Aadhaar – Identity without Consent, Control or Security

The Central Government notified certain sections of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘the Act’) last month. As of now, only the sections setting out the establishment, powers and functions of the Unique Identification Authority of India (UIDAI) have been brought into force.

Passed earlier this year, the Act is aimed at more efficient delivery of government subsidies and services by eliminating ghost identities and reducing corruption. It does so by obtaining and storing, in a centralized database, biometric and demographic information of all Indians who have been residing in India for more than one hundred and eighty-two days. This database, called the Central Identities Data Repository (CIDR), not only stores information parted with at the time of enrolment, but also keeps a record of every identification request sent to it. Thus, every time a resident is required to authenticate her identity by any service provider, the CIDR would maintain a record of it.  Significantly, (and contrary to three previous Supreme Court orders), there is little room for doubt that the scheme has been envisaged as being mandatory to avail the benefits attached to it.

If the lack of an overarching privacy law wasn’t enough reason to worry, the government’s submission before the Supreme Court that there is no fundamental right to privacy has raised legitimate concerns about the project and its implementation. A lot has been written about the problems with the Act and the larger scheme itself. But two aspects of the privacy debate under Aadhaar deserve urgent attention. First, as a mandatory scheme with no option to opt-out at a later stage, Aadhaar raises important issues of consent and one’s right to control the use of their personal information. This has famously been articulated as ‘informational self-determination’ in several European jurisdictions. The second concern is procedural and pertains to the method of collection and storage of sensitive personal information.

No Power to Consent or Opt-out

Biometric information such as fingerprints and iris scans form a core part of one’s bodily integrity. A requirement to part with such information as a condition precedent to availing essential services undermines basic constitutional values. While the enrolment form has a checkbox to verify consent, this is merely illusory, as failure to consent would amount to automatic exclusion from a host of benefits and services. Despite the fact that the Act mandates ‘enrolling agencies’ (discussed later) to explain the purpose of collecting demographic and biometric information at the time of enrolment, there is no legal obligation to inform residents of the extent of information being held about them. Aggregation of information within the CIDR as a result of a series of authentication requests over a long duration of time comes perilously close to creating a complete personality profile of every resident. This makes the state privy to a wide range of activities from buying an LPG cylinder to enrolling in a school, thereby drastically altering the individual-state power dynamic.

The Act further dilutes individual agency by creating statutory exceptions to how personal information can be used. Section thirty-three of the Act allows disclosure of personal information if a court (a District Judge or above) deems fit or if it is in the interest of “national security”. Both these caveats are problematic. To illustrate the first, in 2014, the CBI approached the Bombay High Court asking the UIDAI to run a fingerprint match on its database in order to enable it to identify culprits in a criminal investigation. Before the Court, the UIDAI had argued against sharing its data owing to privacy concerns. However, the Court felt differently. The Bombay High Court directed the Central Forensic and Scientific Laboratory to appoint an expert to determine if the Aadhaar database was technologically capable of matching fingerprints. This order has been stayed by the Supreme Court but the case is yet to be disposed off. The information shared with UIDAI was never envisaged to be used in criminal investigations. However, the Act explicitly allows information to be shared if a court allows it. As per UIDAI’s own statement, the system has a False Positive Identification Rate of 0.057 per cent. When applied to all residents within the country, a fingerprint search would have the effect of putting lakhs of residents under scrutiny.

Secondly, not only has the phrase “national security” not been defined in the Act (or in any other legal text for that matter), it would be the Executive’s sole prerogative to determine whether a situation qualifies for the exception. In both these situations, the individual whose information is actually at stake need not be consulted before her information is disclosed. These two exceptions are couched so broadly, that it is almost farcical to say that personal information will be used only for the authentication of one’s identity.

The Act contains broad exceptions to how personal information can be used and does not provide for any mechanism to opt-out or have one’s data deleted from the CIDR. In doing this, it diminishes one’s agency to consent, revoke consent and control how this information can be used. A society where individuals are unable to anticipate and predict the amount of information held about them and how it may be used is likely to have a chilling impact on democratic participation.

