[***The scheme as it stood, before the verdict, posed four main threats: 1. Unauthorised access to (personal) data - biometric and otherwise, stored by private entities and malafide use, including identity theft. 2. Authorised access to data stored by private entities and malafide use. 3. Access to stored data by the state itself and consequent threat of the surveillance state. 4. Causing sudden "civil death" by the state, by switching off the number.
An additional one, falling in a very different category: 5. Denial of due social benefits on account of failure of biometric authentification, or even inability to secure the number, triggering quite a few tragic outcomes. A large section of people are grievously affected. As a consequence of the verdict - definitely not "good", but, arguably, not outright "ugly" either - the threat no. 4, essentially, vanishes. *The verdict, on the face of it, opts to ignore outright the threat no. 5. That speaks a lot.* The first three, as it looks, still remain. But stand considerably diluted. Even then, could prove to be serious, disastrous, in certain cases. (The threat no. 2 is, perhaps, very much curtailed or eliminated?) <<Firstly, the majority states that since the Constitution in Article 21A has made education between the ages of 6 to 14 years a fundamental right, such a right cannot be predicated on the obtaining of an Aadhaar Card and the admission of a child in school is neither a subsidy nor a service. However, Justice Sikri fails to note that the same logic applies to the right to food under the National Food Security Act, 2013 and the guaranteed right to employment under the National Rural Employment Guarantee Act, 2005.>> (Excerpted from sl. no. I. below.) <<On September 27, 2018, a day after the Supreme Court’s Aadhaar judgment, Chunni Bai of Panton Ki Anti, Rajsamand district, Rajasthan died of starvation. She and her husband Uday Singh, both over 75 years old, had not eaten a meal in five days. For two months, they had not received their pensions or rations. Every time Uday went to the ration shop, the dealer would send him back empty-handed saying his biometrics weren’t working. The Aadhaar-linked “foolproof” POS machine would fail to authenticate Uday’s fingerprint. Even more tragically, Chunni passed away on a day when activists from the MKSS (Mazdoor Kisan Shakti Sangathan) visited their home and helped them procure their rations — through a “bypass” (special exemption granted to individual beneficiaries by the sub-divisional magistrate), obtained after a long and complicated process.>> (Excerpted from sl. no. lI. below.) <<“If” is the operative word in how Aadhaar works on the ground, far from the hallowed halls of the Supreme Court. If you are able to meet the enrolment conditions, if your fingerprints and iris scans are captured, if your enrolment centre has electricity, if you have to access the internet, if the enroller does not make any errors in entering your data, if the line is not too long, if your address on the required documents matches, if the spelling of your name matches, if if if...congratulations, you will get an Aadhaar card. ... So, even after enrolling for Aadhaar, if the machine does not work, if your fingerprints are not recognised, if your ration shop doesn’t have electricity, the Aadhaar system fails you. The majority judgement refuses to recognise this problem of exclusion. The court had the opportunity to develop a new understanding of our relationship with technology and the power the state can exercise over citizens. Instead, it delivered a convoluted judgement that almost entirely differs from the dissenting opinion in addressing facts, an unprecedented situation in a constitutional matter.>> (Excerpted from sl. no. llI. below.)] I/III. https://www.thequint.com/voices/opinion/aadhaar-verdict-supreme-court-judgment-quicksands The Supreme Court’s Aadhaar Judgment Uses Flawed Logic SUCHINDRAN BN 2 DAYS AGO Many years ago, in the aftermath of the creation of the famous basic structure doctrine, the legal scholar Upendra Baxi had written a much celebrated article titled, “The Constitutional Quicksands of Kesavananda Bharati and the 25th Amendment.” In it, he argued that the decision generates many paradoxes and that it was likely to be the Indian Constitution of the Future. However, he added that that the judgment was likely to create an illiterate bar because of its sheer length. He concluded by adding that the “illiteracy of the literate is more pernicious for development than that of the illiterate.” Today, with the majority judgment in the Aadhaar case, it seems his words have come to fruition. Let me point out three such instances as illustration. Also Read: Aadhaar Ruling Explained: What the 5-Judge Constitution Bench Said No Same Logic For Different Fundamental Rights Firstly, the majority states that since the Constitution in Article 21A has made education between the ages of 6 to 14 years a fundamental right, such a right cannot be predicated on the obtaining of an Aadhaar Card and the admission of a child in school is neither a subsidy nor a service. However, Justice Sikri fails to note that the same logic applies to the right to food under the National Food Security Act, 2013 and the guaranteed right to employment under the National Rural Employment Guarantee Act, 2005. It is a fundamental principle that rights do not vary in their effect and the hierarchy of rights is relevant only for judging their own validity. Hence, a rule or regulation has to be tested for its validity against the parent legislation; the legislation has to be tested against the Constitution; and a Constitutional amendment can be tested on the touchstone of the basic structure. Secondly, Justice Sikri strikes down the linking of bank accounts and mobile numbers with Aadhaar on the grounds that this does not satisfy the test of proportionality. The majority states that there can be no presumption of criminality and suggests that “those having modest balance and routine transactions can be safely ruled out.” Why is the same logic not applied to taxpayers? Can all taxpayers be