Digital India is increasingly looking like a place where our virtual shadows are more empowered than our physical bodily selves. Armed with a number that is supposedly unique, and tied to a scan of body parts such as fingerprints or the iris, the government wants to prove that now it has the capability to connect each and every available public and private service, facility and activity to Aadhaar, all in the name of official efficiency and transparency.
Only, that number has been found to be leaking from more and more government-owned websites, while private entities have been caught selling the precious Aadhaar data for profit.
In other words, the very panacea that the government thinks it has developed to smoothen state functioning is the one that is a digital ticking time bomb, something that could be at the heart of massive cyber security breaches simply waiting to happen.
As the Aadhaar-PAN mandatory link case was heard over a two-week period in the Supreme Court, what became evident was not how the government intends to improve its functioning via Aadhaar, but rather, how condescendingly it views the fundamental rights of the citizens it’s supposed to govern with their consent.
And that much of everything to do with Aadhaar infringes on a number of citizens’ rights and civil liberties is a virtual non-issue for the government, something it can just brazen out, refuse to acknowledge and thereby make it disappear from public conversation.
For the government, a citizen’s fingerprints, iris scans and other unspecified future additions to UID (unique identity) are more important than the citizen herself/himself; the digital copies of body parts tied to UID of far greater significance than the citizen’s right to absolute bodily integrity. In other words, “I’m UID’d, therefore, I exist”. Not the other way round.
Aadhaar-PAN mandatory link
The Supreme Court hearing is about Section 139AA of the Income Tax Act, a new amendment that was brought in surreptitiously via the Finance Bill, 2017. According to Section 139AA, the submission of Aadhaar, the 12-digit biometrics-based UID number for residents of India, would be compulsory to file income tax returns, and to obtain and retain the Permanent Account Number (PAN).
Unless the SC stays it or overturns the ruling, it would be a penal offence from July 1, 2017 to not submit one’s Aadhaar/UID number, or at least proof of enrolment, in order to pay income taxes in India.
In other words, not having Aadhaar would effectively be a criminal offence because it would turn perfectly law-abiding, tax-paying citizens into non-compliant ones on account of not having been able to pay one’s taxes.
Therefore, Section 139AA discriminates between citizens having Aadhaar and citizens who choose not to have one by effectively turning the latter into non-tax-paying criminals.
Essentially, Aadhaar-PAN mandatory link violates Article 14 of the Indian Constitution, which guarantees the right to equality.
The Aadhaar-PAN mandatory link is a patently illegal and unconstitutional demand by the government, and the petitioners have challenged it on constitutional grounds. But the significance of the Aadhaar-PAN mandatory link case is not just limited to its immediate context, which in itself is huge.
It has a direct bearing on a number of issues connected to citizen’s right to bodily integrity, “informational self-determination”, personal autonomy, choice, equality before eyes of law, and of course the right to privacy, a core issue from which the petitioners were compelled to decouple the current hearing.
Aadhaar infringes on a number of citizens’ rights and civil liberties.
Advocates Shyam Divan and Aravind Datar, the petitioners’ counsel, emphasised that Aadhaar acts as an “electronic leash” and creates potential for constant and continuous surveillance by the state.
The UID is intended to be connected to almost each and every facility and service, whether government or commercial, and is fast becoming a prerequisite to conduct any digital and other transaction as citizens or residents of the country.
Even though the Aadhaar Act 2016 specifies clearly that Aadhaar is voluntary, the government is making the UID an integral part of every aspect of being a resident/citizen of the country.
In stark contravention of the very law from which it stems, Aadhaar is either flouting the norms that guarantee its voluntary nature, or is hiding behind the largely nebulous nature of the law itself, particularly the vague phrasings, to create conditions in which it is made mandatory for availing services via countless tiny but incremental gazette notifications.
This is unprecedented. No other country has a unique identity based on one’s biometrics that is essentially the one-stop entry pass for being a citizen/resident of a place.
The social security number in the United States is not even remotely close to the gargantuan powers that Aadhaar in effect has over the lives of citizens. Moreover, SSN isn’t biometrics-based and it doesn’t even have a photograph connected to it, forget being tied to each and every service.
Access versus Aadhaar
Instead of being a tool to ease out access, Aadhaar is fast becoming a hurdle for public distribution system and citizens’ right to access government facilities and welfare services. In Jharkhand, many have been sent back without crucial food rations because the Aadhaar couldn’t be authenticated on the POS machines.
This, despite the beneficiaries having enrolled and received their Aadhaar numbers in lieu of the biometrics such as fingerprints and iris scans. In some cases, the MGNREGA wages were transferred to someone else’s account, and many have gone unpaid because errors in Aadhaar linking have left them without any wage support.
Coercion, too, is becoming a big factor. Aadhaar is being issued to newborn babies in Haryana even before they are being birth certificates. Delhi government schools are asking students to enroll for Aadhaar if they wish to study at state-aided institutions. They are shutting doors to migrant children. Mid-day meals would be denied to students from poor backgrounds and children would be made to go hungry if they fail to produce Aadhaar after July 1.
