POVERTY is, as Philip Alston, the UN Special Rapporteur on extreme poverty has pointed out, a political choice. The Indian Supreme Court has played an important role in ensuring that the government was pushed to make the right choices. Since the 1970s, the Supreme Court has been a key player in giving life to socio-economic rights, famously turning them from ‘guiding’ and non-justiciable principles of governance, into legally enforceable rights, through introducing procedural innovations to bring the courts closer to the ‘common man’.¹

However, the impact of the Supreme Court’s intervention in the lives of people living in poverty is contested, and often when the rights of people living in poverty are balanced against the ‘larger public interest’, the former are often left out. This played out in its recent judgement upholding the constitutionality of the Aadhaar Act and programme. The judgement, which was given in a 4-1 split, was marked by an ‘invisibilization’ of the lives and realities of people living in poverty.²

The Aadhaar programme, which aimed to provide a unique number to all residents, identified by their biometric features, first started collecting peoples’ biometric and demographic data in 2009. It has been controversial since its inception. The national biometric identification programme began as an ‘entitlement’ that every citizen and legal resident could opt for, to promote inclusion into government programmes. This was to be achieved by providing a recognized ID to all residents and promoting inclusion by de-duplicating the databases of beneficiaries. It slowly crept into every aspect of public life, as a mandatory precondition for a number of services.

 

In 2010, a bill governing the programme was introduced in Parliament, which was referred to the Rajya Sabha Standing Committee on Finance. The committee’s 2011 report came down hard on the programme, criticizing the bill for its lack of safeguards and potential for abuse. The bill was withdrawn and a materially similar version, the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act was introduced in the Lok Sabha in 2016, with one difference. It was reframed as ‘bill to ensure delivery of benefits, subsidies and services’, and introduced in the Lok Sabha as a Money Bill. Thus, a vast reaching digital and biometric based identification programme was couched in the trojan horse of bettering access to welfare rights, through giving people an identity, and ensuring that ‘targeted’ benefits reach the poor.

The programme, and the act came under fire from a range of petitioners from privacy activists, a former judge, and members of civil society. In 2014, petitioners approached the Supreme Court to argue that not only did the Aadhaar programme create an impermissible incursion into the right to privacy, but also that mandating it for all government welfare programmes was arbitrary, dangerous and exclusionary. The coercive power of the state was being used to cover the most routine activities, and ‘leash the citizenry’ to a central data hub that would record linkages between that individual and various public as well as private sector agencies. There was little evidence to show that such a large-scale bio-metric programme was feasible, or that the country was ready for this technology, or that it was even useful. They pointed out that for Aadhaar based authentication to work for the disbursal of public benefits, required the cooperation of many ‘fragile technologies’. For example, for the disbursement of ration for the public distribution system, the point-of-sales machine, the internet, biometrics, remote servers and mobile networks all needed to work – at the same time – to ensure that people could access their benefits.³

 

The Supreme Court’s ruling found that this was a permissible condition to attach to welfare rights. The state’s arguments before the Supreme Court strangely inverted the petitioner’s argument that Aadhaar was causing people to be excluded from their benefits, arguing that Aadhaar was in fact increasing peoples’ access to their entitlements. In its judgement, the Supreme Court paradoxically found that Aadhaar was voluntary but also mandatory for people wishing to access their benefits, and for income tax assesses. This was primarily based on the belief that it was beneficial for people living in poverty. When it came to extending Aadhaar to other services, which impacted the middle class, the court dealt with it in a startlingly different manner. It held that blocking peoples’ access to their bank accounts was an impermissible incursion into their fundamental rights (and violated their right to property); and that the ‘mere ritualistic incantation of black money’ was not sufficient to justify linking every bank account to an – although they didn’t use the term – ‘electronic leash’.

 

However, when it came to Section 7, the court wholeheartedly accepted the government’ submissions that Aadhaar was necessary to give people access to a portable, perpetual form of identity; and that verification of peoples’ identities by de-duplication was required to curb corruption within the welfare system. It was, they held, a way to make peoples’ lives better. The irony of mandating a form of identity, which was supposed to make peoples’ lives easier, was lost on the court. Although all residents were scrambling to get enrolled within Aadhaar, the most marginalized were left to navigate the many fragile aspects of Aadhaar linkage, in order to access their requirements.

How do we explain these internal inconsistencies within the Aadhaar judgement? The feminist psychologist Carol Gilligan argued that the way to understand a story is not to slot each thing said into categorical boxes, but to listen for the plot in the whole story, because that is when the internal inconsistencies start coming through. Then, is the whole story being in the Supreme Court’s judgement partly upholding the Aadhaar Act and programme?

