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(This is the third and penultimate essay in Anand Venkat’s four-part series examining the factual foundations of the Aadhaar judgment.)

In our attempt to further decode the factual errors in the Aadhaar judgement, it is worth asking an important question: why is genuine engagement with contradictory facts very hard? Charlie Munger wrote about 24 causes of misjudgement in 1995 and, not surprisingly, simple psychological denial comes up as number 2 in that list.

In this post, we will argue that simple denial alone can’t explain the Majority’s inability to deal with aspects of the petitioners’ challenge. Technological illiteracy is a factor as well.

Surveillance

What is surveillance? If a policewoman tags along a person, at all times, then it fits the definition of surveillance, because she knows all about the person. Now what if, instead of a policewoman, a recording device is always present? That too fits the definition. So surveillance is not simply someone knowing about a person, but having the capability to know all about her, and actively using that capability.

How is it possible for someone to have the capability to know all about a person ? The answer is “Body Tagging”. If every activity that the person ever does in her life can be reliably attached to her body, a detailed profile can be built about the person, which enables surveillance. Put simply, profiling is surveillance.

Body tagging a person’s life across multiple activities can be easily done, if the “body” is given a unique number, and the unique number is attached to every activity. Thus, if a technological means called “Aadhaar” can produce perfect “unique numbers” that are attached to a body, as the Majority judgement states in paragraph 55 – “when it comes to obtaining Aadhaar card, there is no possibility of obtaining duplicate card” – then mass  surveillance is a logical corollary, if it is attached to other databases.

Surveillance: The absence of factual engagement

The Majority, however, chooses not to engage with the petitioners’ submissions about how the body tagging of persons, across multiple databases, is surveillance. It was brought to the court’s notice that many states have built “State Resident Data Hubs [“SRDHs”], which have body tagged sensitive personal details of their residents, available in multiple silos, and have merged them into one “golden” record. For instance, the state of Andhra has gone further than most and built star-trek dashboards, that display the intimate personal details of 43 million of the state’s 50 million residents: GPS coordinates of their homes, the medicines they use, the food rations they eat, what they say about the Chief Minister on their social media accounts, real-time feeds of thousands of security cameras (with some cameras inside people’s homes – voluntarily, of course), their castes and sub-castes, their religion, their student scholarships and old-age pensions, their movement in every state ambulance, and of course — their Aadhaar numbers.

The Majority avoids engaging with the argument because if it did, it would result in arriving at the same conclusion that Chandrachud J arrives at, in his dissenting opinion, that the technological design of the project actually subverts the Aadhaar Act – actually enabling profiling through surveillance – and hence cannot stand: 

When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to reconstruct a profile of an individual’s life. It must be noted while Section 2(k) of the Aadhaar Act excludes storage of individual information related to race, religion, caste, tribe, ethnicity, language, income or medical history into CIDR, the mandatory linking of Aadhaar with various schemes allows the same result in effect. For instance, when an individual from a particular caste engaged in manual scavenging is rescued and in order to take benefit of rehabilitation schemes, she/he has to link the Aadhaar number with the scheme, the effect is that a profile as that of a person engaged in manual scavenging is created in the scheme database. The stigma of being a manual scavenger gets permanently fixed to her/his identity. What the Aadhaar Act seeks to exclude specifically is done in effect by the mandatory linking of Aadhaar numbers with different databases, under cover of the delivery of benefits and services. (Chandrachud J., dissenting, paragraph 274)

Surveillance: Internal contradictions

Instead of focussing on body tagging across various databases, the Majority instead focuses only on the surveillance potential of the “Metadata” stored in the CIDR. This leads to logically contradictory observations.

For instance, if Facebook and Google, can know the places where one has shopped and also know the movies that one watched, they already have “data.” But the Majority then went on to make the very bizarre claim that in Para 160 that “data” can turn into “meta-data”! All this data is there with the companies in respect of its users which may even turn into metadata.”

In the very same paragraph, it makes the further astonishing claim that OTPs are sensitive personal information in the same manner as biometrics:

Every transaction on a digital platform is linked with some form of sensitive personal information. It can be an individual’s user name, password, account number, PAN number, biometric details, e-mail ID, debit/credit card number, CVV number and transaction OTP etc.

