Queing up for Aadhar. Image source: By Biswarup Ganguly, 2012 from Wikimedia Commons. CC license Attribution.
The litigation and the public debate on Aadhaar is a significant moment in the history of public policy-making in India. This debate is about privacy and civil liberties, access and exclusion from social security services and about corporate intrusion into everyday lives of people. It signifies a change in the relationship between the state, capital and people that is mediated through technology. It is part of a political strategy that shifts legal and regulatory competencies from the public and legal domain to the private sphere. However, taking it as a fight between the virtuous public interest represented by non-partisan intellectuals and an evil government that is out to steal our biometric data is of no use. A more nuanced approach that looks closely at these public interest litigations is in order.
However, taking Aadhar/national identity cards as a fight between the virtuous public interest represented by non-partisan intellectuals and an evil government that is out to steal our biometric data is of no use.
In this article, I want to show, through an analysis of court cases and the discussions around these cases, how it is a much more complex story than one of an easy opposition between the citizen and the state or privacy and surveillance. Aadhaar is being opposed on many grounds and it is crucial we analyse them closely. I attempt an analysis of one of the grounds of opposition to Aadhaar that repeatedly comes up in Aadhaar petitions- nationalism and illegal migration- and use it to understand the primary focus of these petitions-privacy and civil liberties.
Litigation around Aadhaar and anti-migrant and anti-Muslim references in the petitions
Reading through some of the Aadhaar petitions, it would seem that there is no better vehicle to peddle hatred and prejudice than public interest. The first PIL in the Supreme Court against Aadhaar was filed by Justice Puttaswamy in 2012. I quote from the petition:
“That due to the constitution and issuance of the aadhar cards in pursuance of the said notification the fundamental rights of the innumerable citizens of India namely Right to Privacy falling under Article 21 of the Constitution of India are adversely affected by the Executive action of the Central Government proceeding to implement an executive order dated 28.01.2009 while the Bill namely "National Identification Authority of India Bill, 2010 [hereafter Shortly referred to as the Bill] by issuing Aadhar numbers to both citizens as also illegal immigrants presently illegally residing in the Country… . Aadhaar is being issued without any proper verification by the private companies whose main object is to make money by issuing more cards. They are issuing cards even on the basis of an affidavit. After the activity is legislated, it will be difficult to remove/re-verify such database, which will cause serious security issues for the country". (emphasis added)
Three issues seem to be bound up in this petition- privacy, illegal immigrants and national security. I call this the primordial liberal unconscious that bundles nationalism and individual liberties together but pushes caste and religion to the background only to retrieve it to strike back when privilege is questioned. The Supreme Court in its interim judgement in September 2013 picked up the issue of illegal migrants:
“in the meanwhile, 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, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant" (emphasis added).
This judgement was cheerfully welcomed by many scholars and activists because it made clear that Aadhaar was not mandatory but its regressive second part denying it to migrants was ignored and brushed aside even after it was pointed out to the activists by me in an article. This attack on migrants continued in subsequent petitions filed by activists and public-spirited citizens. One of the grounds for challenging Aadhaar in the petition filed by S .G.Vombatkere and Bezwada Wilson against Aadhaar is the following:
The impugned Act indiscriminately and without any reference to the legal status of a person claiming to reside in India treats those who are legally resident and those are illegally present, as a single homogeneous group for the purposes of targeted deliveries. It is respectfully submitted that illegal immigrants and legal residents cannot in law be treated as a single group for the stated object of targeted delivery in respect of subsidies, benefits and services for which expenses are incurred from the Consolidated Fund of India. The foundation of the impugned Act is unconstitutional having regard to the poorly verified and unreliable assessment of legal residency at the time of the issuance of the Aadhaar number. This patent illegality stands validated by well documented reports of Aadhaar numbers being issued to persons-of foreign nationalities and allegiance and who work against the national interest. Illustratively, in the Burdwan blast which took place in October, 2015, the arrested Bangladeshi suspect, Tarikul lslam, had an Aadhaar number, which he had used to project himself as an Indian citizen and avoid getting arrested by the NIA. Another instance is where Special Investigation Team, Hyderabad found that a Pakistani national, Mohammed Mohammad Nash, who has links with a terror organisation called Harkat-ul-Jihadi AI-Islami (HuJI) had obtained an Aadhaar card.
The petitioners are worried that Aadhaar will be issued to people who are illegally residing in India, especially those who are from Pakistan and Bangladesh. Through these references to terror organisations and illegal migrants, they spoke the language of the Indian security establishment. These arguments are based on an idea of exclusive nationalism and national interest. That many Muslims languish in jail after being framed by Indian security agencies and that many are released after several years of incarceration when these agencies fail to prove the charges seem to have escaped the notice of the petitioners. In fact, William R Pinch identifies creation of NIA ( National Investigation Agency) in the aftermath of Mumbai attacks as its enduring repercussion that will introduce a “presumption of guilt" language. It is the logic of the state that anti-Aadhar petitioners use to strengthen their opposition to Aadhaar cards which is anti-migrant and Islamophobic.
