Saturday, 26th September 2020, marked two years since the Supreme Court’s 2018 judgement in KS Puttaswamy v Union of India (2019 10 SCC 1),  on the constitutionality of the Aadhaar project. Building on the constitutional rights to privacy, a clear red line was drawn to contain the Aadhaar project, while Justice Chandrachud’s dissent stuck the project down in its entirety. Courts in Kenya and Jamaica have subsequently relied on Justice Chandachud’s dissent, while containing or striking down similar national ID systems. Private parties were expressly ruled out, and mandatory Aadhaar authentication was only permitted for welfare services and PAN-Aadhaar linkage. However, the spread of Aadhaar continued. This primer laid out what was and wasn’t allowed by the Supreme Court's judgement. Despite the Supreme Court’s judgement, the use of Aadhaar continues to proliferate, though the push-back, too, continues. 

• In 2019, some of the petitioners in the Aadhaar petition challenged the Aadhaar Amendment Act, 2019. The Amendment permits private parties to continue to use Aadhaar authentication, albeit on a “voluntary basis”. The challenge to the Act is pending consideration by the Supreme Court. 

• Several notifications, permitting private parties including health insurance companies to use Aadhaar have been issued over the last few months. 

• Review petitions challenging the 2018 Aadhaar judgement are also pending.

• In August of this year, the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020 were released. These expand the permissible uses for Aadhaar authentication for digital platforms for good governance, to "prevent dissipation of social welfare benefits" and to "enable innovation and spread of knowledge”. This widens the scope of Aadhaar beyond permissible limits and needs to be challenged.

As we go through various types of lockdowns and unlockdowns, this quarterly update from Rethink Aadhaar is to share stories, research and resistance, and ask for your support and continued resistance as we challenge state and corporate efforts that want surveillance and techno-solutionism to take over our lives.

It has been several months since our last update, and like everyone else, we at Rethink Aadhaar have been trying to understand the impact of the COVID-19 pandemic, the subsequent lockdown, and its immense financial and economic impact. The country has been brought to a standstill, lakhs of people without jobs, without access to income, social security or care. Migrant workers were particularly impacted, and thousands were left stranded away from their homes and sources of income. 

Image by Kruttika Susarla, for Rethink Aadhaar

A term that has captured the imagination of our time is that it was unprecedented. But a term closer to its impact is how it has exacerbated existing fault lines of caste, race, class, gender and location. It’s fairly easy to trace over those fault lines to see who has been worst affected by the pandemic: who is able to work from home, who is able to access basic resources, stay home in safety, and who is able to have access to pleasure, community and joy. 

The pandemic has made it clear that safety nets, including welfare and social security play a vital role in not just enhancing peoples’ lives, but ensuring their survival, and how unthinkingly adopted technological “solutions,” perpetuate inequities with tragic results. In July 2020, 46-year-old Dukhi Jani, a tribal widow from Odisha died of starvation. Despite the existence of several central and state schemes, Dukhi had no safety net. The Right to Food Campaign, Odisha’s fact-finding team found that she had been struck off the lists for state entitlements, due to non-seeding of Aadhaar number with her ration card. She would not have died if there was even a modicum of accountability and transparency. Bureaucratic apathy is being enabled by technology’s opacity. It’s easier than ever to say: I don’t know. The system doesn’t permit it. 

One would think this could be a moment of collective, social and political introspection, but instead we’re seeing a rush towards more techno-solutionism, with “surveillance capitalists” crawling out of the woodwork. Eerily reminiscent of Naomi Klein’s description in the Shock Doctrine, the public’s disorientation after the disaster is being used to push through radical pro-corporate measures. 

COVID-19 and Aadhaar 

“Digitization is being used to reduce the number of beneficiaries” 

On 23rd March, 2020 the Prime Minister announced a national lockdown with four hours notice, leading to chaos on the streets and across the country. The Right to Food Campaign has collated details of various measures adopted by the Central and state governments here.