The Majority’s inability to understand technology also becomes clear from its discussion on “Authentication log retention”, in paragraph 260.

We do not find any reason for archiving the authentication transaction data for a period of five years. Retention of this data for a period of six months is more than sufficient after which it needs to be deleted except when such authentication transaction data are required to be maintained by a Court or in connection with any pending dispute. Regulations 26 and 27 shall, therefore, be amended accordingly. (paragraph 260)

Let us deconstruct the ruling here carefully. The judgement says that

  1. Authentication transaction data needs to be deleted after six months.
  2. But not if there is any pending dispute or ordered by a court.

By doing so, it restricts the time frame, in which a dispute could arise to “only six months”. This has ramifications for biometric fraud disputes such as Gujarat biometric data trade, where biometrics of legislators was sold en-masse for 7 lakh rupees and the Airtel LPG routing scam, as these scams went on for months before detection. But the Majority, through its ignorance of technology, ensures instead that it would not be possible for law enforcement to investigate such cases, through limiting the retention of metadata.

And here’s the contradiction: after all, if surveillance is indeed impossible and far fetched as was stated in para 197 (“… therefore, the threat to real-time surveillance and profiling may be far-fetched...”), why would long term retention of authentication logs would be an issue at all? The reading-down is both inexplicable and logically incoherent.

Addendum: Direct Benefit Transfer

There are three important pillars in Direct Benefit Transfer (DBT).

  1. The Aadhaar number
  2. Mobile
  3. Bank Account

In the earlier rollout of DBT, the various schemes’ databases merely collected the bank account numbers or the post office savings bank account numbers of the beneficiaries. There was simply no need for either Aadhaar numbers or mobile numbers. However, once mandatory biometric authentication was introduced as a pre-condition for DBT, the situation changed drastically.

Biometric authentications are always fallible and the Majority’s refusal to engage with that simple technological fact, does not change the reality. Hence the only recourse is OTP authentication via the linked mobile phone. However, UIDAI does not verify the phone, during enrolment, which makes OTPs ineffective. The only “technological hack” then available for UIDAI to avoid biometric exclusion is Mobile linking.

Ever since National Payment Corporation of India (NPCI) introduced the Aadhaar mapper, which links bank accounts to Aadhaar numbers, central and state departments no longer collect beneficiary bank accounts, and instead use the NPCI Mapper to do Direct Benefit Transfers. Hence, for DBT via NPCI to work, seeding Aadhaar numbers into bank accounts was essential.

The court does not engage with the technological aspect of this ecosystem, when it rules that both Mobile and Bank linking are unconstitutional, and strikes them down. So in effect, without perhaps intending to, it has also brought the current Aadhaar-based DBT ecosystem, where NPCI and banks are important players, to a grinding halt. Further, it  has only worsened the exclusion problem caused by fallible biometric authentication, by removing the OTP option.

Conclusion

The factual and logical contradictions outlined so far, lead one to conclude that the Majority has not understood that technological progress is making the law irrelevant. As Lawrence Lessig pointed out:

Every age has its potential regulator, its threat to liberty. Our founders feared a newly empowered federal government; the Constitution is written against that fear. John Stuart Mill worried about the regulation by social norms in nineteenth-century England; his book On Liberty is written against that regulation. Many of the progressives in the twentieth century worried about the injustices of the market. The reforms of the market, and the safety nets that surround it, were erected in response.

When faced with a civil liberties case, that is second longest in the history of the court, the least that the Majority could have done was to engage with the facts and the new emerging technological domain of cyberspace, and how it could make constitutional rights irrelevant. As Lawrence Lessig again points out:

Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only.

By obstinately refusing to engage with the factual and technological aspects of the Aadhaar project, and how the architecture of the project nullifies the very Aadhaar Act that it upheld, the Majority has only demonstrated its own ignorance of technology, and has probably accelerated the Supreme Court’s own irrelevance, as Lessig had proclaimed so boldly.