UID ISN’T AN IDENTITY, BUT AN ‘IDENTIFICATION’
Dr Usha Ramanathan,
Expert on Lawand Poverty
A nine-judge Constitution Bench of the Supreme Court on Thursday ruled that right to privacy is “intrinsic to life and liberty” and is protected under the fundamental freedoms enshrined in the Indian Constitution. The judgment will have a crucial bearing on the government’s Aadhaar scheme which collects personal details, biometrics to identify beneficiaries for government welfare schemes. Several petitions were filed in the Supreme Court in 2015 challenging Aadhaar as a breach of privacy. Mumbai Mirror speaks to Dr Usha Ramanathan, an internationally recognised expert on law and poverty who has remained one of the early critics of the Unique Identification Project (UID).
You had red flagged the attack on privacy way back in 2010. What specifically alarmed you?
The UID seemed at the start a project that would give an identity to those who did not have IDs. I didn’t find anything worrisome about it then. I thought it may be something akin to the voter ID card, which I had seen did provide the poor with an identity that they could use. Then I attended a meeting where Nandan Nilekani, Ramsewak Sharma, and others in the UID project were present and they made a presentation which made it clear that it was very different from what I had thought it was. It became significant that this was not an identity, but an ‘identification’ project.
From November 2009 onwards, whenever we raised questions, there was stonewalling and no answers were forthcoming. We have never been given the answers, and have been constantly fobbed off. There was no study or report which could tell us what the implications of the project were. Then, again, the entry of the corporate world into the project was a concern, and it wasn’t clear what kind of a role they had in state functioning. So, it’s not been a good story from the beginning.
They kept saying the UID is voluntary, but made it mandatory. They used coercion at every turn. They flouted every order of the court. The government then told the courts that citizens don’t have a right to privacy and bodily integrity. A project that stoops to such devices plainly needed scrutiny.
Governments across the world are intruding into private domain, often citing legitimate security issues. How do we reconcile these two?
In its judgment, the Supreme Court has said that legitimate state interests can be taken into account. But everything that the state says is legitimate state interest does not acquire that character. Legitimate citizen interest is in securing one’s own data. Imagine what will happen to patients of Antiretroviral Therapy (ART) (an HIVprevention related therapy) if their data is leaked. With one data leak, the entire community is going to be stigmatised. And where is the liability? The UID project is so unconnected with the problem; and it is becoming a tool of mass surveillance or surveillance by the corporates.
The government kept telling the court that UID is to prevent leakage, control subsidy. In its judgment, the Supreme Court has said — listen, this could be legitimate state interest, but you have to respect the right to privacy. You must have a law. The law has to explain the limits of what can be done and what can’t be done. The law will pin them down to what they can and cannot do. In this project, they carried on for the longest time without a law. The law they finally passed was passed by using constitutionally dubious methods, by terming it a money bill, which, by definition it is not.
In a way, this whole constitution of a nine-judge bench was completely unnecessary, because no one had any doubt that privacy is a fundamental right. Even the government did not have a doubt. This can be seen from the government stands in two cases before the Supreme Court. At the same time as the UID petitions were before the Supreme Court, another court down the corridor was hearing matters related to IPC provisions on defamation with a prayer that it is a private law offence and the state doesn’t need to intervene. In large measure, it was about or concerning corporates versus citizens, and let it come under the civil law.
Somewhere between August 8 and August 15, 2015, the government told two different courts in the Supreme Court two different things. In the UID case, the government challenged the right to privacy, and in the defamation court down the corridor, the government told the court that privacy is a fundamental right, and we don’t want this defamation provision struck down because we want to protect this right!
The government stand in the UID case was a strategy. It was only in 2015 when the Supreme Court said it will hear the Aadhar matter and give a decision that the government changed its stand.
So the most important thing about the SC judgement is that nine judges found the time to decide the matter. The government must have been harbouring the hope that it won’t happen for another 100 years!
In your articles, you had said unless the SC looked at the Aadhar petitions, it could lead to constitutional redundancy.
Yes, this judgment brings the constitutional considerations back into the UID project. So far, the government would appear in court, and then keep on flouting the orders of the court. Then, it issued 123 notifications to make citizens mandatorily put your Aadhar number in. Just think about the insecurity this brought into people’s lives. They had rendered the whole constitutional framework irrelevant.
One of my strongest objections in this context is the way the government has been characterising its citizens. It has been telling citizens that they are thieves, duplicates, money launderers, black money holders, terrorists, and if you are not all of these, then come to us and obediently report to us that you are not.
In the scams that happened even as the UID project was being launched, the chief culprits were government officials, politicians, and corporates. And then they start a project that will set in place a system where these three entities will surveil the whole population of the country!
How does it impact the Aadhar enrolment? Does it mean that if someone doesn’t want to enroll for Aadhar, he or she has the right to do so?
There was nothing even earlier compelling us to enrol for Aadhar. It was coercion, not compulsion.
The problem is that from a people who understood the necessity of civil disobedience when there is bad law, we have become an obedient and compliant population. For democracy to thrive though, it requires a certain element of civil disobedience. The very idea of the government wanting to penalise citizens for not getting on to its database is reason enough for challenging this. The constitution is not about the power of the state, but about the limits of the power of the state over the people.
You had mentioned that from Know Your Resident, the grammar of the UID project had changed to Know Your Customer (KYC).
The C in KYC was initially intended for Know Your Citizen. But over time, it became Know Your Customer (KYC). Please remember that the UID project was to be the back office for the National Population Register. The NPR was folded up, and what we have is a wholly outsourced, coercive instrument of mass surveillance that is being created. Questions of consent and consequence have got relegated to oblivion. The three-judge bench will hear and decide on all these matters, soon, hopefully.