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#India – What next after the SC ruling on #Aadhaar #UID #Biometrics ? #mustread

SEPTEMBER 30, 2013, kAFILA.ORG

 

tKALYANI MENON-SEN

Poor Mr Nilekani. Just when everything was going swimmingly for him – adulatory interviews in the foreign press, tantalising rumours of a Congress ticket for the 2014 polls, lots and lots of votes on a poll to select the Greatest Living Indian – comes another well-aimed spanner in his works from that bunch of litigacious Jokers who have been playing rasta roko with his Batmobile for some time now.

The Supreme Court ruling of 23rd September is curt and unequivocal – a) two other challenges to Aadhar in the High Courts of Chennai and Mumbai to be clubbed with this one and heard by a Constitution Bench; b) an immediate freeze on linking Aadhar to benefits under social schemes; and c) a direction to tighten up the registration process to make sure that only Indian citizens are enrolled.

Every line of this ruling is a painful blow for Aadhar. It’s bad enough that the Court has taken seriously the charge that Aadhar violates Constitutional rights. The implication that there are serious errors in the registration process is even worse, and pulls the plug on one of the main arguments in support of the   – that it will stop leakages in government schemes by weeding out bogus beneficiaries. Worst of all is the decoupling from the “Apna Paisa Apne Haathbandwagon. If the UPA decides not to  jettison the cash transfer scheme – its big-ticket strategy for the 2014 polls – it will find a way to keep it going without Aadhar. Whether or not this strategy pays off, Aadhar will be the loser.

The SC ruling has been welcomed by the “” Campaign which has been challenging Aadhar since its launch in 2010. The UIDAI and its sponsors in the government have systematically ignored and ducked all the questions being raised by the campaign – the lack of legislative sanction or parliamentary oversight for a project of this size and sweep; the invasion of privacy and undermining of personal security; the dubious and unverified claims about the accuracy and stability of biometric markers like fingerprints and iris scans; the threat of “data creep” and the linkage with intelligence databases; the possibility of data collected by the UIDAI being used for commercial purposes without the knowledge or permission of the individual concerned; the inherent vulnerability of a huge national database built up through external contractors; and the overall lack of transparency in financing and running this so-called “pilot project”.

Many of these questions were also raised by a Parliamentary Standing Committee in 2011 which sent the government’s draft UID bill back to the drawing board with a volley of adverse comments. The draft bill vanished from public view, but Aadhar rolled on regardless.

In October 2012 the Prime Minister announced the launch of Aadhaar-enabled service delivery in 51 districts of the country, calmly ignoring the confusions around how exactly these schemes would operate. Would people have to identify themselves with an Aadhaar number at the time of applying for the scheme? Would the cash equivalents of the entitlements under the scheme be transferred to bank accounts that can be operated only via an Aadhaar number? Or will it be both? What happens if there is an error and the system fails to authenticate the identity of a genuine claimant? Would there be a fall-back that does not rely on biometrics? Or would Aadhaar be the only mechanism for determining who is genuine and who is not?

Many questions have also been raised around the implications of Aadhaar registration being available to all residents of the country as opposed to all citizens. If, apart from biometrics, the Aadhaar database contains only basic personal information such as name and address, how will it differentiate between residents and citizens? Is the government proposing to guarantee a basic set of rights and entitlements for all residents? Will those who cease to be residents lose the right to use the card even if they continue to be citizens?

Although the government continues to assert (most recently in the Supreme Court) that registration is not mandatory, various ministries and state governments are moving fast to expand the list of Aadhar-linked services and entitlements. In Delhi, an Aadhar number is already a mandatory requirement for all government services. In Maharashtra, the Chief Minister recently told the Assembly that Aadhar would be made mandatory when enrolment touches 80%.

Such concerns have not bothered the Aadhaar team, which is  focused on getting as many people as possible into the database in the shortest possible time. Mr Nilekani has refused to engage in public debates with his critics.

But this child-like strategy of staying under the bed until the baddies go away will no longer work.    Many of these uncomfortable questions are also raised in the petitions that will now be heard by the Constitutional Bench mandated by the SC order. They are not going away any time soon – like it or not, Mr Nilekani will have to engage with them.

Ironically, the strategy of postponing a public reckoning of the Aadhar adventure has backfired badly. The assertions that have mobilised much of the middle-class support for Aadhar – that it will ensure access to entitlements, that it will plug leakages and reduce wasteful expenditure, that it will empower the poorest by giving them an identity – seem distinctly shaky today, when judged in the light of experience on the ground.

