Why Aadhaar interim order is discriminatory for millions of Indian citizens
By excluding the Section 7 services, benefits and subsidies from the ‘relief’, the Bench too has violated the fundamental rights to life and freedom, much like the project the validity of which it’s currently hearing.
Barely 15 days before the deadline to mandatorily link respective Aadhaar numbers with mobile numbers and bank accounts, the Supreme Court has let the anxious non-Aadhaar linked citizens heave a sigh of relief. On March 13, the Court held that such linkage would not be made compulsory till the Constitution Bench reached a final decision on the validity of the Aadhaar project itself.
However, there isn’t much to celebrate, and indeed much to get furious about, since the interim “relief” order keeps out India’s government-dependent, poorer citizens. In a caveat in its March 13 order, the Bench excluded the services, benefits, and subsidies under Section 7 that take their funds from the Consolidated Fund of India. To enjoy any entitlement under this category, the linkage of Aadhaar is still mandated to be done by March 31.
It is quite ironic that the Constitution Bench that has now been hearing multiple petitions challenging the Aadhaar project on the grounds of exclusion for the last two months, is in itself excluding a category of persons that avail their entitlements under the PDS, MNREGA, LPG, scholarships, pensions or other forms of government schemes, from this interim relief. Once again, this brings to mind the multiple levels of exclusion entrenched in the Aadhaar project itself.
Over-reliance on technology
Senior advocate Gopal Subramaniam pleaded to the Supreme Court a few weeks back saying that the fundamental rights of the citizens cannot be subject to a probabilistic technology. The foundation of Aadhaar, i.e. the “aadhaar of the Aadhaar project” is its reliance on biometrics as a medium for unique identification of an individual. But, multiple studies all over the world, the National Institutes of Standards and Technology, and the Identity Project in London School of Economics to name a few, have time and again held that scientifically, identification of an individual based on their fingerprints or iris is not fool-proof and has recorded a percentage of error rates.
It is all the more disturbing to note that this technology has never been tested at a scale as large as 1 billion people and as Usha Ramanathan, a legal researcher analysing the Aadhaar project since its inception, rightly says, the UIDAI is experimenting on the Indian population. It has led to not only exclusions of a vast number of people from getting their entitlements, it has also led to deaths of many individuals from starvation after they were denied their basic rations owing to lack of Aadhaar or authentication via Aadhaar for no fault of their own.
With a technology that is proven to exclude on its own, the project has little basis to continue. Moreover, the studies have also proven that biometrics are increasingly difficult to capture for a particular category of people that are discussed in the next part.
Greater degree of disadvantage
In its March 13 interim order, the Supreme Court permitted the mandatory linking of Aadhaar for various social welfare schemes, as under Section 7 of the Aadhaar Act, any scheme that gets funds from the Consolidated Fund of India, can make Aadhaar mandatory for availing its benefits. All government expenditure is incurred from this fund, and the list for such government schemes for which Aadhaar has been made mandatory extends from rehabilitation of sex workers, to availing scholarships for Scheduled Castes and Scheduled Tribes, and even midday meals for school children. The list is said to have around 139 such schemes.
However, as the studies have shown, people doing manual labour, senior citizens, and even women do not have clear fingerprints as with the heavy work like in construction sites, the fingerprints tend to wear and tear, and with age, they tend to fade. This makes it vulnerable to false negatives when the authentication is done through the Aadhaar process. It, therefore cannot be conclusively proved if these false negatives are “fraudulent, ghost or duplicates”, that the government claims to have weeded out from the multiple welfare schemes, or just the technological failure associated with biometrics.
This greater degree of disadvantage is clear along with the class divide in the country where one, the rural population and the urban poor are prone to having unclear biometrics, the same time, this is the same population that mostly avails many of the welfare benefits and subsidies through the government schemes. The biometric failure associated with the high incidence of using services for which Aadhaar has been made mandatory also paints a picture about the high rate of exclusions in this specific category of people.
Why is Aadhaar still being made mandatory?
The Economic Survey of India 2016-17 pointed out that the percentage of authentication failures was as high as 49 per cent in Jharkhand (Page 194 of the Economic Survey 2016-17). These authentication failures are mathematical, data values of the number of times individuals were unable to authenticate themselves through Aadhaar’s mechanism. This is not a systemic failure or an implementation issue of the project, but a technological one where the technology is untested, and incapable to be utilized at a mass scale.
Recently, it was argued before the Supreme Court that exclusion is tantamount to discrimination and is violative of Article 14 of the Constitution that guarantees equal protection to all from actions by the State. This interim order by the Supreme Court provides selective relief to the urban population that was mostly affected by the linking of Aadhaar with mobiles and banks.
But it fails to acknowledge that actions of the State in making Aadhaar mandatory for availing basic entitlements which are utilized by over 200 million people in the country, equates to these fundamental rights being held hostage to a particular form of identification that is known to have failed even in laboratory conditions.
Nehmat Kaur is a Lawyer at Lawyers Collective.