Updates

Update January - February 2021

COVID-19, Co-WIN and curtailing the constant hunger for data

In this round-up of Aadhaar related updates, we cover the issues related to Aadhaar and vaccine delivery; the continued expansion of Aadhaar; what’s wrong with the proposed ONOR scheme (a lot); how Kerala is forcing Aadhaar upon people who want to access e-governance measures, and the Supreme Court’s recent decision in the Aadhaar review petition. 


  1. Aadhaar and the Vaccine 


First, what’s happening with the government's proposal to link Aadhaar to the Co-WIN app, for vaccine delivery? 

While the government has clarified that Aadhaar usage for authentication will be voluntary, states are being pushed to use Aadhaar as the “preferred mode.” According to Medianama, the Government has been recommending that States and Union Territories use Aadhaar in the COVID-19 vaccine rollout in order to “weed out proxies”. 

A few weeks into its debut, there have already been complaints of glitches in the Co-WIN application, which has slowed down the vaccination drive. The experience with Aadhaar has taught us that the word voluntary can mean its exact opposite. Last week, Rethink Aadhaar released a statement expressing it’s concerns with this proposal. 

India has a steady track record of vaccine delivery; and routing all vaccinations through an application, and introducing Aadhaar as a “voluntary but preferred” mode of authentication creates a dependance on technology, and forces citizens to hand over their privacy in exchange for a fundamental right. 

The vaccine drive can turn into a large-scale data collection process for the Government, and connected private players. The link between data collection and the upcoming Digital Health ID system remains to be seen.


Beyond glitches, privacy violations abound

The entire process is rife with privacy violations. Neither the trial nor the Co-WIN application have privacy policies, which puts the health data of citizens from the world’s largest vaccination drive at risk.There have been reports of hospital administrations sharing Aadhaar details (without consent) of its staff to register them on the Co-WIN application.

Distinct extremely sensitive data silos are being integrated without any safeguards. For instance, the Election Commission of India has agreed to provide the Ministry of Home Affairs with electoral data for the vaccine drive. The Commission claims it will only provide “booth-wise information of voters above the age of 50”, directly to the respective states, as opposed to handing the entire data to one Ministry. While it is a welcome step that an attempt is being made to limit the extent of data being shared, the  usage of voter data without adequate safeguards or notice, threatens their right to privacy. 

Any intrusion into the fundamental right to privacy has to be necessary and proportionate. Voters have not given their consent to use their data in this manner; and this decision has been made without consulting relevant stakeholders. According to established data sharing principles, and the provisions of the Personal Data Protection Bill, 2019, data collected for a particular purpose must be used for that purpose only. Usage for any other reason can only be done after getting the informed consent of the data subjects (in this case, the voters whose IDs are going to be transferred). 

There has been a rise in the number of Aadhaar enrollments ahead of the COVID-19 vaccine rollout (4.5 million registrations in December and 2.9 million in January). According to a news report by the Economic Times, this came right after the Prime Minister’s announcement in which it was said that the Aadhaar would be used to identify people for the vaccination. An official went so far as to call Aadhaar the ‘backbone of the vaccination’. 

Rethink Aadhaar firmly stands against the pressure being put on citizens to link their Aadhaar numbers. When the Aarogya Setu application was made mandatory in 2020, many pushed back against this illegal surveillance mechanism, with some success when the Government, and Courts took a step back and decided that it could not be made a condition for exercising basic rights like the freedom of movement. 

There is a need for a similarly strong community push to encourage people to stand firm and exercise their right to provide other identity cards as proofs, like the voter ID or a drivers license, in line with the objectives of purpose limitation, data privacy and the fundamental right to privacy of all citizens.



II. The Threat of “One Nation One Ration” 

A parliamentary panel is being set up to discuss how to take forward the One Nation, One Ration (ONOR) scheme. The scheme aims to modify the current Public Distribution System (PDS), which currently allows ration cards holders to get subsidies only from the ration shops located in their States, to permit them access to other states. The government claims that the lack of “portability” affects communities like inter-state migrant workers, who are left to fend for themselves when they move to another State for employment. The Central government proposes to seed the Aadhaar number with ration cards, enforce biometric authentication of beneficiaries across the board, and “automate” fair price shops located across the country. As the experience with Aadhaar showed us, this would be a recipe for disaster. 

While the idea for the scheme has been on the cards for some years now, the urgency of its implementation was expressed during the lockdown that began in March 2020 - as scores of migrants were left to fend for themselves. The benefits of the scheme however, are overstated. It promises more than it can deliver. 

It is important to pose the following questions:

  • How are the logistical and supply chain management issues that are likely to arise to be fixed?  Not all states offer the same PDS entitlements. 

  • It ignores the realities of migration where often only one person from a family - usually a male member - migrates. Who will benefit from ONOR?  

  • This will only apply to existing ration card holders. Remember that in 2020 the government temporarily added 8 crore migrants to the PDS lists - an indication that scores of vulnerable people have been left out of the PDS.