Image by Shoili Kanungo, for Newsclick

The PDS, social security pensions, and NREGA are vital sources of support, and Aadhaar linkages in all three have been a source of disruption and exclusion. Tragically, across the country, hundreds of deaths have been caused by starvation, during the pandemic. These are times where the rigidity embodied in technologies like Aadhaar strongly resist the urgent need for empathetic and flexible social policy. In fact, even when the Aadhaar technology “works”, the objectives it supposedly achieves (like ‘efficiency’, ‘targeting’) are the exact opposite of what a government should be aiming for in the middle of a humanitarian crisis. 

Migrant workers, who had already waited weeks to find a way to leave the cities they were working in, were being asked for Aadhaar to board trains. Some were denied rations. Identity verification only added to the abominable indignity they were already facing. 

Social security pensions are a vital source of support for the most marginalised. Rethink Aadhaar joined the Right to Food campaign, Odisha to condemn the Odisha Government’s decision restricting the payment of social security pensions to those whose accounts are linked to Aadhaarm pointing out that an estimated 11 lakh beneficiaries are likely to be deprived of their pensions as a consequence. While temporary relief was given by a follow-up notification specifying that pensions were to be disbursed regardless of Aadhaar enrollment the root problem, that an opaque Aadhaar seeding process was being carried out to remove “ghost accounts,” remains. For more details, see Sweta Dash’s piece on Aadhaar-based exclusion in the PDS and pension schemes in Odisha. 

Digitalising the bureaucracy: digilocker to e-governance  

Rethink Aadhaar joined other digital rights organisations to endorse a legal notice to the Kerala government, for its integrated Local Governance Management System (ILGMS) that mandates Aadhaar. These linkages need to be explored in greater detail, including Digilocker and e-governance linkages to Aadhaar. 

Destruction of the payments systems

Even before the pandemic, Aadhaar linkages had ruined existing payment systems, causing delayed payments, enabling the creation of “ghost accounts” and resulting in misdirected payments.  As expected, these problems have continued. The Aadhaar-Enabled Payments System (AePS) is the most common reason for delays in payment. An estimated 5.3 crore construction workers experienced delayed payments because their bank details weren’t linked to their Aadhaar numbers.  At least two reports suggested that the surge in AePS transactions during the lockdown resulted in a large share of transaction failures. 

Despite this, AEPS and the Aadhaar Payments Bridge Systems (APBS) continues to be used for many Aadhaar-based DBT transfers by the Government. In the MGNREGA, there have been problems related to these payments, with many payments getting rejected with workers not getting the due payment timely. Similarly, transfers related to the PM Kisan Samman Nidhi saw a drop in numbers once Aadhaar Based Payment was introduced. The reasons for this failure are often unclear -- for instance, a mismatch in names in Land Records, bank accounts and the Aadhaar database, might cause payments to fail. 

Several important studies have drawn out the roots and consequences of Aadhaar-related failures in the payments system: 

• This case study by Rajendran Narayanan and Sakina Dhorajiwala documents a particularly distressing case of two women in Jharkhand, with the same name who found out they had the same bank account and the same branch. 

• Sakina Dhorajiwala has also drawn out the lack of accountability in the rollout of  technology, particularly for the most marginalised. The digitisation of welfare delivery systems has happened  at the cost of the marginalised, who continue to bear the brunt of the government’s techno-fetishism. 

• The failures of the ABPS have also been documented here, by Jean Dreze and Sakina.

The Analog impacts of Digital Solutions 

Aadhaar and other digital IDs threaten privacy, and limit access to health care

Linking health to Aadhaar raises serious concerns about surveillance, privacy, confidentiality and ethics related to the collection, storage and sharing of health data of patients. The pandemic offers an opportunity for national and State governments to expand peoples’ access to healthcare as a matter of right, to ensure healthcare is accessible and affordable, and accessibility is not limited by imposing conditionalities such as enrolment in digital identification projects.

Contact tracing 

The lockdown guidelines initially made the Aarogya Setu app mandatory. This was later reduced to a direction to ensure that this is rolled out on a “best effort basis”. The app’s design raised concerns of excessive data collection, with a lack of clarity around how this sensitive health and location data it was collecting would be used, particularly given the absence of a data protection law, or even a law governing the use of the app. It was also inaccessible to the majority of Indians, who don’t own smartphones. A constitutional challenge to Aarogya Setu is pending in the Karnataka High Court. 