‘Illegal immigrants’is usually a phrase reserved for Bangladeshi immigrants in India some of whom have migrated decades back and whose children were born here. In different parts of West Bengal and North and Northeastern India (predominantly in the state of Assam), they live precarious and marginal lives and are chased out of their homesteads and settlements several times. As most of them are Muslim, the prevailing Islamophobic atmosphere too contributes to their alienation. They are political, economic and ecological refugees. Many jobs that need manual labour are carried out by them in Indian cities including construction work and domestic labour. Some of them possess documents –ration cards, electoral identity cards and they are part of the larger itinerant workforce who move from place to place in search of work. Many times, ‘illegal immigrant’ is a euphemism to illegalise the presence of poor workers irrespective of whether or not they are immigrants.
Some of them possess documents –ration cards, electoral identity cards and they are part of the larger itinerant workforce who move from place to place in search of work. Many times, ‘illegal immigrant’ is a euphemism to illegalise the presence of poor workers irrespective of whether or not they are immigrants.
The experience of surveillance by a migrant worker is radically different from the experience of an upper caste, middle class or even a poor person who is considered to belong to a place i.e. who is not a migrant. It should also be noted that caste mediates who is a desirable migrant and who is not. In our cities and towns, migrant workers are systematically illegalised and their presence criminalised. For example, migrant workers in Kerala are routinely rounded up and imprisoned if they do not produce identity cards. In 2012, the local police in Ernakulam demanded that all migrants produce a police clearance card from the police stations in their villages of origin certifying that they have no criminal cases registered against them. A Hindu, uppercaste techie from West Bengal will not be rounded up for loitering in a public place in Ernakulam as he/she will have different modes of accessing public space than a migrant who does manual work. This is part of our urban life – this constant dispossession and disenfranchisement of the poor.
The experience of surveillance by a migrant worker is radically different from the experience of an upper caste, middle class or even a poor person who is considered to belong to a place i.e. who is not a migrant. It should also be noted that caste mediates who is a desirable migrant and who is not. In our cities and towns, migrant workers are systematically illegalised and their presence criminalised.
It is a similar idea of citizenship that Aadhaar petitioners deploy in their petitions. This strategic Islamophobia of the anti-Aadhaar petitioners has consequences for people. The extremely low enrolment rates in Assam (6% against a national average of 86%) point to the fact that these public interest litigations were successful in preventing “illegal migrants" from getting identification documents. Some newspaper reports suggest that there will be no Aadhar cards enrolled in the state before the National Register of Citizens (NRC) is updated. That anti-Aadhaar petitions had to rely on criminalisation of migrants and Muslims speaks volumes about “public interest" and its ability to peddle prejudices.
Trickery, forgery and the imitation of the state by the poor
Another question that these petitions throw up is that of the difference between a resident and a citizen. For example, Aruna Roy’s petition states that a person who doesn’t have identity documents can be recommended by another person who has an Aadhaar card and “that this give rises to various security risks and the possibility of fake identities, which can compromise national security". The Aadhaar website announces that anybody who is a resident can get an Aadhaar card and that it is not a document of citizenship. This fear of trickery and forgery has been a constant in these petitions as well as in some of the campaigns against Aadhaar.
30,000 people were enrolled using the fingerprint and password of Mohammed Ali, a sacked data entry supervisor in an Aadhaar enrolment centre in the old city in Hyderabad in 2012. Anti-Aadhaar activists tweeted (in 2017) about this and other fakes, duplications and glitches citing it as an instance of unreliability of Aadhaar and as symptomatic of the risks that are involved in handing over it to private players. They also warn about middle men and proliferation of an informal bureaucracy. Middle men, forgery and bribes are part of the architecture of the state in India and consequently of democratic practice. Doing away with petty middle men and small-time crooks is a capitalist dream, not a democratic dream in the Indian context. Strangely, both Aadhaar and its opponents subscribe to this dream of a transparent state and technological infallibility.
At the same time, the events since demonetisation point towards a reconfiguration of this interface between state and citizen that is at present mediated by capital of various sizes and entrepreneurs of myriad political allegiances. The move is towards a centralisation of this interface and a homogenisation of capital. Aadhaar could serve as a nodal agency that can facilitate this centralisation of the state-citizen interface. This is a political strategy that is aimed at both traditional small capital and new entrepreneurship that thrives on trickery, forgery and occupation of state. These entrepreneurial energies are the newest enemy of the state whose interests are synergising with that of corporate capital. This is the political context in which the fight against Aadhaar is being fought. This is beyond the grasp of some of the anti-Aadhaar activists. Their Islamophobia and an uncritical distaste for middlemen are served well by their liberal juridical zeal.
The move is towards a centralisation of this interface and a homogenisation of capital. Aadhaar could serve as a nodal agency that can facilitate this centralisation of the state-citizen interface.
Privacy, private property and private capital
How is this imagined liberal citizenship that is hurt by trickery and forgery related to a singular and simple notion of privacy and its defence? Privacy and private property are intimately related. I do not mean that it is a privilege of the propertied classes and others do not have a right to it. What I mean is that the rich and the poor, Hindu and Muslim, uppercaste and dalit, have different relationships to the state and hence a different relationship to privacy and surveillance. At one level, privacy rights are property rights in disguise as argued by Judith Thompson . She argued that if we dig deeper into privacy, we will see that it is bound up with some form of property rights or property like rights, for example, on our body. It is useful in understanding Aadhaar to clarify the connections between privacy and private property without reducing one to the other .
