Rethink Aadhaar and the Article 21 Trust condemn the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020 released yesterday, which expand the permissible uses for Aadhaar authentication, for good governance, to "prevent dissipation of social welfare benefits" and to "enable innovation and spread of knowledge." 

Although only permitting “voluntary” use, these rules are against the letter and spirit of the 2018 Puttaswamy judgement on Aadhaar, wherein a Constitutional Bench of the Supreme Court limited the use of Aadhaar to "Section 7" cases, i.e. linked to subsidies, benefits arising from the Consolidated Fund of India. While permitting this limited use, the Court cautioned against the proliferation of the use of Aadhaar, holding that "their scope is not to be unduly expanded thereby widening the net of Aadhaar". It also  specifically excluded children from the scope of Aadhaar, and struck down attempts by the government to make Aadhaar mandatory for bank accounts and for cellphone records.

Particularly when read with the 2019 Amendment to the Aadhaar Act, the Rules are part of concerted attempts to cross the red lines drawn by the Supreme Court’s judgement limiting the use of Aadhaar to a limited category of subsidies and benefits. The rules have been framed under S.53(2)(aa) of the Aadhaar Act, which was inserted through the 2019 Amendment, which is presently under challenge in the Supreme Court.

The stated justifications for the rules are vague, and are, at best an attempt to put old wine in new bottles. For one, it’s ironic that these rules are being pushed through on the grounds of “good governance,” when the Aadhaar project has been shot through with total disregard for the norms underlying this concept: respect for the rights of citizens, respect for democratic processes, and accountability to citizens. The term itself is quite broad -- every government service can fall within the ambit of good governance, in effect nullifying the Supreme Court's judgment to limit it to subsidies and benefits.

Second, the government has long claimed that Aadhaar linkage prevents “dissipation of social welfare benefits”, without any evidence at all to back this claim up. In 2016, the government used “obviously fabricated” World Bank Development Report numbers to justify their push for Aadhaar, claiming it would lead to $11 billion annual savings, a figure that was later shown to be based on wild conjecture. It is based on a flawed notion of how leakages work within welfare systems, choosing to treat people who depend on these entitlements as potential defrauders, over systemic reform. What this approach has led to is mass exclusions of peoples from their entitlements, because of authentication, linkage or other failures. A widespread consequence, as Khera has pointed out, of Aadhaar authentication is that it has given more power to middlemen and disbursal agents, while its centralised system prevents localised grievance redress. 

The third purpose of the rules, the “enablement of innovation and spread of knowledge,” should be seen in light of other attempts being made by the government to extract economic benefits from data. It is unclear how the government seeks to justify the use of Aadhaar Authentication for enablement of innovation. This is clearly with the intent of using data and activity trails so generated for commercial exploitation. 

Finally, including the concepts of voluntariness and consent cannot make a project that is unconstitutional on account of violation of fundamental rights, constitutional. There can be no waiver of fundamental rights and the State cannot put its citizens in a situation where they are constrained to “voluntarily” offer up these rights in exchange for an ostensibly efficient or convenient system. 

The overarching concern with any linkage to Aadhaar or Aadhaar-like measures is that it continues to pose serious risks to safety, security and health of the population, and compromises the sanctity of any database or project associated with it. 

The pandemic has shown us all the dangers of the technology divide, and that techno-solutionism comes at a high human cost. As we pointed out in June 2020, Dukhi Jani, a 46-year old tribal woman died of starvation, after her ration card was cancelled because of Aadhaar-related failures. Exclusions due to Aadhaar are antithetical to good governance, if the objective is to enable citizens to easily access government services.