhaar. Not long after resuming operations, the apex court pulled up the UP government over Aadhaar for homeless people, asking them if the people did not exist for the government. All this, as the UIDAI introduced tools like facial ID and virtual ID as 'shields' to protect user data.

During the legal battle around Aadhaar, the petitioners against it relied on arguments surrounding people being forced to part with personal data without any guarantee of safeguards to get an Aadhaar card, an argument that did not hold much weight with the apex court.


The Supreme Court of India

The apex court held that there was a need to balance an individual's privacy and the State's responsibility and that the Aadhaar Act could not be declared unconstitutional because of citizens being denied services for want of the ID card. All the while, the Centre maintained that it would not deny people their due if they lacked an Aadhaar.

In March, the apex court indefinitely delayed the last date for linking Aadhaar to services, until the bench handling the petitions delivers its verdict.

Continuing its arguments, the Centre quoted Rajiv Gandhi's statement that only 15 paise of each rupee spent for the people actually reaches them to defend Aadhaar.

In March, the apex court expressed concern about bringing people "face to face" with authorities through Aadhaar, saying that the State should reach them to accord the benefits of welfare schemes. Later, the apex court and the Centre had a strong exchange in regards to the Supreme Court order of mandatory verification of SIMs and how the Centre used it as a tool to make Aadhaar mandatory for the task. Finally, in May, the apex court decided to reserve its verdict on the Aadhaar matter.

READ MORE: SC declares Aadhaar Constitutionally valid with caveats

READ MORE: Aadhaar Verdict: What stays, what is struck down

 

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