The Supreme Court of India (SC) has put forth four main points in its interim pronouncements on the Constitutional validity of Aadhaar.

These are:

1) The government must declare to the people that Aadhaar is not compulsory and the government must advertise this fact.

2) Aadhaar enrolment can be linked to the public distribution system (PDS) and cooking gas subsidies.

3) Citizens’ biometric data collected must not be shared with non-government agencies.

4) Refer to a Constitutional Bench for views on whether or not Aadhaar violates privacy.

Despite the SC’s best intentions, these pronouncements leave the situation heavily tilted in favour of the government and the Unique Identification Authority of India (UIDAI) as it exists.

Not compulsory but compulsory

Aadhaar not being compulsory is partly a reiteration of the SC’s earlier stance. The SC had in 2014 stated that the Aadhaar project cannot be made compulsory. What the court has added is the clause directing the government of India to advertise the fact that it is not compulsory.

Despite being such a large-scale project, the UIDAI and the Aadhaar project was conceived and implemented by Manmohan Singh and his intellectual coterie without a discussion in Parliament.

Till date, it is unclear when, where, by which people, under what capacity and to what end was this gigantic plan to collect the fingerprints and iris scans of over a billion Indian citizens thought of and finalised. The UIDAI has also never clarified the exact process by which Nandan Nilekani — who resigned from Infosys in 2009 to join UIDAI and later left UIDAI after joining the Congress in 2014 — was appointed to head the project or who else was considered for the post.

At a time when private software companies are at the forefront of mass spying on behalf of the Western military industrial complex, Aadhaar’s direct technical tie-ups with Central Intelligence Agency-funded companies makes it somewhat suspect.

But Manmohan Singh, Nandan Nilekani and the invisible coterie that ran UIDAI/Aadhaar remained obstinately opaque. There is next to no information in the public domain about how the data is being handled.

The UIDAI’s tendency to keep things under wraps has led to high amounts of mistrust among political parties, activists and general citizenry alike.

This, among other factors, contributed to the SC’s decision to curtail the Manmohan Singh government’s attempts at making Aadhaar enrolment compulsory.

But the Indian government, from 2011 to 2014, kept misinforming the people by making LPG retailers and public sector banks send out text messages to customers stating that enrolment was compulsory and that they must necessarily update their accounts with Aadhaar numbers if they wished to keep availing of their rightful services.

Not once did the government openly inform its citizens that Aadhaar wasn’t compulsory.

Perhaps this experience of mass deception by the government has led the SC to add the clause telling the Centre to roll out advertisements in the mainstream media informing citizens that Aadhaar is not compulsory.

The coming weeks will show if the new government has changed its approach.

But what about the SC allowing the government to link LPG and PDS subsidies with Aadhaar? The situation is akin to the infamous clinical trials that Western pharmaceutical companies did on huge swathes of African population through the 80s and 90s.

The companies, all shining stars of capitalism, in collaboration with Western governments, infected large populations with horrible and often fatal diseases — mostly venereal ones. Then through much-advertised, white corporate philanthropy, they handed out untested medicines as free treatment to the ailing black population — all the while collecting data from them for further fine tuning their chemicals and business models.

Strictly speaking, the African people had all the freedom to choose not to take those medicines and no one forced them. But in the absence of even basic food and sanitation, let alone proper medical care, they chose to be guinea pigs and take a shot at living their wretched lives than rotting away with horrible infections.

Similar to that, allowing the government to link PDS and LPG subsidies to Aadhaar leaves no real choice to middle-class and working-class Indians who need these for everyday subsistence. These people have no choice but to trade their biometric data for a shot at living another day. Thus, staying out of UIDAI becomes unaffordable and inconvenient for them.

By linking Aaadhar to the PDS, the Modi government can, thus, do openly what the Singh government had tried to do behind closed doors.

Compromised by design

The SC warns the government that citizen’s biometric data must not be handed over to anyone — presumably meaning any non-government agency, or perhaps anyone outside the UIDAI.

Technically, this means nothing since the Aadhaar project was from the very first day a project led and implemented by private parties. Ernst and Young was put in charge of its stewardship and they brought in mid-sized IT companies as service providers.

These mid-sized private firms in turn sub-contracted the job to innumerable private parties that ranged from small software development and customisation firms to resellers to even cyber cafe owners and DTP and graphic design shops. There was no audit, no capability test, no background check or any other form of validation. The agents were given small localities of cities, towns and villages — at times as little as a cluster of buildings or slums. They set out with print scanners, laptops and cyclostyle forms and collected biometric data from anyone willing to walk up and give it. All this data was entered into offshore databases using simple online forms by data entry operators.

These agents were paid on the basis of the volume of data they pulled in. Nobody quite knew where the data was going or for what it would be used. But since the salary was proportional to the number of people being enrolled, many went about spreading word-of-mouth propaganda about how the entire programme was compulsory.

In fact, no one quite knows where the biometric data currently lies and in what state of security and privacy. Are the servers in India? If not, then, why? Can the data be replicated? Who has access to the data and why?

We don’t know and the UIDAI doesn’t bother telling.

In fact, the UIDAI continues to leverage the lack of information and technical know-how among the general populace of this country.

So, while the SC means well when it says that Aadhaar data should not be shared, the fact remains that Aadhaar data may already be compromised and widely shared.

Limits of the judiciary

The SC has sensed danger in mass invasion of citizens’ privacy. Despite Attorney General Mukul Rohatgi’s stating that the right to privacy is not a fundamental right, the SC has refused to accept the argument point blank.

But unlike Europe, privacy as a citizen’s right or as a serious political idea doesn’t find currency in India and the concept is limited to the well-educated few. And, even among them, it is mostly about privacy only in the digital arena and for the connected few.

On the one hand, Indian society is so overwhelmingly poor and the rural economies are so badly damaged that people have no option but to give up all privacy in exchange for a place in the overcrowded cities of India. On the other, privacy and sovereignty of an individual over herself is looked down upon in the name of culture.

So unlike Europe, there just isn’t enough material basis in India on which the concept of privacy as a right, can stand. And it will take movements that go well beyond the domain of computers and into everything like the right to choose our dietary habits, the right to choose our love, the right to dress the way we want, the right to pursue beliefs (or lack thereof) and so on and so forth, to build public opinion and thereafter political will in favour of privacy.

Beyond debate

The Aadhaar lobby is quite clearly a powerful, even if a silent, one. The attempt to tag Indians en masse has crossed the Congress-BJP divide very effectively and there is no difference between the zeal with which Nandan Nilekani and Manmohan Singh pursued the matter and how Mukul Rohatgi and Narendra Modi are pursuing it.

Both have shown themselves to be impervious to debate and unresponsive to criticism.

The private parties and unelected powers that run the UIDAI are even more immune in this regard since they are beyond the reach of political opinion and democratic checks and balances.

So, by all means, Aadhaar looks beyond the reach of everyday political debate and news bites. And unless privacy activists come together and engage with newer ideas and forms of agitation that will find social, cultural and political resonance in India, the battle looks lost.