In August 1906, the Asiatic Law Amendment Ordinance was signed into law in the Transvaal, in South Africa. It was a humiliating and discriminating law, forcing Indians in the Transvaal to register with the ‘registrar of Asiatics,’ submit to physical examinations, provide fingerprints, and carry a registration certificate at all times. Rebelling against this was the first act of non-violent political resistance that Mahatma Gandhi engaged in. 

On Gandhi Jayanti, we commemorate Gandhi’s resistance to fingerprinting, with the launch of the Jury Report from the People’s Tribunal on Aadhaar-related Issues which was formally released virtually today on 2nd October, 2020. 

The Jury report comprises the responses and opinions of the four members who adjudicated the People’s Tribunal on Aadhaar-related issues: Dr. Subhashis Banerjee (IIT Delhi), Dr. Tarangini Sriraman (Azim Premji University), Ms. Patricia Mukhim (Shillong Times), and Mr. Ram Sundaram (TerraPay). It also contains a summary of the proceedings and, along with the Aadhaar Tribunal Evidence Book, forms a timely critique of the Aadhaar project ten years since its inception and two years since the Supreme Court significantly curtailed the scope of the Aadhaar project.   

The People’s Tribunal on Aadhaar-related Issues was held on 29 February and 1 March, 2020, in New Delhi. Over the two days of the Tribunal, we witnessed a host of depositions and presentations on critical aspects of the Aadhaar project by presenters speaking about various grassroots campaigns and movements. The discussions covered the Aadhaar project’s impact on welfare, its information security architecture, issues with legislative and judicial oversight, as well as the project’s function creep. A video summary of the Tribunal can be found here.

Dr. Reetika Khera (Development Economist), Dr. Sunita Bandewar (Health rights activist expert on health ethics), and Sr. Adv. Meenakshi Arora (Senior Advocate, Supreme Court) were the panelists speaking at the release of the Jury report. The entire panel discussion can be viewed here.

Dr. Reetika Khera observed that while the Aadhaar project has failed to solve the problem of corruption in welfare, poor people have been forced to pay the price of the failings of the program. She argued that the denial of benefits and exclusion has been deemed acceptable by the government while, under the garb of ‘voluntariness’ , Aadhaar continues to be expanded further. She pointed out how the need for Aadhaar is an admission of the government’s failure, and is based on a misunderstanding – or refusal to acknowledge – how corruption works. A ration dealer can force a person to authenticate their fingerprint for 35kg instead of signing a register, but still give the person only 30kg – mandating fingerprint authentication cannot solve this problem.

According to Dr. Khera, the privacy and data protection concerns which have been expressed with Aadhaar are applicable to other technologies, are now getting noticed. “What took 7 years for Aadhaar,” she said, “happened within 7 days in the case of Aarogya Setu”. Thanks to the rapid furore around the Aarogya Setu app, the government had to backtrack on plans making it mandatory. She concluded her remarks by saying that the next “scene of contest” will be the data protection laws, and there is a need to take these conversations to a wider set of people.

Sr. Adv. Meenakshi Arora began by talking about how the capability of the Aadhaar project to enable “360o surveillance” — through permitting the linking of data silos — was akin to living in a glass box. She also pointed out how, despite the Supreme Court’s judgment prohibiting it, the private sector continues to use and access Aadhaar data.

Drawing on her arguments before the Constitution Bench in the Aadhaar hearings, she referred to a case from the United Kingdom, wherein the European Court of Human Rights struck down the powers of the police to retain data related to the criminal antecedents of a person. While striking this down, the ECHR called this a deep and serious intrusion of privacy. In contrast, the Indian Supreme Court failed to adopt a similar reasoning around Aadhaar-linked databasing. She concluded by pointing out the leeway given to the government for the Aadhaar project, and that the government’s overdrive to link Aadhaar to various activities amounted to losing whatever little was gained by the Supreme Court’s judgment.

Dr. Sunita Bandewar opened her remarks by commenting on how the lack of public consultation on technological projects like Aadhaar doesn’t bode well for a democracy. In the absence of open and transparent conversations around the ‘buts’ and ‘caveats’ of technological projects, she said, they are reduced to mere “technocratic fixes,” which are not robust. She observed how in its response to the COVID-19 pandemic, the central government as well as several state governments launched several contact tracking apps without fully understanding the “social determinants” on the ground.

The private interests pushing for technological solutions can subvert these systems. She referred to NITI Aayog’s whitepaper on Artificial Intelligence (AI), noting that private players with a stake in digital technology and AI played a vital role in drafting the whitepaper, which was apparent in how the whitepaper focussed on the economics of AI, and made only passing mentions to the ethical considerations.

Concluding her remarks, she affirmed that in some cases, data sharing is a valuable exercise. For instance, in the bioethics domain, good datasets of clinical trials are needed to understand the gendered impact of COVID-19. But in contrast, data collection and sharing within the Aadhaar project has not happened in a transparent manner, through proper public engagement, or in the public interest.   

The Jury Report launch and panel discussion concluded with brief remarks from Ms. Usha Ramanathan, who argued that technology policies need to be critically analyzed from the perspective of the vested interests they serve, which create the perception that people are inefficient, corrupt, and replaceable by technology. Dr. Bandewar noted that many of us, despite our personal beliefs, are forced to make trade-offs because of the compulsions of the ID and the Aadhaar system. Usha Ramanathan noted that this individual vulnerability is part of the project design, just as the data-fication of every person was part of the project design. What is needed is a resistance that is not just at the individual level, but at the level of collectives, including through collectives of professionals like doctors and lawyers. This is the sustained resistance that we are hoping to build. 

Rethink Aadhaar