If there were an emotional day, it will be tomorrow. For the many lawyers, petitioners, academics, activists, technologists, journalists, and for citizens who either surrendered or fought against the coercion imposed by “Aadhaar”, tomorrow will mark a slight closure to the battle they have ensued inside the courtroom over the last seven years. This case which was filed in 2012 by a retired justice of the Karnataka High Court, Justice KS Puttaswamy, became a solemn effort over the years that will definitely be immortalised for ringing in the technology era in the courtrooms.
In 2014, when the uprising against Aadhaar was limited to the circuits that worked on the intersection of rights and technology, or the social welfare academics who researched on MNREGA, PDS, and were the first ones to record the mis-implementation of the Aadhaar project, the proclaimed novelty of this biometric database made the CBI ask if it could be used to check fingerprint of someone from a crime scene. Supreme Court in order dated March 24, 2014 not only prevented UIDAI from sharing the information without consent with any other agency, but also stated that Aadhaar could not be made mandatory. However, to no avail. Aadhaar was still being made mandatory. Ground level campaigns were spreading with conferences and talks in colleges, universities, round table discussions; while on the legislative side, drafts of a privacy law were leaked in 2014.
2015 saw Mukul Rohtagi, the then Attorney General say, we have no right to privacy, and that delayed a decision on Aadhaar by seeking a constitutional bench reference for a right to privacy. A little less than two years later, the Constitution Bench decided that right to privacy is inherent in the human dignity, and exists, as the human does. A profound moment that has since then led to it being used as a judgment to further other rights, most recently, invalidating criminalisation of what was considered “unnatural” sex under Section 377 of IPC.
The two years in the interim were the time when the mandatory nature of Aadhaar spiked up and the fait accompli argument emerged rather strongly because the questions of why is Aadhaar being made mandatory was replied with a standard answer of Aadhar has to wait until right to privacy is decided. Two years was time enough for infiltration of this “Aadhaar card” to utilise every service, public or private one could imagine, from death certificate to provision of benefits under the Bhopal Gas Tragedy scheme, to rehabilitation of sex workers, and medication for HIV positive persons as well. The spike in need for Aadhaar definitely led to a spike in ideas to forge the same.
There is a sense of solidarity as we look back to the civil society organisations and journalists who were slapped with FIRs, for disclosing leaks in the Aadhaar system, or for standing their ground. They are not less than whistleblowers, however could be tagged as criminals and be unemployed at this stage. To the journalists and academics who were on the field in remote villages collecting data on the number of failed authentication, doing door to door surveys, checking point of sale machines, making videos, and filing RTIs to refute that even though Aadhaar enrolment is 99%, its authentication capability and exclusion percentage is increasing as well.
The petitioners are an interesting array of parties, two former judges, several academics, technologists, a few organisations that work for social justice, two retired army personnel who claim that Aadhaar is a massive national security threat, and individuals who have been not given their due services and benefits due to non possession of Aadhaar. A blind faith in technology may be the reason why the implementation of Aadhaar was imposed as an experiment on a population of one billion, but technologists became Twitter legends in this campaign by disclosing flaws, consequences, and bringing in the transparency of this system to a public domain for everyone to notice. The cumulative effort finally forced a legislative change where a public consultation for a data protection law for the country was held and a draft has now been circulated in the form of the Justice Srikrishna Committee Report.
To the lawyers who simplified the technology but kept its impact in place, who introduced the concept of state surveillance to a whole generation, who attempted to bring to notice of the supreme court that digital privacy is privacy, that biometrics with the government and state are different than those that people may choose to give to private parties, that privacy is not about nationalism and patriotism, that privacy is not a bargain or a barter available for giving me my MNREGA wages, or pension, or death certificate.
To everyone who continues to fight against this, in person, or in spirit, as we wait with baited breath and our fingers crossed, hoping for the best for the judgment tomorrow, THANK YOU for the inspiration, for the solidarity, for a fight well fought.