The Indian Supreme Court has a long tradition of standing up for the rights of people living in poverty and its progressive role has been well documented. Every law student can recite the key aspects of this: the relaxing of procedural rules, including the creation of ‘epistolatory’ PIL jurisdiction, the use of the continuing mandamus to ensure the court had longer oversight over issues before it, and giving life to the Directive Principles which bridged the gap between social and economic rights and civil and political rights. Indian constitutional law had long sidestepped the duality of the civil and political rights, and socio-economic rights that international human rights law has just begun to overcome.

 

Beginning with Francis Coralie Mulllin v Union Territory of Delhi⁴ where the Supreme Court first noted that Article 21, had to mean ‘more than mere animal existence’, the Supreme Court affirmed that there was the right to food, work, education, health by reading these social and economic rights as interdependent with, and inextricably connected to, the ‘umbrella’ constitutional right to life, under Article 21. A slew of judgements have followed over the years, with landmark cases such as the ‘right to food’ cases, and most recently, the Swaraj Abhiyan case which looked into the implementation of the National Food Security Act and preparedness for impending drought.

However, the extent to which the Supreme Court has, through these interventions, changed the lives of people living in poverty, is contested. While the Supreme Court’s judgements have been heavy on rhetoric, they are often thin in substance and impact. Madhav Khosla characterizes the Supreme Court’s approach as performing ‘conditional rights jurisprudence’, where it prefers to focus on the method of implementation rather than the inherent nature of the measures, thus without establishing any systemic rights.⁵ Professor Rajgopalan discusses how the court has often been pro-human rights, but anti-poor.⁶ For instance, in Olga Tellis, the famous ‘right to livelihood case’, the court didn’t actually rule that the slum dwellers had a right to housing, but that they were entitled to notice and a hearing before being evicted, and the lack of that process would be an arbitrary violation of their right to livelihood, part of right to life under Article 21.⁷

 

Thus, what is often affirmed by the court ‘…a right to a process and not a remedy for the structural violation itself.’ The Supreme Court’s interventions in the lives of people in poverty, has been to use the law to find ‘solutions to the problems of the poor’, not to take the law off their backs. This has been particularly apparent in cases relating to labour rights, cases requiring adjudication between landlords and tenants, and cases where economic development or the environment are balanced against the impact on people, with the latter being sacrificed at the former’s altar. For example, as Rajgopalan discusses, ‘When polluting industries are ordered to be closed by the court, the workers and their families who are directly affected, are rarely heard before orders are issued.’⁸ As Anuj Bhuwania points out in his work on the use of the PIL, ‘the [court’s] concern has rarely been negative liberty from the state: much more often, it is positive liberty through the state.’⁹

Thus, although the court has been ready to hear cases related to the protection of socio-economic rights, its approach has been marked by a distance, which permits it to accept generalities that have little impact on peoples’ lives. Bhuwania terms this ‘mobilization of suffering’, comparing it to Hannah Arendt’s comparison of, in the context of revolutionary France, ‘… "eloquent pity", [and] "mute compassion".’ While the latter approach ‘has no notion of the general and no capacity for generalization’, the former ends up depersonalizing the sufferers, lumping them together into an aggregate... the suffering masses…’

 

It is on this reading that it is possible to extol the constitutional status of socio-economic rights, while also accepting the argument to make Aadhaar mandatory to access these rights, and ignore the evidence which illustrates how it imperils access to these rights. Bhuwania quotes Uday Mehta on ‘the uses of such pity’ in Indian constitutionalism, who argues that, ‘[because] pity maintains a distance from its object, it can conceive of the object as embodying an abstraction, or representing a type, such as the poverty-stricken or the disadvantaged castes or the people of India. And because it is not limited by the injunction to share in the plight of those it perceives, it can imagine a redress to their condition that corresponds to the generality of its perspective.’¹⁰

The Aadhaar judgement is emblematic of this approach. There were three ways in which people living in poverty and at the margins were let down by the Supreme Court’s judgement. First, the court discussed, with ‘eloquent pity’, the constitutional importance given to socio-economic rights. It summed up a long passage on the importance of ‘dignity’ and holding that, ‘[t]he shift is from the welfare approach to a right based approach. As a consequence, right of everyone to adequate food no more remains based on Directive Principles of State Policy (Art 47), though the said principles remain a source of inspiration. This entitlement has turned into a constitutional fundamental right.’¹¹

 

It then goes on to find that mandating Aadhaar linkage to access these social benefits was valid. Further, it held that the privacy trade-off was permissible, as it was justified ‘as against the larger public interest.’ Paradoxically, when dealing with linking Aadhaar to the rights of children, the court found that, ‘Article 21A of the Constitution guarantees right to education and makes it a fundamental right of the children between 6 years and 14 years of age. Such a right cannot be taken away by imposing requirement of holding Aadhaar card, upon the children’ [emphasis added].