Dubious Collection and Storage of Personal Information

The issue of consent aside, organizational mechanisms in place to collect and store personal information of over a billion residents also give rise to multiple concerns. Prior to the passing of the Act, the UIDAI had outsourced the process for enrolment to various private entities which possessed the requisite know-how. Sensitive personal information such as biometrics has thus been captured, stored and retained by private companies using their own technology and without any oversight by government officials. In 2014, news reports of ‘Lord Hanuman’ having an Aadhaar card surfaced. Vijay Madan, the then Director General of the UIDAI later explained in a statement that this was ‘not a security issue’ but an instance of ‘malpractice’. The agency was then reportedly removed from the UIDAI panel. The Act has not only given legislative sanction to the practice of private companies collecting personal information, but also does not present the affected individual with any recourse in case of a breach.

Once the data is transferred to the UIDAI, it is maintained by it in the form of the CIDR. The perils of centralized storage of personal information have long been acknowledged. Any unauthorized security breach could jeopardize the information of all residents at once. This is vastly different from a smart-card system or Apple’s Touch ID, which stores biometric information locally on the device. Under European data protection jurisprudence, storage is an important element to ascertain whether the means used are proportionate to the aim sought to be achieved by the law. If the purpose of the system is only to authenticate identity in order to plug leakages in the distribution system, the need for centralized storage must be questioned.

Aadhaar has the potential to irreversibly alter the relationship between the government and people. As the world’s second most populous country, the desire to make the distribution system more efficient is an important goal to strive for. But in this case, the trade-off between privacy and efficiency is not only undesirable but also unnecessary. Finally, the manner in which the Act was passed and the government’s submissions before the Supreme Court display a lack of good faith that only add to the already long list of concerns associated with the project.

 

CCG analyses on the Criminal Defamation ruling

Written by Nakul Nayak

Since the Supreme Court’s May 13th ruling on the constitutionality of criminal defamation laws in India, CCG has come out with two op-eds on the shortcomings of the judgment.

  1. In today’s Indian Express, Chinmayi Arun (Executive Director of CCG) raises important questions surrounding the implications of the judgment. Specifically, Chinmayi points out the glaring dissonance in the Central Government arguing for a right to reputation in the domain of defamation and simultaneously arguing against the fundamental right to privacy in the Aadhar hearings. Chinmayi also goes on to criticise the Supreme Court’s inadequate recognition of the powerful parties that use criminal defamation laws and their disparate impact on ordinary citizens. Her op-ed can be found here.
  2. A few days back, I wrote an opinion piece in Livemint arguing that criminal defamation laws can and have been used by state officials to obfuscate public inquiry. This affects the truth-seeking endeavour of free speech, apart from the fact that India necessitates a “public good” value to truthful statements to qualify as a defence. I also argue that section 199 of the CrPC, which enlists the procedure to be followed in any criminal defamation prosecution, envisages an additional avenue for silencing criticism of official conduct by allowing a public prosecutor to file a complaint even when the particular state servant may not have felt aggrieved. My op-ed can be found here.
  3. Post Script [May 27, 2016]: Anna Liz Thomas, a student at NALSAR University and an intern with CCG, has written an interesting piece analysing the arguments of the petitioners that were never countered or even addressed by the Supreme Court. Anna proceeds with look at the effect of these arguments and this, apart from making for a compelling read, makes one wonder whether the rebuttal of these arguments would have made the judgment a more informed and nuanced one. Anna’s post can be found here.

The Dirty Picture Project: Dil Dhadakne Do- A welcome foray into feminism.

By Bhargavi Vadeyar, as part of the Dirty Picture Project

Dil Dhadakne Do is the story of the Mehras, a dysfunctional, Delhi high society Punjabi family, the kind where the women talk in overly sugary tones and the men run businesses and play golf. The line-up includes the narcissistic father, Kamal (Anil Kapoor); the socialite/housewife mother, Neelam (Shefali Shah); the prodigal son and heir, Kabir (Ranveer Singh); and the quietly extraordinary daughter, Ayesha (Priyanka Chopra).

The cast is rounded out by Ayesha’s sexist and controlling husband, Manav (Rahul Bose); Farah (Anushka Sharma), Kabir’s love interest and a dancer on the ship, and Sunny (Farhan Akhtar), Ayesha’s one-time best friend and love interest. Last, but certainly not least, Aamir Khan voices the Mehras’ dog, Pluto, who narrates the film and comments on the hypocrisy of Indian families.

The movie’s premise is the Mediterranean cruise to celebrate the 30th wedding anniversary of Kamal and Neelam Mehra. Shenanigans predictably follow as many of the Mehras’ family and friends are forced together for a two-week period.