Cash transfers: plugging leaks or buying votes?

The idea of Aadhar as a mechanism that can plug leakages in the system and cut down wastage has a powerful resonance for the average citizen who is concerned about corruption and inefficiency. The reality is very different –  ironically for an initiative that seeks credibility through the language of inclusion, it is now obvious that what Aadhar actually tries to do is exclude those who are deemed to be undeserving of social benefits.

Here is a sample of the kind of argument that is offered to buttress the claim that Aadhar can save money for the government by plugging leakages and eliminating  corrupt middlemen.

            “In Kotkasim, there has been a very successful experiment carried out in direct transfer of cash subsidy to people who have the entitlement to get subsidised kerosene. Three months subsidy was transferred in advance to the bank accounts of the beneficiaries and then they had to buy kerosene at market prices from authorised PDS shops. The ration shop (PDS) owners also had to lift the kerosene at market prices. The arbitrage for adulteration, siphoning off and selling in the open market etc was gone. In four months the off-take of kerosene came down by 87%. Imagine the savings in misdirected subsidies that is possible throughout the state and the country. India does not need more outlays in entitlement programs, but it needs better governance and better deliveries.”

While no one would dispute the fact that there is corruption in the system, there is also evidence that at least some of the shrinkage in demand for kerosene  in Kotkasim is due to factors other than elimination of ghost beneficiaries and disempowerment of corrupt dealers. Many people who used to buy kerosene against their ration cards did not have bank accounts and were unable to get the subsidy. Other reports suggest that people have stopped buying kerosene altogether and have switched to other fuels, because buying kerosene at the market price of around Rs.45 (instead of the erstwhile subsidised price of Rs.15.25) is not an attractive option, especially when cash transfers into their accounts are erratic and irregular. Villagers also point out that many genuine beneficiaries got weeded out because they did not respond to the announcement of the cash transfer pilot from the district administration. In some cases at least, these may be people who have gone to other parts of the country for seasonal work.

It would seem from the above that the supposed saving in government expenditure has been effected not only by the elimination of “ghost beneficiaries” but by the exclusion of genuine beneficiaries who are very much alive. By this logic, the unspent amount under any government scheme can be claimed as a “saving”!

It is equally obvious that Aadhar-enabled pilots such as Kotkasim are not really meant to test out the feasibility of replacing subsidies with cash transfers. The decision to go ahead with cash transfers had already been taken on political rather than economic grounds. Pruning the subsidy bill was the stated agenda, but no less attractive was the vote-getting potential of putting cash into millions of bank accounts in the 2014 parliamentary polls.

Sheila Dixit’s Annashree scheme in Delhi is another instance of the haste to go ahead with cash transfers even without any evidence of their positive impact. The scheme is a watered-down version of a pilot project said to be based on a 2009 study by SEWA (Self-Employed Women’s Association) that covered 150 households in one Delhi basti and found that 60 percent of the women surveyed supported cash transfers. These findings run directly counter to the findings of a study conducted by the Rozi Roti Adhikar Abhiyan, a coalition of 30 Delhi NGOs  covering a much larger sample (4005 households) where 90 percent of the respondents were opposed to cash transfers.

Apart from the small number of respondents, the conclusions drawn in the SEWA study are questionable to say the least. For instance, the report states that those who supported cash transfers “tend(s) to be cautious, and have many questions regarding whether this would work any better than the present system. On the other hand the 40% of respondents who opposed the cash benefit system, opposed it strongly and with conviction” (SEWA Report cited above Pp 12-13). The strange conclusion drawn from this data is that the support for cash transfers became muted because the opponents were more vociferous and dominated the group! The study found that a significant segment (17.5 percent) of women who supported cash transfers did so because they were very poor and needed cash for their other daily needs. Those who opposed cash transfers were apprehensive that the money would be used for expenses other than food, and the amount would not keep pace with inflation.

In normal circumstances, a study as small as this one and with such ambiguous findings would not be considered strong enough to justify a pilot, let alone a policy change on an issue as serious as food security. One is therefore forced to conclude that the real intention of the study was to justify a decision that had already been made.

The decision to move to a cash transfer of subsidies for kerosene and cooking gas nation-wide by July 2013, was taken despite objections from oil companies. Officials at a meeting in October 2012 are reported to have highlighted some key “missing links”: not everyone had an Aadhar card; not everyone had a bank account; banks were not willing to open Aadhar-enabled accounts and the oil companies had not succeeded in exorcising all the “ghosts” from their consumer databases.