As with Aadhaar, ONOR promises a big-ticket, big-database without studies on migration patterns, and in place of less intrusive alternatives. You can read more about it in our explainer here. 

  • Universalization of the PDS (i.e. wherein any citizen can walk in to buy subsidized grains from the PDS) is far more important than implementing a technologically intensive system of portability (ONOR).

  • For migrant workers who are in urban areas, community kitchens like Amma Canteens have proved to be a vital source of support, and a much more viable solution.


A bleak reminder of how Aadhaar continues to affect peoples’ lives 

The excellent team at Roadscholarz has put together a summary of the exclusions caused because of Aadhaar. 

Please also see this report on how JAM has impacted pensions and PDS delivery in Odisha.

As we know Aadhaar has enabled a whole parallel industry of frauds. 


III. Updates from the Courts

Disappointingly, the Supreme Court in S.G. Vombatkere and Another versus Union of India and Others (Writ Petition (Civil) No. 829 of 2013) dismissed a petition asking for a review of the Aadhaar judgement (2018). Justice Chandrachud was the only judge on the Bench to dissent. 

The majority felt that no grounds for review were made out as a “change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review.” This ignored all the other grounds raised in the review petition. 

Justice Chandrachud in his dissent referred to the judgement in Rojer Mathew v. South Indian Bank Ltd. in which it was held that decisions of the Speaker on whether a Bill is a money bill (Article 110 (3) of the Constitution) is subject to judicial review. The bench in the Aadhaar judgement however did not deal with the issue of what the repercussions would be if the Bill was found not to satisfy the necessary conditions of Article 110. 

It is important to remember that the Bench strength in the Rojer Mathew case and in the Aadhaar judgement were the same - constitution benches (5 judges). Thus, this unanswered issue posed a conflict between two coordinate judgements. The Rojer Mathew judgment decided that the issue would be referred to a larger bench in the Supreme Court for its consideration. 

One of the main points that the review petitions challenged was the question of whether the Aadhaar Act constituted a Money Bill or not. Justice Chandrachud observed that it was a constitutional error to think that there was no grounds for review. While the larger Bench’s eventual judgement on the above question would be impactful, it was equally important for this Bench to decide on the current issue. He relied on the judgement in Kantaru Rajeevaru v Indian Young Lawyers Association, (which was decided by a nine judge bench in the Supreme Court) - instead of dismissing the review petitions, they could be kept pending until the judgement of the larger Bench comes through. 


IV. Kerala: Aadhaar as Gatekeeper 

In August 2020, Kalyani Menon-Sen and Bezwada Wilson had sent the Kerala Government a representation challenging the use of Aadhaar for user registration for the Integrated Local Self Governance Management System (ILGMS), an portal to access e-governance services. 

The Kerala Government responded saying that there were alternate means through which citizens could apply through offline means, such as for instance, by visiting the local body in person. 

Kalyani’s response raises some pertinent questions about how Aadhaar is being used as a gatekeeper to mediate the citizen’s right to the internet, and to access governance services remotely: 

  • If Aadhaar is not required for the offline mode, then why make it mandatory for the online mode of registration?

  • Due to the pandemic, it might be difficult for citizens to physically go to the offline centres. In that case, applying through the e-filing mechanism might be a more convenient option for them. By making the Aadhaar number mandatory, it may act as an obstacle for citizen users.

  • In 2019, the Hon’ble High Court of Kerala recognized the right to access internet as a fundamental right. By making Aadhaar number mandatory for the e-filing process, it might restrict a citizen to completely enjoy this right. If they do not have an Aadhaar number they will not be able to register with the website.

  • Alternate IDs like the voter ID can be made an option for the e-filing registration. These IDs can also be used to authenticate the user.

 

V. What we’re watching, reading, thinking about

This excellent excerpt of an essay by Sandeep Mertia from a book titled ‘Lives of Data’ - 14 essays on the computational culture in India. The foreword has been written by Ravi Sundaram, from the Institute of Network Cultures. Please also look for Anumeha Yadav’s summary of her years documenting the impact of Aadhaar, in the same book which is available to download.

Usha Ramanathan’s talk on the need to reimagine what tech can do for us.

Jean Dreze, Reetika Khera, Isabel Pimenta, and Prankur Gupta spoke to the Economic and Political Weekly about the problem of food security in India, and what Aadhaar has got to do with it. 


Whose Data? Our Data! 

India has claimed that FastTag will be made mandatory from February 16, 2021, while we have a minimal understanding of how this data is going to be used. In February 2021, the Government admitted that it made Rs. 11 crore from selling peoples’ vehicle data to private parties. 

Get in touch!

  • Please write to us if you have stories of Aadhaar-related coercion to share - schools, private employers, or for accessing essential services.  

  • Engage with our legislators: 

We encourage you to send in questions or issues related to Aadhaar or data protection which can be raised in Parliament during the Budget Session. (From  March 8 to April 8, 2021) You can email Maadhyam at maadhyam.connect@gmail.com. 

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