Bechdel Testing

The movie just about passes the Bechdel Test with a fleeting conversation between Ayesha and her cousins Divya and Putlu about what Divya wants to do with her life, now that she has graduated from college.

This is one of those cases, however, where the Bechdel Test doesn’t paint a true picture. The movie is filled to bursting with subversive one-liners and feminist characters that are completely out of the ordinary for a mainstream Bollywood film. It would be very difficult to talk about every insight the movie provided into the gender roles of the Indian upper class family, so I’ve chosen to focus only on the key elements.

Ayesha, the Superwoman

Ayesha is far and away the most interesting of the Mehras. For a Bollywood heroine, her clothing is not overly sexualised, and she is a well-developed female character. Ayesha is a successful businesswoman who sold her jewellery to start a travel company that landed her in the Forbes top 10 entrepreneurs list (just roll with it, this is Bollywood). However, she has to endure a controlling husband who “allows” her to run her business, along with barbs from her mother-in-law about talking business at the dinner table and never being at home.

She is a self-made businesswoman, but everyone around her just wants her to have a baby, including her husband and her parents. When told about her appearance in Forbes, her father only replies that next year his son’s name will be featured, and later announces in front of the entire gathering that his only wish is for her to give him a grandson (but not a granddaughter, of course). The gender bias is clear: her father, also a self-made businessman, shouts his achievements from the rooftops but is unwilling to acknowledge his daughter’s.

Ayesha, though, is secretly taking the monthly birth control pill. She is deeply unhappy in her marriage and already contemplating a divorce when the return of Sunny finally galvanises her into action. It becomes clear that Sunny and Ayesha were in love before her parents separated them.

The only flaw in the otherwise excellently written Ayesha is that she is unwilling to ruffle her parents’ feathers, often at the cost of her own happiness. She also seems to need Sunny’s appreciation of her achievements in order to be able to value herself enough to finally ask Manav for a divorce. This is slightly irking, but I’ll let it slide because Ayesha’s overall story ark is the best thing about this movie.

Sunny, the “Journalist-Activist Type”

Sunny is possibly the first openly feminist male character in Bollywood, and the film somewhat puts him on a pedestal for it. One of the best moments of the film is a conversation between Sunny and Manav, where Manav lets it slip that he “allows” Ayesha to run her business. Sunny immediately picks up on this and tells him that by allowing her to run her business, he is assuming a position of authority and control, and that this is not equality. This proves his point, he says, that women have not yet achieved equality. The movie portrays Sunny as admirable and intelligent for his feminist views, and Manav as controlling and unwittingly sexist.

Talaq, Talaq, Talaq

Once Ayesha admits she wants a divorce, both families sit together in order to work out what has gone wrong. The movie really highlights that everyone is against Ayesha here; she sits alone, facing her parents, Manav and her mother-in-law. They all treat Ayesha’s divorce as a something hurtful to them, echoed by Neelam asking Ayesha why she is doing this to them.

Both Neelam and Ayesha’s mother-in-law can’t seem to understand that she wants a divorce because she doesn’t love her husband. They both believe that as long a husband can provide a good standard of living and is not violent, there should be no problem, something that the film is quick to make fun of. This is especially ridiculous because, again, nobody seems to notice or care that Ayesha is financially independent.

Here the film also draws a stark contrast between the generations. Ayesha, who is financially independent, can divorce her husband. Neelam, on the other hand, has been forced to pretend that she is unaware of Kamal’s affairs for years because she has nowhere else to go.

Of Sons and Daughters

The movie also highlights the differences between the treatment meted out to sons and daughters. Once Ayesha is married, her birth family effectively disowns her to the point where her name is not mentioned on the cruise invitation cards, even though she planned the whole trip. Kamal also repeatedly insists that her home is now with her husband’s family.

Kabir, on the other hand, is being pressurised into succeeding his father as CEO of their flailing company, Ayka. This is despite the fact that it is clear he has very little interest or aptitude for business, while Ayesha runs her own business successfully. After Kabir refuses to run the company, Neelam asks what they will do with the company if he doesn’t run it. They don’t even consider the possibility of Ayesha being her father’s heir until Kabir points it out to them.

The Pilot and the Dancer

Kabir is the youngest member of the Mehra family. Overall, his character is also rather feminist, as he is unwavering in his support of his sister and is one of the few who acknowledge her success. Kabir falls in love with Farah Ali, who appears to be a very strong character until you scratch the surface. She is a dancer on the ship who ran away from home because all her parents wanted for her was to become someone’s housewife. Her story and her advice inspire Kabir to follow his heart and refuse to give in to his parents’ pressurising about his career.