This larger public interest was also used to justify the incursion into their privacy rights. In the Aadhaar case, the Supreme Court held: ‘As against the above larger public interest, the invasion into the privacy rights of these beneficiaries is minimal. By no means can it be said that it has disproportionate effect on the right holder.’¹² The ease with which the privacy rights of the poor were sacrificed at the altar of the ‘larger public interest’ was reminiscent of the Supreme Court’s controversial judgement in the Narmada Bachao Andolan case, where the building of the mega dam was upheld in the interests of development.¹³

Second, the judgement was rife with assumptions that glossed over the realities of the lives of people living in poverty. The government submitted that the two reasons people were not able to access their welfare rights – and for upholding Aadhaar – was because of their lack of identity documents, and because their rights were being withheld because of corruption, which came from identity fraud, that is, people who were scamming the system by enrolling more than once. However, the court didn’t engage with several aspects of this. For one, the actual number of people who lacked all identification was found to be much lower than what the government claimed.¹⁴ The court didn’t engage with this issue, or with what privacy means for people living in poverty, who are often at the ‘margins of legality’.¹⁵

 

Aadhaar linkage across all welfare databases would track people in all their interactions with the state. The court found that constitutional protections could only be extended to data over which there is a ‘reasonable expectation of privacy’, which doesn’t include demographic data. This is a broad stroke – even the Aadhaar Act prohibits collections of sensitive data, such as that which is stigmatizing or which pertains to ones caste-based, religious or sexual identity. However, the court doesn’t note how this data can be inferred from mandating that the Aadhaar number be linked across all databases. As the feminist scholar, Kalyani Menon-Sen, discusses, ‘[s]urvival for the working poor depends not on a verifiable and watertight identity, but on the ability to duck under the surface of the law or slip into the cracks and crevices of the system and become invisible at short notice.’¹⁶

Finally, the court refused to engage with how corruption actually works within the welfare system. Experts on the welfare system in India demonstrated how the primary sources of leakage were not ‘identity fraud’ – people trying to get more than they are entitled to, by masquerading as someone else – which Aadhaar could conceivably cover, but ‘quantity fraud’ – where people get less than they are entitled to, or benefits are diverted, and ‘eligibility fraud’ – people who aren’t entitled to, manage to get their benefits. Eligibility for a public welfare programme depends on people demonstrating that they can meet the criteria set out by the state government, which enrolment in Aadhaar cannot address. Additionally, quantity fraud occurs by people skimming off the amount of subsidy, which can happen regardless of Aadhaar linkage. This is sustained by systematic, structural faults and upheld by local power dynamics.¹⁷ The Supreme Court judgement overplayed the ways in which money trickles out of the system because of individual scammers; and underplayed how structural reasons prevent people from accessing their benefits.

 

For example, as some petitioners extensively documented, linking Aadhaar to the pension programme has had an unprecedented impact of preventing old and extremely vulnerable people from accessing their rights.¹⁸ However, linking the payment of pensions to the Aadhaar payment system was done despite the fact that corruption of this nature wasn’t even a problem in the pension system. The incursion into individual rights was justified when it was balanced against the public interest – based on government figures related to ‘savings’ from MGNREGA and PDS. These savings were contested as petitioners pointed out that it included people who were locked out of their bank accounts and unable to access their benefits because of haphazard Aadhaar linkage.

 

The court also refused to engage with the litany of alternative, and less invasive, (which is required under the proportionality test) measures placed before it to tackle corruption within the welfare system.¹⁹ For instance, in the Public Distribution System, over recent years, states have adopted innovations like food coupons, digitization of records, doorstep delivery, SMS alerts, social audits, and toll-free helplines, which have significantly reduced the extent of corruption. However the state insisted that Aadhaar had led to significant savings of the government exchequer, despite evidence that contradicted this claim. The court dismissed this evidence as ‘disputed questions of fact’, holding that, ‘The manner in which malpractices have been committed in the past leaves us to hold that apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose.’ This demonstrates the distance from which the lives of people living in poverty are viewed.

In contrast, when striking down Rule 9 of the rules issued under the Prevention of Money Laundering Act, which mandated Aadhaar linkage for all bank accounts, the court noted the presence of alternate ‘know your customer’ methods, finding that these were sufficient and less invasive alternatives. Studies, arguments and affidavits laid before the court which pointed out how Aadhaar excluded people, and even affidavits showing starvation deaths caused by the impediments raised by mandatory Aadhaar linkage – which should be shocking in a modern, developed India – were totally ignored by the Supreme Court. These were all dismissed with a spare remark that the execution of Aadhaar was a ‘work in process’, and by relying on the government’s promises that they would do what was necessary to prevent exclusion. As Gautam Bhatia has pointed out, the promises of the government are insufficient to uphold the constitutionality of a contested law.²⁰

 

