By Ankita Anand & Nachiket Udupa
From the time of its inception, in the year 2009, a key question at the centre of the Unique Identification (UID) project has been whether the 12-digit Aadhaar number can be made mandatory, and whether people can be denied services for not having one.
The judiciary has ruled unambiguously on the question. On 23 September 2013, the Supreme Court, in response to a writ petition filed by the former judge KS Puttaswamy, challenging the government’s mission of universal Aadhaar enrolment, and of linking various benefit schemes to the programme, ruled that “no person should suffer for not getting the Aadhaar card,” despite the fact that some authorities had issued circulars making it mandatory. On 24 March 2014, in another case, it ruled that the biometrics collected for Aadhaar are to be confidential, and, additionally, that “no person shall be deprived of any service for want of Aadhaar number … All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number…”
One might presume that two clear rulings from the highest court of the land would suffice to lay down the law across the country. And yet, when we—the writers of this piece—reached the office of an additional district magistrate (ADM) in Delhi on the morning of 20 February 2015 to submit our marriage application under the Special Marriages Act of 1954, we were ordered to provide our Aadhaar numbers. “Without Aadhaar, we cannot process your application,” the ADM’s assistant said.
We pointed out that such a requirement was not mentioned anywhere in the law. The assistant responded that he could not help us, since the software in which he had to key in the information to register our application would not allow him to proceed unless an Aadhaar number was keyed in first.
This was in clear violation of the Supreme Court notice of 2014, which directed all authorities to modify their “forms/circulars/likes so as to not compulsorily require the Aadhaar number.” Laws, it seemed, can lose all power as they percolate through many layers of government before they reach the average citizen.
Neither of us had enrolled for Aadhaar, but the office staff informed us that if we did so immediately, our enrolment numbers would suffice to process the application. Though exasperated, we were keen on getting married soon and so chose to enrol, deciding that we would take up the fight later.
Our experience at the enrolment centre further strengthened our impression that the average citizen is arm-twisted into falling into step with the requirements of the Aadhaar programme. For starters, we were charged Rs 100 each by the enrolment centre, when in fact, the procedure is supposed to be free. We also found that the application form asked users whether we granted consent for the information to be shared (without specifying what information would be shared, with whom, and for which purpose). Neither of us wanted to consent to any such thing, but when we received a slip acknowledging our enrolment, it showed that we had in fact given consent. When we asked the person who was enrolling us about this, his response was the same as the person at the ADM’s office—that the software would not allow him to enrol us unless he indicated that we consented to share our information.
We had resigned ourselves to being bulldozed into doing the government’s bidding when, later that day, we had the good fortune of meeting the activist and scholar Usha Ramanathan, who has been opposing what she sees as the flagrant wrongs of the Aadhaar project. When Ramanathan offered to accompany us to the ADM’s office to argue our case, we gladly accepted.
Three days later, we returned to the office to argue our case with the staff. In the course of our discussion, we offered the staff a solution that we thought might circumvent the software’s hiccups: that they key in random characters in the box for the Aadhaar number. The assistant smiled at us indulgently and said that he had tried it all. He then asked us to meet the ADM himself and sort out the matter.
The ADM, who, as it turned out, was a polite and patient man, explained to us that as a government officer, he was caught in this matter between obeying the orders of the judiciary and those of the executive. While the former ostensibly lays down the rule of law, it can only be put in operation, and thus trickle down to the layperson, by the executive. After the Supreme Court orders, the ADM said, the Revenue Department of Delhi should have sent around directions to operationalise the court’s order. It had not done this. Therefore, he had to follow the existing system, which mandated the use of Aadhaar. With the executive ignoring the judiciary’s rulings, the law remained a theoretical truth. The ADM suggested that to pursue the matter, we take up the matter at the Department of Revenue.
The Department of Revenue, which handles “issues of various statutory documents,” including marriage certificates, had issued a circular in December 2012 stating that the Aadhaar platform would be used for many of their services. “Hence, it is considered necessary that the Aadhaar information of the applicants seeking the various certificates from the Revenue Department is to be given in the Application Forms itself,” the circular stated. (The certificates listed included the SC/ST certificate, OBC certificate, domicile certificate, income certificate and others, but, curiously, the marriage certificate is not mentioned in the list.)