presumed to be evaders? Did SC’s Judgment Leave Rajya Sabha ‘Virtually Otiose’? Thirdly, the Court accepts a mere ritualistic incantation of money laundering and black money does not satisfy the test of proportionality in the case of bank accounts, but accepts the same in the case of mandatory linking of Aadhaar to PAN. The same logical fallacy follows when the Court stated that mobile linking fails the proportionality test in so far as the State has not demonstrated the necessity for the linking, and the balancing of the legitimate state interest and the invasion of the right to privacy. Fourthly, the majority by accepting that the Act could have been passed as a money bill has ensured that the Rajya Sabha is virtually rendered otiose. Governments will henceforth continue to bypass the Rajya Sabha at their convenience by getting the speaker to certify all inconvenient bills as money bills regardless of their content. Just as Parliament can make bad laws, Courts can also render bad judgments. But a judgment this bad, verbose and having no internal inconsistency, requires the institution to seriously introspect as to whether the Supreme Court is fulfilling the constitutional trust reposed in it by the founders as their continuing voice. This is a Dredd Scott moment in our constitutional history. Also Read: Aadhaar Verdict Won’t Stop Surveillance – Andhra Govt is Proof (Suchindran is an advocate practicing in the Supreme Court of India. He assisted Senior Advocate Arvind Datar in the matter. He has recently joined the chambers of KK Venugopal, Attorney General for India. Views are entirely personal. The author tweets @suchindranbn. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same) II/III. https://m.timesofindia.com/home/sunday-times/all-that-matters/how-chunni-bais-death-exposes-the-lie-about-aadhaar/amp_articleshow/66009239.cms How Chunni Bai’s death exposes the lie about Aadhaar Nikhil Dey and Aruna Roy | TNN | Updated: Sep 30, 2018, 08:40 IST On September 27, 2018, a day after the Supreme Court’s Aadhaar judgment, Chunni Bai of Panton Ki Anti, Rajsamand district, Rajasthan died of starvation. She and her husband Uday Singh, both over 75 years old, had not eaten a meal in five days. For two months, they had not received their pensions or rations. Every time Uday went to the ration shop, the dealer would send him back empty-handed saying his biometrics weren’t working. The Aadhaar-linked “foolproof” POS machine would fail to authenticate Uday’s fingerprint. Even more tragically, Chunni passed away on a day when activists from the MKSS (Mazdoor Kisan Shakti Sangathan) visited their home and helped them procure their rations — through a “bypass” (special exemption granted to individual beneficiaries by the sub-divisional magistrate), obtained after a long and complicated process. Uday, and Chunni Bai, symbolise Gandhiji’s last man — the poorest and weakest of Indians. They have a half-constructed Indira Awaas house that has no doors or windows. They have to live outside under a plastic tarpaulin. All their life’s belongings lie in a small tin box. There is a half-broken cot kept outside, on which Uday’s disabled wife would spend her entire day and night. Uday would cook rotis, and do his best to look after both of them. When they had nothing, they would go to sleep hungry. Last Thursday, Uday brought home 70kg of wheat — two months of ration. But it was too late for Chunni Bai. On Wednesday, the Supreme Court delivered a judgment upholding the constitutionality of most of the Aadhaar Act with a 4-1 majority. In particular, the judges upheld that “Authentication under Section 7 would be required as a condition for receipt of a subsidy, benefit or service”. The Supreme Court stated, “The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits. When it is serving a much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.” For millions of poor working people, biometric authentication is a harrowing, tension-filled test. Many have just taken it to be their fate that their fingerprint does not register. For millions of disabled and elderly people like Uday and Chunni Bai, it actually does not matter if their biometric authentication is counted in the ‘successful’ 99.76%, or the failure rate of 0.232% cited in the judgment. Just having to reach a ration shop several kilometres away and authenticate, is exclusion. The mere fact that the internet does not work for hours or days leading to POS machines not working is exclusion. The Supreme Court said that “enrolment in Aadhaar of the unprivileged and marginalised section of the society, in order to avail the fruits of welfare schemes of the Government, actually amounts to empowering these persons.” Uday and Chunni Bai are not alone in their fight for survival. The Rajasthan government’s own figures show that over the last year, an average of 23% people did not take their subsidised rations. Not 0.23%, not even 2.3% but a hundred times more at 23%! These are not “wine- drinking, cheese-eating” people like “us”, who have refused to get Aadhaar. These are NFSA (National Food Security Act) beneficiaries who have Aadhaar numbers. In absolute numbers this means that more than 20 lakh families, and almost one crore individuals, haven’t been picking up their Rs 2 per kg wheat — thereby contributing to the thousands of crores of ‘savings’ the Modi government keeps talking about. So where would Chunni Bai go? We have a callous and cruel administrative system that knows what is happening, but is willing to look the other way. We have a court that is innocent of ground realities, and has ruled based on figures that are nothing less than a flight of fancy. We have so-called “safeguards” consisting of empty assurances that do nothing more than help keep our conscience clear. Finally, we have a political class assisted by technocrats and corporates, determinedly driving this platform. The judgment states: “We have taken on record the statement of the learned Attorney General that no deserving person would be denied the benefit of a scheme on the failure of authentication.” Given the past record, it is