The Supreme Court of India’s judgement on privacy is an opportunity to end the wrongs of an UPA era programme that allowed private interests to digitally colonise and loot India. Prime Minister Narendra Modi was amongst the earliest critics of the Aadhaar, recognising that it was a mere political gimmick. He had highlighted his concerns about national security over Adhaar. He must not be misled by advisors with hidden commercial interests. He must ensure good governance and minimum government. 

There are four ways by which Aadhaar may cost us our national interest. One, Aadhaar could allow terrorists, criminals to create millions of fake identities, duplicates and use them to park black money, bribes, finance terror and siphon subsidies and funds from the Consolidated Fund of India. Going by minister Ravi Shanker Prasad’s statement in Parliament that 34,000 enrolment officials were suspended for irregularities, 50-90% of the Aadhaar database may have “ghosts”. As Aadhaar is not certified by any government official to be a proof of identity, address, resident status or even existence, the database has not been verified or audited by anyone. Hence its use for governance is problematic. Two, Aadhaar destroys the ability to distinguish a citizen from an illegal immigrant. All documents like passports, drivers’ licences, etc., can be obtained by using Aadhaar, a card that can be illegally obtained with fake documents. Three, innocent persons can be framed of crimes, by using their stored biometric and Aadhaar, that have no deniability. Four, Aadhaar could potentially change voting lists, voter preferences and provide such controls through outsourcing and privatisation of enrolment and authentication to “interests” within or outside the country. 

With people’s interest in mind, PM Modi must ask officials to examine five reasons why the continued use of Aadhaar is problematic. 

One, all the rights, benefits and entitlements of everyone are subject to their Aadhaar working and not being disabled by intention or error. Already, a number of those who have an Aadhaar card have been denied their rights, benefits or entitlements for these reasons. To date more than 85 lakh Aadhaar numbers have been disabled by the UIDAI without assigning reasons. Two, those without an Aadhaar are being subjected to denial of their rights, entitlements and benefits. For example the I-T department does not process the returns or refunds of non-Aadhaar taxpayers in the same way as those of persons with an Aadhaar. Three, Aadhaar is a single point of failure to declare your “civil death”. This means anyone can be removed from all government registers by deactivating their Aadhaar. Four, even when not needed, people are being asked for Aadhaar and even their authentication may get sabotaged to deny them dignity and equality, besides their entitlements. Five, Aadhaar is now the single point for fraudsters to seek to hack identity, commit crime and rob them of their property, dignity, liberty, equality and access to justice. As the use of the Aadhaar number destroys identification and consent from business processes with genuine and foolproof authentication, bank accounts opened using their Aadhaar, property transactions, purchases, registration of contracts in their identity will no longer be in their control or with their knowledge and traceability.

On 23 September 2013 the Supreme Court ordered that “no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily”. On 24 March 2014, the apex court had reiterated that “no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled.” In its order of 11 August 2015, the SC ordered that Aadhaar may not be used for any purpose other than the PDS Scheme, for the distribution of food grains, and cooking fuel, such as kerosene and LPG. This was extended to allow its use for the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO) in its orders of 15 October 2016. In its orders of 15 October 2015, the Supreme Court emphasised that “We will…make it clear that the Aadhaar Card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.” On 14 September 2016 in the matter of WP 686 of 2016 the apex court stayed the operation and implementation of that or Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme to the extent they have made submission of Aadhaar mandatory. The then Attorney General, in 2015, had argued that the case against Aadhaar is about the citizen’s right to privacy. He had argued that Indians do not have a fundamental right to privacy. He also held that only a nine-member bench could overrule previous judgements that decided there was no fundamental right to privacy. On 24 August 2017, in a historic decision, a nine-member constitutional bench of the Supreme Court ordered that “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” 

PM Modi desires good governance and the respect for the people of the nation. Hence any coercion by government agencies to link Aadhaar to PAN numbers, mobile phones, bank accounts is contrary to this stand, besides being in contempt of the rule of law. 

The opportunity offered by the Supreme Court is a godsend to Prime Minister Modi. Given the clarity and consistency of the mind of the court, PM Modi should set up a judicial inquiry into the actual working of Aadhar. He should set up a committee of individuals with expertise and without hidden or overt vested interests in the program to protect “we the people”. 

Prof @AnupamSaraph is an internationally renowned expert on governance of complex systems.