If we dig deeper into privacy, we will see that it is bound up with some form of property rights or property like rights, for example, on our body. It is useful in understanding Aadhaar to clarify the connections between privacy and private property without reducing one to the other
For example, when a person says that she/he has the right not to be tracked, that amounts to saying that information about his/her movements, use of financial resources and access to welfare and services is her/his property. People belonging to different classes and interests will have different stakes with respect to this tracking. It will also depend on who is doing the tracking- police or a commercial entity. An entrepreneur, say the CEO of an IT start up company, who does far more online transactions, or a student with student loan is far more likely to be affected individually from the tracking than a migrant worker who is remitting money online or through a bank branch. The information about an individual migrant worker is more likely to feed into data about financial behaviour of a certain group of people. The individual liberty of a Muslim migrant worker is affected because of his/her membership in a group. This is unlike the case of an uppercaste IT entrepreneur whose individual liberty with respect to financial transactions would be at risk. Not only the value of information regarding people belonging to different caste, religious or ethnic groups are different, but also is their standing as individuals.
What I mean is that the rich and the poor, Hindu and Muslim, uppercaste and dalit, have different relationships to the state and hence a different relationship to privacy and surveillance.
This points to the fact that the data that is generated from Aadhaar will be “collective"- collective that only exists as commodified and enclosed such that it has no meaning outside of capitalism. Naturally, like any collective that exists for capital, this data base also needs state sanction and collaboration. It is this “collective" nature of this data that makes it impossible to oppose it on the basis of a notion of privacy that is based on just the individual’s rights. This “collective" could even be called an anti-commons. It exists as a corollary to the state and capacitates it with usefulness. State is dependent on data about people for its existence and for its legitimation.
It is this “collective" nature of this data that makes it impossible to oppose it on the basis of a notion of privacy that is based on just the individual’s rights. It is impossible to protect privacy, especially private information embedded in big data, without questioning the underlying social relations that produce this data. Privacy is a bad argument for data protection precisely because it is not just the individual citizen who needs protection from this theft of his or her property like rights over information on physical and demographic characteristics, but specific groups that could be targeted using this data and this data itself.
In other words, it is impossible to protect privacy, especially private information embedded in big data, without questioning the underlying social relations that produce this data. In fact, privacy is a bad argument for data protection precisely because it is not just the individual citizen who needs protection from this theft of his or her property like rights over information on physical and demographic characteristics, but specific groups that could be targeted using this data and this data itself. This is especially true because this data is already produced and commodified, which is what UIDAI has done. It is no wonder people have enrolled en masse in Aadhaar because they understood this change in the citizen-state interface that commodifies private information. This consent and complicity is not uninformed or merely forced, but tactical and tactile. The tactility of this consent is partly due to our acquaintance with exchange of private information for certain benefits through internet. Anant Maringanti points out, following Partha Chatterjee, that survival of ordinary people have always depended on being able to choose tactically when to become visible and be counted by the state and when not to be counted by the state. This intuitive understanding of state-space is inaccessible to many anti-Aadhaar litigants because they are good liberal citizens who think they are fighting the good fight.
This consent and complicity to Aadhar is not uninformed or merely forced, but tactical and tactile.
Image source: Kannanshanmugam,shanmugamstudio,Kollam. Wikimedia commons. CC License Attribution Share Alike.
It is not accidental that Islamophobia and the language of the security state crept into the petitions. It is the glue that lends coherence to any liberal enterprise in this country. Can privacy as a right be rescued from the clutches of this toxic liberalism that does not see Muslims and migrants as citizens? I am not sure as long as we do not recognise the limitations of a notion of privacy based on possessive individualism. The words of the attorney general Mukul Rohtagi in the Supreme Court representing the central government should have woken up the Aadhaar litigants: “The arguments on so-called privacy and bodily intrusion is bogus. One cannot have an absolute right over his or her body". I would agree with him if that could give us a different set of questions to approach Aadhaar.
Survival of ordinary people have always depended on being able to choose tactically when to become visible and be counted by the state and when not to be counted by the state. This intuitive understanding of state-space is inaccessible to many anti-Aadhaar litigants because they are good liberal citizens who think they are fighting the good fight.
The author is an associate fellow at Institute for Human Development, Delhi. The views expressed are her own and do not necessarily represent the views of the Institute for Human Development or GenderIT.org. She wishes to thank the organisers of “the legal unconscious" talk series at Indian Law Institute, Delhi for an opportunity to present these ideas. Thanks are also due to Bhim Reddy, John Mathias, Afthab Ellath, Namita, and Ashley Tellis for comments and suggestions and Advocate Prasanna for sharing documents.
1. Judith Jarvis Thomson, “The Right to Privacy”,Philosophy and Public Affairs. 4. 1975
2. See a critique of Judith Thomson’s position in the article by Annabelle Lever published in The Good Society https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2813245
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