Mandatory Aadhaar for testing and drugs 

Several states announced Aadhaar for COVID-19 related tests and medicines. In Karnataka, officials reportedly said Aadhaar cards were mandatory to access health care. Rethink Aadhaar joined JSA Rajasthan and other digital rights organisations to condemn this. In August 2020, the government of Rajasthan clarified that Aadhaar was not mandatory for any COVID-19 related tests. This is a much needed - though limited - win! Aadhaar needs to be withdrawn from all health services. 

Things to watch out for 

Disaster capitalism and more

One Nation One Ration Card: a nation wide overhaul of the Public Distribution System (“One Nation One Ration Card”) is being proposed, which will be rolled out by March 2021, or beyond. While a system to ensure PDS rations can be accessed across the country is important, the requirement to “seed” existing ration cards with Aadhaar numbers will only make this exercise exclusionary. The experience of the past few months have shown that universalizing the PDS is much more urgent than implementing a technologically-intensive system of portability. Reetika Khera has written about this in 2018.

The Personal Data Protection Bill continues to be under review by a Joint Parliamentary Committee, and law enforcement agencies have reportedly argued for wider exemptions.

Health IDs The Government has rushed to develop a health data policy and is advocating the use of Health IDs (under the National Digital Health Mission). The short time frame for consultation has been challenged in the Delhi High Court. The push for the digitisation of health records, is related to the development of a Health Stack which was first described in a 2019 Niti Ayog report, which plans to create a unique ID similar to Aadhaar, for healthcare. Several commercial actors are interested in this, many of whom have been linked to iSpirt. The Scroll carried a handy explainer.

Non-personal data The Non-Personal Data Committee released its report, which encourages wider sharing of non-personal data to derive economic value, and for other purposes like national security, dealing with pandemics and preventing crimes. This threatens to increase surveillance. The government also initiated a consultation on a "Non-Personal Data Governance Framework", which lays out measures to derive economic value and other purposes, including national security. Access Now's submission was a good summary of the privacy, surveillance and other digital rights issues that this framework raises.

Another database to keep an eye out for is the proposed National Migrant Information System. 

Good news (kind of)

PAN linking: The last date for this has been postponed once again, to March 2021.

NPR: The NPR exercise has been pushed to next year. However, this will still require critique and engagement. 

Aadhaar Tribunal: In March 2020, when meeting in person was still possible, we had the privilege of joining other social movements to present evidence of Aadhaar’s many failures before an eminent jury. The Jury Report will be out on the 2nd of October, 2020!  

Janta Parliament: Rethink Aadhaar and Article 21 also anchored the session on technology and surveillance at the Janta Parliament held over August 15th - 20th, 2020. You can read a summary here. 

Other readings

• The security challenges with Aadhaar continue. The instances are too numerous to detail, but Anmol Somanchi has been putting together a useful database of Aadhaar Fakes and Fraudulent Transactions (DAAFT). Just an illustrative example: in August 2020, Altnews reported on the world of facebook groups where on-demand Aadhaar cards are sold and “edited”.  

• We’re excited to read the AI Now Institute’s report on Regulating Biometrics, examining the global spread of biometrics, and measures to regulate it. 

• To see global trends in the fight against digital identity, see Privacy International released a guide to litigating national identity systems. Also check out the Center for Internet and Society’s report on judicial trends.  

Call to action  

The people united will never be defeated

As we move forward, we want to collect information about violations of the Supreme Court’s final judgement and order limiting Aadhaar.

Please do write to us if you know of, or have faced any mandatory demands for Aadhaar in any field not related to government subsidies (such as exams, school admission, pension (even govt. pensions), etc.). We can be found at rethink.uid@gmail.com and contact@rethinkaadhaar.in.

You can use this draft letter of objection if you are asked for your Aadhaar number for any service that isn't related to a government subsidy or benefit. 

Finally, Rethink Aadhaar is run by a team of volunteers. Please write to us if you would like to help out, want to share information, or if you have suggestions on what we should be focussing on!