Despite resistance from Opposition-ruled State governments and words of caution even from pro-reform commentators, the government has been sticking to its guns on cash transfers. Just before the SC ruling, the Planning Commission announced that 75 more districts are to be added to the 51 where cash transfers  are already being implemented. Rahul Gandhi – who has put Aadhar at the centre of his vision for good governance – has set up an independent monitoring mechanism for the scheme through the Youth Congress network. Complaints are said to be pouring in from grassroot workers about the roadblocks in the scheme – shortage of equipment to capture biometrics, demands from banks for a higher commission on zero-balance accounts – and the PM himself has taken charge of sorting them out.

The roll-out of the LPG subsidy in 20 districts has had to be pushed back by several months – there is agreement that the slowdown is because of “unsatisfactory levels” of enrolment and the problems in linking Aadhar with bank accounts. According to a Planning Commission report, over 1,600,000 people have received cash benefits under the scheme up to March 2013, of whom only 530,000 have Aadhar cards. Although 1,290,000 beneficiaries have bank accounts, only 66,900 of these have been Aadhar-enabled.

Several national banks have reportedly refused to bear any liability for fraudulent transactions in Aadhar-enabled accounts, since Aadhar details have not been verified by the government, but by third-party private operators to whom the process has been outsourced.

Now that the SC has spoken, it will be interesting to see how long the high-level support for Aadhar within the government will continue.  After all, an alternative architecture for direct transfers exists with the National Payment Corporation and is already being used for NREGA payments in several states. Significantly, 30 of the 75 additional districts for the cash transfer roll-out are covered under the National Population Register rather than Aadhar.

Rather late in the day, the government is realising that the exclusionary implications of Aadhar go far beyond the odd botched fingerprint and lost card. The fact is that some of the poorest districts in Odisha, West Bengal, Bihar, UP, Uttarakhand and Chattisgarh have been left out of the ambit of the cash transfer scheme. The reason?  They are not covered under Aadhar.

So much for inclusion.

Who’s looking for identity?

But access and inclusion are only the functional elements of the Aadhaar story. The more emotive script is that Aadhaar gives an identity to millions of faceless, voiceless, document-less people in the country. The identity may only be a number, and the benefits may not flow automatically – still, the thought of millions of people standing up straight and proudly flashing their Aadhaar cards is one that brings a lump to the throat of the average Indian, even without the national anthem playing in the background.

It seems almost churlish to question and critique such a noble idea, or to ask what value a numeric identity, however unique, will add to the lives of those millions of supposedly invisible Indians.

We do know that there is discomfort in nationalist quarters about the idea of Aadhaar being handed out to all residents of India regardless of their nationality or citizenship – this issue has also been raised in some of the petitions that will be heard by the Constitutional Bench of the SC.  The Aadhaar roll-out in Assam and the North-Eastern states was aborted because of concerns that Aadhaar would legitimise “illegal Bangladeshis” masquerading as Bengali-speaking Indians.  Instead, Aadhaar is to be linked to the National Population Register in all the North-Eastern states except Tripura (where everyone speaks Bengali anyway, regardless of their legitimacy or lack of it).

The issue of legitimacy is not one that is restricted only to the North East. To give just one example, the language that is claimed (or ascribed) as the mother-tongue can make or break legitimacy for the working poor in different parts of the country. Bengali-speakers in Delhi, Nepali-speakers in Bangalore, Hindi-speakers in Mumbai, Urdu-speakers in Gujarat have all faced the threat of being “illegalised” at various points in our recent history. If a unique identity was indeed a guarantee of portable legitimacy, the Aadhaar enrolment centres would have to work 24×7 to keep up with the rush.

The issue of identity can be a fraught one for many working-class women in big cities. In Delhi resettlement colonies for instance, one encounters Muslim women whose saris and accents proclaim their Bengali-ness, but who pretend not to understand when spoken to in Bangla [1]. Middle-class housewives in Chittaranjan Park joke about how their Bengali housemaids call themselves by Hindu names but slip up in a dozen ways – forgetting to touch their hands to their foreheads in an automatic pranam when they pass by the puja room, finding clumsy excuses to avoid their usual cup of tea during Ramzan, not taking the day off for Bhaiphota. These stories are usually accompanied with indulgent laughter from the ladies, but the faux Bimalas and Kamalas know that their jobs are directly linked to the need of their employers for cheap and docile labour, as well as their own willingness and ability to assume an identity that is socially acceptable [2].