clear that this assurance too will be breached. It is also clear that for the excluded poor to fight back, they have to target the political establishment. Despite a powerful and forceful dissent, the court has ruled that the legislation is not unconstitutional. However, through sustained democratic assertion, people can bring decisive legislative change. (*The writers are social activists and two of the petitioners who challenged Aadhaar in the Supreme Court) III. https://scroll.in/article/896374/aadhaar-doesnt-work-supreme-courts-judgement-cannot-change-this-reality-by-denying-the-facts Aadhaar doesn’t work. Supreme Court’s judgement cannot change this reality by denying the facts Its failure to respect and take into account the affidavits filed by the poor, the disabled and the elderly describing their hardships is a travesty of justice. Aadhaar doesn’t work. Supreme Court’s judgement cannot change this reality by denying the facts AFP Sep 30, 2018 · 10:30 am Praavita Around 3 km from Devdungri village, where the Mazdoor Kisan Shakti Sangathan and its struggle for the Right to Information Act was born, is Hamela Ki Ver village in Rajasthan’s Barar panchayat. It has an Aadhaar-enabled point of sale machine for authenticating the identity of people who get monthly rations under the Public Distribution System. The machine records a beneficiary’s fingerprints and matches them with their fingerprints stored in the Aadhaar database. If it is a match, the beneficiary is approved to receive the rations. “If” is the operative word in how Aadhaar works on the ground, far from the hallowed halls of the Supreme Court. If you are able to meet the enrolment conditions, if your fingerprints and iris scans are captured, if your enrolment centre has electricity, if you have to access the internet, if the enroller does not make any errors in entering your data, if the line is not too long, if your address on the required documents matches, if the spelling of your name matches, if if if...congratulations, you will get an Aadhaar card. Yet, the Supreme Court’s majority judgement on the constitutionality of Aadhaar calls it a beneficial legislation. In his minority opinion, though, Justice DY Chandrachud recognises that the “Aadhaar project has failed to account for and remedy the flaws in its framework and design”, leading to “serious instances of exclusion of eligible beneficiaries”. “Dignity and the rights of individuals,” he contends, “cannot be made to depend on algorithms or probabilities.” In Hamela Ki Ver, as elsewhere in India, the point of sale machine works only if there is electricity and mobile phone signal. It often does not work for many elderly people with faded fingerprints. There is only one place in the village where the machine receives mobile signal, atop a hill. So, every person wanting to collect their rations has to climb up the hill to try and authenticate their identity. If they succeed, they walk all the way down to the ration shop. If not, they must return another time and try again. So, even after enrolling for Aadhaar, if the machine does not work, if your fingerprints are not recognised, if your ration shop doesn’t have electricity, the Aadhaar system fails you. The majority judgement refuses to recognise this problem of exclusion. The court had the opportunity to develop a new understanding of our relationship with technology and the power the state can exercise over citizens. Instead, it delivered a convoluted judgement that almost entirely differs from the dissenting opinion in addressing facts, an unprecedented situation in a constitutional matter. Denying facts In June 2015, Laxmi Devi from Rajasthan submitted an affidavit to the Supreme Court in connection with this case. She explained how she had been denied work under the rural employment guarantee scheme solely because she did not have Aadhaar. In October 2015, Ajeet Kumar from Delhi filed an affidavit saying he had been denied a ration card because his children did not have Aadhaar. The court received hundreds of such affidavits detailing how people had been denied entitlements for lack of Aadhaar. But instead of relying on sworn affidavits from multiple people, the majority judgement relied on a powerpoint presentation given by the Unique Identification Authority of India, the agency that runs the Aadhaar project. A study commissioned by the Andhra Pradesh government and submitted to the apex court examined why a number of beneficiaries did not take their rations upon the introduction of point of sale machines. It found the primary reason was the failure of fingerprint authentication. At least 19 people have reportedly starved to death after Aadhaar-related problems prevented them from getting their subsidised rations. The majority judgement denies these facts placed before it, calling them “unproven”, while simultaneously holding that the rights of a minority are inconsequential compared to the benefits Aadhaar supposedly provides a majority. “The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits,” the ruling states. “When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.” Denying these facts cannot alter the reality that is lived by the elderly person who cannot walk to a ration shop to put her fingerprints on a machine, or whom the machine won’t recognise. The reality is that Aadhaar does not work. This was one of the first constitutional cases where the Supreme Court of India was called upon to examine the interaction of law, technology and welfare with the poor and marginalised. Its failure to understand, respect and take into account the hundreds of affidavits submitted by the poor, the disabled and the elderly describing the hardships they face because of Aadhaar is a travesty of justice. Praavita is a lawyer and member of the Rethink Aadhaar Campaign and the Mazdoor Kisan Shakti Sangathan. -- Peace Is Doable -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. To post to this group, send an email to [email protected]. Visit this group at https://groups.google.com/group/greenyouth. For more options, visit https://groups.google.com/d/optout.