Farah’s character is the where the film trips up slightly; it isn’t very well developed, which definitely puts her on the Manic Pixie Dream Girl scale. A Manic Pixie Dream Girl is a character that enters the (always male) hero’s life to change it for the better without ever changing herself, a role that Farah fulfils here. However, every character who is not a Mehra is similarly underdeveloped, so this film doesn’t seem to make a gender-based distinction on that front.

In Conclusion

Dil Dhadakne Do’s feminism is probably down to the fact that the two screenplay writers are both female: Zoya Akhtar and Reema Kagti. The film is certainly a step forward for Bollywood, and I can personally assure you that the film’s social commentary even improves on repeat viewings, a rare feat for any Bollywood movie. Dil Dhadkane Do is definitely worth a watch, for its rare nod to feminism and for the catchy songs that I’m sure I will be humming for several days.

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For more information on the Dirty Picture Project, contact Aarti at aarti.bhavana@nludelhi.ac.in

Aadhaar (the Larger Bench): Day I

Written By Joshita Pai

The 5 judge bench this afternoon commenced with the Aadhaar hearing after reference from the Supreme Court on the issues of existence of privacy as a constitutional right and on clarifications of the interim order issued on 11th of August. The bench seemed determined to focus on the clarification issue and the as the beginning of the proceedings, the CJI stated with particular regard to the privacy issue that he has not concluded what bench can be constituted to determine the question.

Mr. Shyam Divan, Senior Advocate insisted on delivering preliminary findings concerning privacy and in the latter part of the hearing, he introduced the subject again and threw considerable light on the previous orders issued by the Court in the matter. The Attorney General’s arguments primarily were based on firstly, the authentic nature of Aadhaar cards; secondly, on the non-viability of procurement of other identity cards such as PAN cards and driving license by the poorest of the poor, thirdly, that 92 crores of the population has already enrolled for Aadhar; fourthly, that the Aadhaar project is centred around a social welfare scheme, finally, on the premise that the card does not contain the biometric information and only displays the unique identification number.

Referring to the Big Brother concerns, the AG asserted that communication on WhatsApp can be snooped into by Facebook. Whatsapp however, in the light of the recent encryption debacle had assured that the encryption keys loaded at the time of sending a message by a particular user can be read in readable format only by the targeted receiver. Certainly, doubts galore the credibility of such end to end encryption. Moreover, commercial use of data is a tangential concept to surveillance and maintenance of database by the Government.

Delving upon the 92 crores Aadhar card holders, the bench asked the AG if he ruled out the possibility that these many people volunteered for aadhar since that would be their only means to access the proposed schemes. The Court, referring to the interim orders sought clarification w.r.t. the voluntary nature of Aadhaar post those orders. The advocates for the string of defendants reinstated that for all schemes outside PDS and LPG, it has been voluntary and insisted that they wish to resume schemes since they are attached to Aadhar.

Arguing for the petitioners, Mr. Shyam Divan reintroduced privacy concerns and stressed upon how the issue can not be looked into in isolation since the basis for Aadhar is built on collection of biometric information and fingerprinting which has been conducted in the absence of any statutory backing or in the least, issuance of a circular. He also mentioned that the enrollment form does not contain the requirement of supplying biometric data. He read out the interim order issued by the Court on August 11th and stated that there was no notice served to the petitioners from the Centre stating that its challenging the Court order.

The bench intermittently expressed concerns about how the order would be carried out since post clarifications by the constitutional bench of the 11th August order, the same would be referred back to the 3 judge bench. The Court will begin by looking into the interim order issued by the court last week in the next hearing, which is scheduled for 2 pm tomorrow.

Aadhar: the Past and the Future

By Joshita Pai & Sarvjeet Singh

The Unique Identification Authority of India (UIDAI) was set up under the chairmanship of Mr. Nandan Nilekani in 2009 by an executive notification to generate and assign unique identification numbers to residents.

After persistent protests asserting that a project, which requires collection of information such as biometric data, cannot be carried out in the absence of a legal framework, the National Identification Authority of India Bill, 2010 was introduced in the Rajya Sabha. The Parliamentary Standing Committee on Finance  subsequently found the bill unsuitable citing concerns such as national security and potential privacy violations, duplication of the National Population Register’s (NPR) activities and asked the Government to reconsider the UID scheme. A fundamental issue raised by the Committee was the scope of Aadhar, which covers residents and not citizens.