Would an Aadhaar card make life easier for women on the cusp of two dangerous identities – Bangladeshi and Muslim –  and serve as a guarantee of legitimacy? Or would it have to be hidden like a guilty secret, brought out only in safe situations, among one’s own? How easy or difficult would it be for a Bengali-speaking Muslim woman to fake a Hindu identity and have it legitimised through an Aadhaar card? Would it be worth doing?

Going by previous experience, legitimacy is not conferred by identity documents. Few of the migrant workers in Delhi are entirely undocumented. They can produce ration cards, school certificates, letters from local MLAs, even voter cards to prove that they have been living (and more importantly, working) in Delhi for decades [3]. These documents have not saved them from being repeatedly deported on the grounds of being Bangladeshis, through the Narasimha Rao regime’s “Operation Pushback” in 1992 and “Operation Flush-Out” in 1993, and most recently, Sheila Dixit’s clean-up drive before the Commonwealth games in 2010.

Then, as now, it is their labour rather than their constitutional rights as Indian citizens that provides the working poor with some semblance of security if not complete legitimacy (at least in normal times). For most migrant workers, even this fragile security is conditional on their remaining in the grey zone between legality and illegality. Living in “unauthorised” bastis or squatter settlements; working for employers who duck both taxes and wages; setting up clandestine factories using hazardous materials; selling goods of dubious provenance on roads and pavements; operating unlicensed vehicles; putting their children to work – in most of these situations, survival for the working poor depends not on a verifiable and watertight identity, but on the ability to duck under the surface of the law or slip into the cracks and crevices of the system and become invisible at short notice [4].

Legitimacy usually comes from attaching oneself to a jajman of whatever hue – an employer who might pay less than minimum wages but whose wealth and political clout are respected by the local police constable, or a local politician who might let his goons loose once in a while but values the vote if not the person; caste leaders who enforce adherence to patriarchal codes, but also feel responsible for those who accept their authority [5].

Aadhaar registrations in urban bastis are more often than not carried out under the benign supervision of one or other of these patrons who continue to play their traditional roles as gatekeepers to legitimacy [6]. Old-fashioned paper certificate or new-fangled Aadhaar card, the mechanism is the same. Having all the documents is not a guarantee of getting a card, just as lack of documentation is not necessarily a barrier to getting one.

There are other aspects of reality that the official line on Aadhaar does not acknowledge, for instance the fact that in the eyes of most people, the working poor, particularly migrants, are criminals by default.

The theory that migrants are responsible for crime in the city is widely held and is regularly trotted out by the police and the administration as an explanation for rising crime rates. Domestic workers and their families are routinely hauled in for questioning on robberies in the areas where they work. The Delhi Police is not hampered by political correctness in stating their views on “the servant class”.

            “A large number of immigrant servants and floating laboures, chowkidars, plumbers, electricians and other casual labourers come to Delhi/New Delhi in search of employment. Crime committed by this class of population in Delhi constitutes a big problem…Some of them are of dubious, character and have previous convictions. The employers in many cases have no idea about the man’s character…. It would help the local police greatly if previous convicts, suspects and other shady characters among such private employees are spotted.”

The Delhi Police have been lambasted by the higher courts for their clumsy attempts to concoctevidence in supposed “terror cases”. In such situations, they would surely welcome the idea of mandatory Aadhaar registration for their list of “potential offenders” (a disproportionate number of whom seem to be Muslims and migrants). For instance, fingerprints retrieved from the database could come in handy in filling any inconvenient gaps in the evidence and establishing the presence of the accused at a crime scene. Whether such measures will reduce crime in the city is of course another matter.

The Residents’ Association in the author’s neighbourhood in Gurgaon has already made it mandatory for all domestic workers to have an Aadhaar card. This, it is felt, will be a cheaper and more reliable way of control and surveillance than the cumbersome police verification process.  It is also believed that the mere act of recording fingerprints will act as a kind of vaccine against any criminal tendencies.  Most people would agree that having one’s fingerprints taken and eyes scanned (for instance, while standing at the immigration counter in the US or a European country) generates a vague sense of apprehension and guilt even in the minds of law-abiding individuals, more so if some aspect of identity (such as nationality, religious affiliation or skin colour) is associated with a real or imagined vulnerability.

The experience of migrant workers in Delhi and the National Capital Region suggests that vulnerability is condoned or even encouraged in the move towards a “flexible” workforce. An increasing percentage of the industrial workforce are hired through labour contractors, often with no written contracts and no claim to benefits, who can be hired and fired as needed with no adverse consequences [7].

