REQUIREMENTS OF LAW
On 23 September 2013, the Supreme Court of India made it very clear that “no person should suffer for not getting the Aadhaar card, in spite of the fact that some authority had issued a circular making it mandatory”. It is unlikely that it could be more clearly expressed that the Aadhaar was not to be forced upon citizens. The court also required that “when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant”.
The contempt petitions filed before the Supreme Court are testimony to the bureaucratic disregard for the orders of the Supreme Court. On 16 March 2015, the Supreme Court stated, “It is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities, we do not propose to go into the specific instances. Since Union of India is represented by learned Solicitor General and all the States are represented through their respective counsel, we expect that both the Union of India and States and all their functionaries should adhere to the Order passed by this Court on 23rd September, 2013.”
In its order of 11 August 2015, the Supreme Court documented assurances by the Attorney General of India that Aadhaar would not be used for any purpose other than social benefit schemes. It ordered that the Union of India shall give wide publicity in the electronic and print media, including radio and television networks, that it is not mandatory for a citizen to obtain an Aadhaar card. It further directed that the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen. It also emphasised that the Unique Identification Number or the Aadhaar card will not be used for any purpose other than the PDS scheme and in particular for the purpose of distribution of food grains, etc., and cooking fuel, such as kerosene and LPG. It emphasised that the information about an individual obtained by the Unique Identification Authority of India, while issuing an Aadhaar card, shall not be used for any other purpose, save as above, except as may be directed by a court for the purpose of criminal investigation.
In a modification of the order of the 11 August 2015, in October the Supreme Court permitted the use of Aadhaar for Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO), however impressing upon the Union of India that “it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013”. It also made it clear that “the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other”.
GOOD GOVERNANCE, RULE OF LAW
The additional contempt cases and the recent compilation by the Software Freedom Law Centre (SFLC) on media reports of violations of the court’s orders show that change is needed and that only the PM can effect this. The mushrooming of private start-ups and foreign and Indian venture capital for Aadhaar based financial and technology solutions indicate the spread of the problem , not its containment. The assurances of the Attorney General, the directions to the Solicitor General and the various counsels representing various state governments have not resulted in the bureaucracy implementing the orders of the Supreme Court. There is no evidence that Aadhaar numbers issued after the 23 September 2013 were issued only to persons entitled for it under the law and not any illegal immigrant. This means the Aadhaar issued to fictitious persons, dead persons and illegal immigrants can continue to create ghost and fake Aadhaar numbers.
There is an urgent need to restore the confidence in the government of the people, for the people and by the people.
RE-ESTABLISH FAITH IN GOVERNANCE
First, the faith in the rule of law needs to be re-established. Not by pushing an Aadhaar Act as a Money Bill, but by listening to the wisdom of the Supreme Court’s consistent orders from September 2013.
The UIDAI has admitted that 99.97% of those issued with Aadhaar numbers did not really need them because they were already in possession of adequate identification documents. The inability to prove identity has not been the biggest cause for exclusion or a barrier to access benefits. The use of Aadhaar has added an additional unnecessary layer that has promoted exclusion, organised crime, identity theft, money laundering and corruption.
Conflict of interest is a situation in which a person is in a position to derive personal benefit from actions or decisions made in their official capacity. Many key persons from the UIDAI now head, advise or invest in “solutions” using Aadhaar. Some international organisations are known for their interest in driving Aadhaar linked programmes. Their campaign for the use of Aadhaar and its functional creep is not independent of private interest and overbearing conflict of interest.
Despite orders of the Supreme Court, the continued use of Aadhaar for “seeding” other databases, for KYC, for banking transactions, for verifying private individuals through private companies continues. There is even a rise of private investments and companies to facilitate such “solution stacks”. This is not only an effective way for selective exclusion, but reeks of a nexus between elements of the bureaucracy and private parties.
To serve any utility at all, shouldn’t Aadhaar numbers need to be verified and audited using the original application forms and identifying and verifying all individuals who filled them?
If the common intent of the government and the Supreme Court is to ensure no person suffers through exclusion due to Aadhaar or otherwise, wouldn’t it be prudent to set up an Exclusion Prevention Commission? Such a commission would ensure that not only no person is caused to suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory, but also for any other reasons.The government must restore the rule of law by ensuring an Exclusion Prevention Commission that is independent of bureaucracy and Aadhaar?
Second, the purpose, utility and cost effectiveness of Aadhaar for governance must be justified. Unlike other IDs, Aadhaar cannot replace other IDs, is not even of any utility and adds to costs. The data associated with the number has never even been verified or audited. Furthermore neither the UIDAI nor its registrars, enrolment agencies or institutional users of the Aadhaar number are legally liable for fake or duplicate identities or fraud resulting as a consequence of the use of such numbers. The person whose Aadhaar may be misused is liable for all crimes committed using the number, without any recourse to risk reduction or protection against misuse. Surely the Supreme Court’s restriction on the use of Aadhaar to a few schemes is to ensure there are no undue fraud, unjustified liability, functional creep, purposeless use and wasteful expenditure that threaten to destroy the rights of citizens through a single number? Aren’t these the very reasons the UK scrapped its ID programme?
To serve any utility at all, shouldn’t Aadhaar numbers need to be verified and audited using the original application forms and identifying and verifying all individuals who filled them? Hasn’t Aadhaar already excluded crores of Indians in a bureaucratic scramble to show a large number of enrolments and claim benefits of finding “ghosts” and “fakes” in various databases using Aadhaar, an unverified and unaudited database created by private parties with conflict of interest? Aren’t the examples of exclusion and fraud from Rajasthan, Maharashtra, Karnataka, West Bengal, Kerala, Pondicherry just the tip of the iceberg ready to subvert the democratic process?
It is unclear how a number that is not an identity card is a proof of identity, address, even existence, or a replacement for existing KYC procedures or a basis to de-duplicate other databases. Wouldn’t it, therefore, be appropriate to ensure independent Audit Committees that verify and audit each ID to ensure good governance instead of creating a functional creep of Aadhaar?
The very number that promised to rid the country of corruption has actually created layers of corruption? Is it any wonder that India has moved higher in the list of corrupt nations?
Thirdly, it is necessary to restore people’s faith in PM Modi’s call for minimum government and good governance. The UIDAI fails to explain how 94.7% of the villages without a bank branch or bank literacy will be served by DBT through Aadhaar. It fails to explain why RBI’s NEFT and RTGS cannot serve the better than the Aadhaar based Payment Systems run by a private company, the NPCI. A policy of insistence on Aadhaar and DBT has created new barriers that not only exclude beneficiaries but also open up undetectable channels to siphon subsidy, launder money take bribes and park black money.
Good governance puts public and national interest above private interest. It eliminates situations of conflict of interest. As long as there is a ruling class, it is a private interest. As long as there is privatization of public functions by bureaucracy, there will be conflicts of interest. Peter’s principle ensures private interest will never result in minimum government or good governance.
To replace people’s faith in minimum government and good governance, Prime Minister Narendra Modi will need not only to eliminate the Aadhaar virus but also transform the bureaucracy that has sought silently to put behind his governance reforms by at least a decade with an Indian Public Service allowing every Indian to serve nation building through secondment on contract to each level of the bureaucracy. After all isn’t that what he calls “Team India”?
PM Modi is the only leader with the vision and power to change the parameters of Aadhar in a way that meets his objective of good governance, empowerment of citizens and transparency.
Dr Anupam Saraph, a professor, future designer and former governance and IT adviser to former Goa Chief Minister Manohar Parrikar and the Global Agenda Councils of the World Economic Forum, can be found on Twitter at