Explainer: What exactly is at stake in the Supreme Court’s Aadhaar hearings

On Wednesday, more than five years after the first petition against it, a Constitution Bench of the Supreme Court will finally take up the question of whether fundamental rights are violated by Aadhaar, the Indian government’s project to give a 12-digit biometric-based unique identity number to every resident. The challenge to Aadhaar concerns some key questions, such as whether it runs afoul of the fundamental right to privacy, which the Supreme Court upheld in 2017, whether its net effect is to exclude people from the welfare network and whether it enables the creation of surveillance state that changes the balance of power between state and individual.

A five-judge bench, headed by Chief Justice of India Dipak Misra, will hear the cases. Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan make up the rest of the bench. Significantly, none of the senior judges who spoke out against the chief justice’s behaviour last week have been included in this Constitution Bench, but that might be put down to the fact that this same bench heard the interim matters related to Aadhaar earlier. From 11.30 am on January 17, this bench will begin hearing the petitions against Aadhaar.

What is Aadhaar?

Beginning in 2009, the Indian government began enrolling residents onto a platform known as Aadhaar, which provided each enrollee with a 12-digit unique identification number linked to both their demographic and biometric details, including fingerprints and iris scans. The project was initially sold as a voluntary way of improving welfare service delivery and giving those without identification an ID they could use. In practice, however, the government expanded it by making it mandatory for a number of services, forcing residents to sign up for Aadhaar to get access to things they were already due. Today, Aadhaar essentially functions as a catch-all identity proof, that the government would not just like to make mandatory for every Indian resident, but also has to be linked to a number of other services such as PAN card, phone number and bank account.

What are the challenges to it?

Beginning with the first petition in 2012, there have been many challenges to Aadhaar’s validity on a number of grounds. Although there are many nuances to the petitions themselves, the questions being asked are, broadly:

• Can the state mandate a person to share their biometric information? Is that a violation of privacy?
• Does the nature of Aadhaar, in collecting biometric information, enable 360-degree profiling of individuals and the creation of surveillance state so pervasive that it changes the nature of the relationship between citizens and the government?
  
• Should the government be permitted to exclude those without Aadhaar from its welfare delivery network? Does Aadhaar improve welfare?
• Is there sufficient protection for the massive amounts of data that the state has collected as part of the Aadhaar project?

As the Supreme Court began hearing some of these challenges, the government – which by that time was run by the Bharatiya Janata Party – in an effort to save Aadhaar asked the question of whether the Indian Constitution even has a fundamental right to privacy, since it is not explicitly stated. A nine-judge bench in 2017 unanimously concluded that Indians do have this fundamental right, and that Aadhaar would have to be tested against it.

What else do I need to know?

From its very beginning, Aadhaar has been plagued by a number of problems.

Welfare: Remember, it was initially sold as a method to improve welfare delivery and plug the various holes in India’s subsidy services. Instead, Aadhaar turned into a tool of exclusion. Stories from across the country revealed that, far from making it easier for people to access things that they were owed by government, Aadhaar was actually making it harder. To make matters worse, governments have argued that this exclusion is a good thing, because from their end those who were kept out count as ‘ghosts’ who were stealing from the welfare network.

Identity: Soon after it became clear that Aadhaar was failing to deliver welfare more efficiently, the government began touting its other uses – as an identity document. The government started making it mandatory for a host of other things unconnected to welfare delivery, such as attendance for officials or access to state-run hospitals. Again, those who either did not have Aadhaar, or worse, were unable to get it because of the government’s errors, were simply excluded.

This meant that migrant children in Delhi schools, for example, were not allowed back. Similarly, HIV positive people have been dropping out of government treatment programs because they have begun to require Aadhaar for access. Worse, Aadhaar has proven to be bad at doing what it was supposed to: A report in the Wire pointed out that publicly reported cases of ‘Hanumanji’ and an alleged Pakistani spy getting Aadhaar, did not result in those numbers being suspended, and they were in fact still valid and even linked to bank accounts after the news reports.

Legality: Stunningly, Aadhaar was originally introduced without a law, and continued to operate without any legal backing for a number of years, with its architect, Nandan Nilekani, brushing off the need for a legal context. When the government finally did pass an Aadhaar Act in 2016, it had already been around for seven years, with millions of people signed up to it. Moreover, it was pushed through Parliament as a Money Bill, meaning it did not need assent from the Rajya Sabha. Now, nine years later, the data collected by Aadhaar is still not backed by a data protection law.

Privacy: From the beginning, Aadhaar brought up question of privacy. These fall into two categories.

One is intentional: The Aadhaar Act was supposed to only allow authentication of a person, meaning a verification query would only tell an agency whether the person is who she say she is. Instead, the Act allows agencies to draw other demographic information, which has naturally led to concerns about profiling and surveillance, especially now that the government has made it mandatory to link Aadhaar to everything from bank accounts to phone numbers to PAN cards. This means private companies are also using Aadhaar to deliver their services, but in the process collecting information on people and monetising that data.

The second is incidental: The design of the Aadhaar system meant that, though it claimed to be secure, it was leaking data all along. In 2017, the government admitted in Parliament that as many as 210 official websites were found displaying Aadhaar numbers along with demographic data. A Tribune investigation earlier this year found that one could buy access to the entire database for just Rs 500, and print out anyone’s Aadhaar card for Rs 300 more. This information has in the past been used for financial fraud. In response, Aadhaar’s overseeing body, the Unique Identification Authority of India, filed a case against the journalist. And over the last two days it has attempted to roll out new features that it claims will improve security, even though it has insisted all along that its data is already secure.

What else should I read?

Scroll’s entire Identity Project focuses on the many issues connected to Aadhaar. Read the entire series here. For a broad overview:

• Aadhaar shows India’s governance is susceptible to poorly tested ideas pushed by powerful people.
• Learning from Aadhaar: 10 rules for nations on how not to make a mess of their national IDs.
  
• Opinion: Data is the new gold and Aadhaar is the tool to get it.
• How the government gains when private companies use Aadhaar.
• No Aadhaar, no food rations: 11 stories that show the Jharkhand child death was no aberration.
  
• Video: How mandatory Aadhaar authentication is leaving the poor without food rations.