Significantly, almost all of the workers in factories in the industrial areas of Gurgaon are from outside Delhi, mostly from all the Hindi-speaking states but some from as far away as Orissa. Conversations with these workers often revolve around their feeling of being “outsiders” in Haryana [8] They live far from the city in villages in and around the industrial zone where the local Jat farmers, having sold off most of their land to the government, have built multi-storeyed warrens of small rooms which they rent out to workers. Rents are exorbitant and tenants are required to buy their provisions from shops owned by the landlord (set up conveniently on the ground floor of each tenement) at prices 20-30 percent higher than the market price. Entries and exits are strictly monitored, and the rules are strict (no drinking, no women, no sitting on the roof). The few people who are brave enough to venture onto the main road and look for cheaper places to buy essentials, are liable to find their possessions thrown out on the street and their doors sealed when they come back. “We would never have put up with such things if we were in our own State” is a familiar refrain from the men [9].

The few people who have tried to get an Aadhar card have done so because they have been told that it will make it easier for them to admit their children to municipal schools. The process has proved to be impossible to navigate. Identity documents such as ration cards and driving licences issued in other States are not accepted. What is needed are the usual “local address proofs” – a rent receipt, an electricity bill, a voter id card, a letter from the landlord or employer – which are impossible to come by.

It is not only frustration with the process that deters workers from enrolling for Aadhar. Says one young man who works in the Maruti Suzuki factory:

“What use is this Aadhar card? It’s just meant to make it easier for factory owners to foist false cases on workers, and to track us if we walk out of our jobs. It’s not going to get us any benefits – it won’t get us cheap rations, or a house, or a higher salary.  I’d rather pay a couple of thousand rupees to a tout and get a driving licence – that would at least give me a chance at another job.”[10]

What now?

There are reports that the government is petitioning the SC to allow Aadhar-linked cash transfers to continue. We do not know the arguments being deployed – we do not even know if they reflect genuine concerns, or are face-saving smokescreens. Are cash transfers UPA’s only hope of a comeback? Or will the Food Security Act and the Land Acquisition Act be rolled out to bring in the votes? Is Rahul Gandhi be readying up to drop another of his dramatic stinkbombs, this time on his favourite technocrat?

But while the UPA spinmasters wrestle with these issues, maybe it’s time for Mr Nilekani to come out from that safe dark place under the bed, and start preparing his responses to the Supreme Court. Answering the questions that the public has been asking him for some time now would be a good way to start.

——————————————————————————————————————————————————–

[1]

Author’s unpublished notes of conversations with women in Bawana resettlement colony.

[2]  Author’s unpublished notes from conversations with domestic workers in Delhi and Gurgaon.

[3]  See for instance interviews with residents of Bawana Resettlement Colony in Kalyani Menon-Sen and Gautam Bhan (2009) “Swept Off The Map: Surviving Eviction and Resettlement in Delhi”. Yoda Press.

[4] See for instance A Free Man  (Aman Sethi, Random House India, 2011) and Behind the Beautiful Forevers  (Katherine Boo, Granta Publications, 2012), both works of narrative reportage describing the realities of life for the urban poor).

[5]  See for instance Jha, Saumitra, Vijayendra Rao and Michael Woodcock (2007). Governance in the Gullies. World Development Vol 35 No 2 pp 230-246. 

[6]  Author’s unpublished notes from visits to Aadhar enrolment centres in working-class neighbourhoods and resettlement colonies in Delhi and Gurgaon.

[7]  See for instance reports on industrial units in Gurgaon <gurgaonworkersnews.wordpress.com/>

[8] This section is based on notes from the author’s ongoing conversations and interactions (since January 2011) with industrial workers and their families in Gurgaon as part of Mazdoor Talmel, an informal workers’ platform for discussions and interactions. Some of this material has been published on the author’s blog <grokkinggurgaon.posterous.com> and on <gurgaonworkersnews.wordpress.com>

[9]  Similar accounts of vulnerability and helplessness are documented in a  research study of workers in NOIDA by Anita Trivedi. 2007. “Global capitalism, workers’ spaces and processes of selective inclusion/exclusion: Findings from a newly industrialising area in India”. Leicester Business School Occasional Paper no. 80.  <http://www.dmu.ac.uk/documents/business-and-law-documents/business/occasional-papers/trivedi80globalcapitalism.pdf&gt;

[10]  Author’s notes from a conversation with residents of worker’s tenement in Kapashera, March 2013.

Kalyani Menon-Sen is a feminist activist and writer who lives and works in Delhi. She is a member of the “Say NO to UID” Campaign.

 

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