Towards Aadhaar-enabled delivery of services and applications, UIDAI provides online authentication using the resident’s demographic and biometric information. Services such as e-ration card, linkage of banking services, The Ministry of Petroleum and Natural Gas brought in an amendment in 2011 to its Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 making the Unique Identification Number (UID) under the Aadhaar project compulsory for availing LPG refills.

The mandatory nature attached to the Aadhaar project however, invited a string of petitions linked to main petition filed by Justice Puttaswamy addressing the lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhar. In November 2013 during one of the hearings of the matter, the Supreme Court concluded that the matter holds importance to all the states and union territories to be impleaded as parties to the case and passed an order to this effect.

The Attorney General defended the project stating that UIDAI requires only basic identity data such as name, age, gender, address and relationship details in case of minors, for issue of unique identity number, commonly known as Know Your Resident. The maintained response from the ministry has been that the UID scheme is envisaged as a means to enhance the delivery of welfare benefits and services and is not carved out for fulfilling surveillance purposes. The UID has clarified that only the person to whom the data is related will be entitled to seek and access the information contained in the Aadhaar database, in pursuant of section 8(j) of the RTI.

In March 2014, the Supreme Court restrained the UIDAI from transferring biometric information to any other agency without the written consent of the aadhaar card holder. The CBI, while investigating the rape of a girl in a school toilet in Goa requested the UIDAI to handover its biometric database. The Judicial Magistrate First Class of Goa issued an order directing the UIDAI to comply with the CBI’s requests. It was protested by the UIDAI in the Bombay High Court which dismissed the petition and the matter was appealed before the Supreme Court. CBI’s request for handing over the data was declined and the UIDAI in its petition refused to share the data citing privacy concerns. The UID petition has also been tagged with the other petitions.

The Supreme Court has prior to the 11th August, 2015 interim order, on three occasions – on September 23rd 2013, March 24th 2014 and March 16th 2015 declared that services cannot be made incumbent on the Aadhar number.

Reiterating the mandate of making Aadhaar and optional process, the Supreme Court, on 11th August, 2015 declared that Aadhaar card will be mandatory only for availing LPG and PDS services. The UID website now carries at the bottom of its homepage a statement to the end that enrollment for Aadhaar is voluntary. The order has not been implemented in practice since schemes such as digital locker and the online health portal schemes are still linked to Aadhaar. The principal opposition to Aadhaar in the Supreme Court has been the question of privacy and the same was argued before the Court.

Defending Aadhaar, the Attorney General placing reliance on M.P. Sharma v. Satish Chandra (decided by a 8 judge bench in 1954) and Kharak Singh v. State of U.P. (decided by a 6 judge bench in 1962), stated that the right to privacy is not guaranteed under the Constitution and its position is doubtful. He further argued that the subsequent decisions in Gobind v. State, Rajagopal v. T.N. and PUCL v. UOI were rendered by smaller benches. The August 11th order therein referred the question of determining the existence of privacy to a larger constitutional bench.

The interim orders were repeatedly sought to be quashed by the Centre in order to facilitate the promised social welfare schemes. Last week, the Supreme Court rejected the plea to stay the order and decided to refer any clarifications or modifications to the Constitutional Bench. The request was processed immediately and a five judge bench was accordingly set up and will be hearing the petition on the 14th of October, 2015. According to these reports, six different state governments, Indian Banks’ Association, UIDAI, SEBI, RBI, and TRAI have joined the case defending the Centre’s stance and asking the court to allow usage of Aadhar identity proof for all welfare schemes.

Going forward the various issues that need to be decided by the Court are in respect to the issue of privacy are:

  1. Whether there is any “right to privacy” guaranteed under the Indian Constitution?
  2. If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy.

India follows the principle of “stare decisis”. The principle of stare decisis is of utmost importance by virtue of the fact that the law declared by the Supreme Court shall be binding on all courts within India (article 141). Moreover, it is an accepted principle that except in certain situations, in cases of conflict between various judgments the opinion expressed by the larger bench prevails. Therefore, ideally to overrule the judgment by an eight-judge bench in MP Sharma, a nine-judge bench should be constituted.