On these pages we had earlier asked, what kind of government wants kids to go hungry because they don’t have the voluntary-mandatory unique identity?
State control on body
When it was the government’s turn to defend Aadhaar from the grave allegations made by the petitioners, the attorney general of India, Mukul Rohatgi, questioned whether bodily integrity is absolute.
He furnished examples such as parting with fingerprints on property papers, iris/retina scan to apply for visas to foreign countries, breath analysing to ascertain a case of drunk driving, and even DNA testing in case of forensic analysis in criminal cases.
But, as Justice Sikri, one of the two judges in the bench hearing the Aadhaar-PAN mandatory link case, pointed out, in none of the instances are the biometrics stored and connected to each and every facility that the resident/immigrant/citizen would avail to lead a normal life in his/her chosen place.
The coercive application and encroachment of Aadhaar into our ability to lead normal, healthy lives and to enjoy the constitutionally-guaranteed freedoms, is immeasurably greater, something that cannot be allowed to happen or go on in the name of governmental efficiency.
During the Finance Bill, 2017 debate in Lok Sabha in March this year, Union finance minister Arun Jaitley had fleetingly mentioned that DNA is not being ruled out yet from being included as part of the biometrics-based UID.
The repetitive clause “as specified by regulations” ensured that those intentional blanks in the Aadhaar Act legalese could be filled as the government pleases, with rudimentary debate in Parliament and via inconspicuous and insidious gazette notifications.
With AG Rohatgi essentially admitting that for the government, which he represents, bodily integrity isn’t absolute, a legal can of worms could be opened that would further infringe on our personal autonomy and bodily integrity.
What next? Compulsory blood donations? Mandatory vasectomy after 50? Forcing organ donations? Specifying the number of children one can or cannot have? Menstrual scanners in places of worship (as someone had jokingly suggested during the Sabarimala debate)?
And in each of these possible instances, the Aadhaar number would act as the government’s informant, ferrying out unsavoury details about the citizen’s life and laying it all out before an ever more controlling and obsessive State.
Naturally, women, Dalits, transgenders, religious and sexual minorities, who are anyway part of vulnerable and marginalised groups, would be far more susceptible to state policing of bodies and possible discrimination via Aadhaar than upper caste Hindu men, simply because the latter’s entrenched privileges will ensure the least surveillance for themselves.
Dissidents, intellectuals, political challengers, journalists asking tough questions, human rights activists and anybody not on government good books is basically far more vulnerable to state’s coercive practices of indirect control if Aadhaar is made mandatory, one-stop mode of identification.
Turning Aadhaar off at the beck and call of a vindictive government would be the easiest way to have the dissident mired in a digital prison-house minus any accountability.
Turning leaky Aadhaar off
Why is it that the government and the UIDAI want everyone to have Aadhaar but cannot guarantee that the details connected to the UID wouldn’t be a hack away for those with the cyber tricks up their digital sleeves?
Report after report on Aadhaar numbers and associated sensitive details such as bank account number, address, date of birth, photograph, PAN, etc, are being unwittingly leaked from various government websites haven’t caused the least fluster among those singing paeans of the UID.
Only the UIDAI is authorised to take action in case of a security breach, even though complaints keep piling up. And will the UIDAI take action against the government whose websites are leaking confidential Aadhaar data?
This is a security minefield waiting to blow up and yet, both the government and UIDAI are on a massive ego trip to bludgeon us with compulsory Aadhaar.
What happens when Aadhaar is turned off with just an SMS notification to the user? His/her life comes to a grinding halt because s/he’s unable to avail any of the services that have been clandestinely and unconstitutionally linked to Aadhaar.
Suspending or invalidating an Aadhaar number for no fault of the citizen leaves the citizen minus any ability to lead a normal life of work and commercial transactions, without any safety nets, whether online or offline.
In other words, government wants to have the benefit of controlling citizen’s lives and by extension bodies via Aadhaar, but would have none of the responsibility once the edifice starts crumbling, as is already happening.
The government is imposing digital and biometric tyranny on its own citizens, violating human rights and innumerable civil liberties in its bid to have total and absolute control of what we do, where we go, what we buy, how we travel, what we watch, what we eat, what we say, and whom we choose to mingle with.
It’s typical of the patriarchal State to demand that we forfeit our freedom because it guarantees us benefits. But in a constitutional democracy, laws exist to protect the citizen from the tyrannical nature of the State, to see to it that we do not degenerate into textbook totalitarianism in the name of efficiency.
That is why it is crucial that our constitutionally guaranteed rights and freedoms are not infringed in the pretext of bringing us a stronger government.
Neither a smartphone, not a biometrics-based UID can, however, replace real and effective governance that is in sync with what the citizens want and need, without stepping on their rights.
Hoodwinking the citizenry and turning it into a battalion of 1.3 billion virtual slaves is exactly what is on the cards if the Aadhaar is not discontinued, or at least ensuring that it remains a voluntary proof of identity and nothing more.