A possible reason for this approach is the continuing impact of post-1990s economic reforms, and the neo-liberalism of the 2000s. Bhuwania quotes Prashant Bhushan, a famous public interest lawyer, to substantiate how the shift in political economy since the 1990s had changed the nature of the PIL: ‘the court has in fact bought the ideology underlying the economic reforms – an ideology which venerates the virtues of the free market and undermines the role of the state in providing education, jobs, and the basic amenities of life to its citizens.’²¹ Jean Dreze notes how the Aadhaar judgement is a startling example of ‘corporate invasion of public policy, with business consultants packing government committees, drafting laws, harvesting lucrative contracts and orchestrating Aadhaar’s public relations.’²²

As more countries embrace digital innovations in governance, the role of the judiciary in safeguarding peoples’ rights – particularly those who experience conditions of marginality – becomes increasingly important. For one, these technologies can further exacerbate what they are intending to tackle, as Aadhaar arguably does. The UN Special Rapporteur on extreme poverty, in a recent report on poverty in the U.K., has warned against how the ‘digital by default’ mode adopted in its new welfare system threatens to further entrench inequality.²³ Additionally, the introduction of new technologies in governance are an important new space for corporate capture, this time of large amounts of data. If data is the new oil, then programmes such as Aadhaar are arguably the new mega power projects, albeit ones whose impact will be felt not just by those being displaced, but the entire populace. People living in poverty are being made ‘guinea pigs’ for experiments in governance and for ‘immature financial technologies’.²⁴

 

For instance, the Pradhan Mantri Jan Arogya Yojana, touted to be the world’s largest health programme, proposes to maximize coverage, but minimizes coverage to an absurd Rs 200 a head. The intention seems to be, as Dreze has discussed, to collect large amounts of data, which private companies can harvest.²⁵ The courts must be on the look out for the corporate intent hidden in such trojan horses that purport to help people who live in poverty. But for this, it will be required to engage with the lives of people living in poverty in a deeper and more substantial manner.

 

Footnotes:

1. See, for example, Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, Third World Legal Studies 4, Article 6, June 1985, pp.107-132. Available at: http://scholar.valpo. edu/twls/vol4/iss1/6

2. Justice K.S. Puttuswamy (Retd.) & Anr. v. Union of India & Ors., delivered in 2018, hereinafter ‘Aadhaar Judgement’.

3. Reetika Khera, ‘The Impact of Aadhaar in Welfare Programmes’, 2017, available at https://ssrn.com/abstract=3045235]

4. AIR 1981 SC 746.

5. Madhav Khosla, ‘Making Social Rights Conditional: Lessons from India’, International Journal of Constitutional Law 8(4), 1 October 2010, pp.739-765.

6. Balakrishnan Rajgopalan, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’, Human Rights Review 8(3), August 2007, pp. 157-186.

7. Olga Tellis v. Bombay Municipal Corporation, (1985) 3 S.C.C. 545.

8. Balakrishnan Rajgopalan, 2007, op. cit.

9. Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India. Cambridge University Press, Cambridge, UK, 2017.

10. Ibid.

11. Para 263, Aadhaar judgement, op. cit.

12. Ibid., Para 308.

13. Balakrishnan Rajgopalan, 2007, op. cit.

14. Reetika Khera, 2017, op. cit.

15. Anuj Bhuwania, 2017, op. cit.

16. Kalyani Menon-Sen, ‘Aadhaar: Wrong Number or Big Brother Calling?’, Socio-legal Review 11(2), 2015, pp. 85-108.

17. Reetika Khera, 2017, op. cit.

18. Jean Dreze, ‘Ill Fares Aadhaar’, The Indian Express, October 2018.

19. Reetika Khera, 2017, op. cit.

20. Gautam Bhatia, ‘The Aadhaar Judgment and the Constitution: Doctrinal Inconsistencies and a Constitutionalism of Convenience’, Indian Constitutional Law and Philosophy, 28 September 2018, available at https://indconlawphil.wordpress.com/2018/09/28/the-aadhaar-judgment-and-the-constitution-i-doctrinal-inconsistencies-and-a-constitutionalism-of-convenience/

21. Anuj Bhuwania, op. cit., citing an interview with Prashant Bhushan.

22. Jean Dreze, October 2018, op. cit.

23. ‘Statement on Visit to the United Kingdom by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights’, 16 December 2018, available at https://www.ohchr.org/EN/News Events/Pages/DisplayNews.aspx?News ID= 23881&LangID=E

24. Pragya Srivastava, ‘MGNREGA Workers Have Become Guinea-Pigs for Aadhaar Payments System’, Financial Express Online, 16 July 2018.

25. Jean Drèze, ‘Ayushman Bharat Trivializes India’s Quest for Universal Health Care’, The Wire, 18 September 2018.