The constitutional bench that has been formed is a five-judge bench comprising of Chief Justice of India H.L Dattu, and Justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy. Starting this afternoon, it will be tasked with determining the fate of Aadhaar and deciding on Centre’s plea of seeking a modification of the Court’s order restricting the usage of Aadhar and to decide upon the existence of privacy as a constitutional right.

Certain reports have stated that the constitutional bench will only hear arguments on the validity of Aadhar and take up Governments request for interim relief. For deciding whether there is a fundamental right to privacy a larger bench will be formed later. This seems problematic on a number of levels:

  1. If the court allows the Centre to make Aadhar mandatory for other welfare schemes, it will be doing so without having any clarity on the status of right to privacy in India.
  2. In case the Court provides the relief to the Government and allows Aadhar to be used for other schemes, without looking at the scheme privacy concerns, how will it later reconcile it when the larger bench decides the rights contours.
  3. If the Court only takes up the issues relating to privacy violation by Aadhar, it will be doing so without deciding whether there is a right to privacy and it contours?

A timeline of the case till August 2015 is available here and a list of the various petitions tagged together is available here.

Supreme Court refers clarifications on Aadhar to the larger bench

Written By Joshita Pai

The Supreme Court has rejected the plea of the Union Government and several other public organisations to stay the interim order passed on the 11th of August, 2015 in the Aadhar matter. The Court has declined the request for making Aadhar mandatory except for availing LPG and PDS services. It has referred all applications seeking clarification or revocation of the order to a larger bench of the Supreme Court, which would also be presiding on the issue of privacy.

The larger bench is yet to be constituted, however the lawyer for the petitioner has asked the Chief Justice to constitute the bench at the earliest and the Chief Justice has asked the petitioners to present their case in court tomorrow.

Many schemes such as digilocker which will serve as an e-locker for official documents and the Online Registration System, an e-health-centric initiative by Deity require one to enter their Aadhar number for access; there has been a blatant disregard of the limited purpose prescribed by the order. The Court, earlier in the month asked the Centre to strictly comply with the order and reminded it that the mandatory nature of aadhar is applicable only to LPG and PDS schemes.

The reservation of a clarification and a stay on the application of aadhar is certainly going to pace up the setting up of a constitutional bench. The execution and continuation of several projects and social schemes now hinge on the decision of the Court. The Constitutional bench is now entrusted with deciding on the scope and utility of Aadhar, over and above determining the existence of privacy as a fundamental right.

SC: Aadhar not mandatory & Constitution bench to consider the right to privacy question

By Pushan Dwivedi and Joshita Pai

Highlights from the Court’s ruling

The Supreme Court bench constituting J. Chelameswar, S.A. Bobde and C. Nagappan has decided to refer the challenges to the Aadhar program to a constitution bench, especially to determine the existence of a right to privacy as a fundamental right.

The Apex Court passed an interim order directing the government to publish in electronic and print media that the enrollment is not mandatory. It also made it very clear that the production of the Aadhar card cannot be made compulsory for essential services. With respect to the sharing of personal information, the Court has ordered a strict non-disclosure of information unless the information is sought through a court order for the purpose of a criminal investigation. The purpose of Aadhar has been limited to the Public Distribution System including distribution of food grains and kerosene only.

Arguments in court

Advocate Shyam Divan, appearing for the petitioners, asked for interim relief and for directions to suspend further Aadhar enrollments, prohibit commercial use of Aadhar database, and to direct the government to telecast advertisements to the effect the Aadhar is not mandatory. He based his arguments on the notable absence of any government officer supervising the process and the dearth of statutory framework monitoring the program.

The Attorney General rebutting the plea of suspension of further enrollments insisted that the balance of probabilities have shifted in favour of the government since ninety one percent of the adult population has already been enrolled. He dismissed the privacy concerns relating to the use of database stating that the petitioners stating privacy qualms do not represent the majority of the population. He also argued that the purpose of issuing Aadhar cards is to provide social benefits to people and the program is not built with the aim of carrying surveillance. On the question of making it clear that Aadhar is not mandatory, the AG affirmed that the government is willing to advertise to the public that the enrollment is not mandatory.

There is no data available verifying the number of enrolled citizens. Soli Sorabjee remarked that “there are eight million people who have enrolled that are not to be found in the Aadhar database” His line of arguments primarily focused on the absence of any statutory system monitoring it.

A copy of the interim order can be found here: Aadhar Interim Order

(Pushan Dwivedi and Joshita Pai are Research Fellows at the Centre)