At the office, we were directed to another official, a sub-divisional magistrate (SDM) who handled Aadhaar-related matters. If the ADM had been polite, and unhelpful only because he did not know how to help, this SDM was pointedly rude. We waited outside his door for about half an hour without being shown in. Finally, we intercepted him when he stepped outside the office on his way elsewhere. “Who sent you here?” he asked, looking at us suspiciously. We told him why we were there. “It cannot be done without Aadhaar,” he scoffed. We pointed out that such a requirement was against court orders. “Go file a contempt petition then,” he said, before storming off.
As we waited there, determined to take him up on his challenge, we received a call from the ADM’s staff, asking us to come back because they had figured out a way around the problem. Back at the office, the ADM told us that he had spoken to the legal department, the legal cell and some other ADMs in other jurisdictions. All this legal consultation yielded the following advice, which we had already suggested: if we were determined to register our marriage without the Aadhaar, all they had to do was key in dots instead of digits in the box provided.
They proceeded to do this, and our application went through successfully. After this was done, the ADM struck up a conversation with us to find out why we were so set against the Aadhaar project. We explained our various concerns, ranging from privacy issues to the sheer inefficacy of the system. “Actually I haven’t enrolled myself either,” the ADM said. “My wife complains that I am enrolling the whole world but not our family.” He added, “I’m not fully convinced of its benefits.”
Ahead of the wedding date, we discovered another potential roadblock. Subsequent to our previous rounds of the offices, the Revenue Department had issued a follow-up circular. Absurdly, the circular attempted to fulfil the SC’s stipulation that no one should be denied any service for want of an Aadhaar number, by ordering that anyone without an Aadhaar should be taken to be enrolled at the nearest centre so that they could then provide the enrolment number. The fact that this was still a form of coerced enrolment seemed to escape the authorities completely.
By happy coincidence, a hearing in the Supreme Court on Justice Puttaswamy’s writ petition—during the earlier hearing of which the initial order in 2013 was issued—was scheduled for 16 March. With the new circular in hand, Ramanathan went to meet the lawyer in the case, Gopal Subramaniam, to apprise him of the developments in the lower rungs of the government.
Six days later, at the hearing, Subramaniam began by pointing out that there was widespread violation of the court’s order against mandatory Aadhaar. A lawyer who was present told us that he cited our example: two people seeking to get married who were turned away for not having enrolled. Justice Chelameshwar, who was heading the special bench constituted for the matter, asked whether it was an arranged marriage or a love marriage. “Special marriage,” Subramaniam responded. Chelameswar jovially retorted, “Mr Subramaniam, you should be pleased that government has not mandated that they need to have Aadhaar to even love one another.” “Thankfully, that is just about the only thing they have left out, your lordships,” Subramaniam said.
Subsequent to this hearing, the Supreme Court issued an order reinforcing its earlier stand on the issue. “It is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities,” the court said. “We expect that both the Union of India and States and all their functionaries should adhere to the Order passed by this Court on 23rd September, 2013.”
On 27 March, Ramanathan visited the Revenue Department to check that there would be no further Aadhaar-related hurdles to our registering our marriage. There she learned that the SDM who had earlier advised us to file contempt, had issued a note stating, “All concerned are requested to ensure strict compliance of the orders of Hon’ble Supreme Court of India. Any administrative instructions in violation of the order of Hon’ble Supreme Court will have no validity.” Finally, the impact of the law seemed to reach at least some of the lower offices. The ruling has not ensured compliance across all government offices, but this one circular represents one small step forward.
And so, we were married at the ADM’s office without any further trouble. But, in our first encounter with the system, we had in fact enrolled for the Aadhaar number, even if we didn’t provide it for the marriage application. Thus, we now have two more battles before us. One, to revoke the consent we were forced to give to have our information shared. Two, more ambitiously, to try and get our Aadhaar numbers revoked.
The writers of this piece are based in Delhi. The views expressed here are their own.
(c) 2015, The Caravan. Crossposted with permission.
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