Fwd: [rethink-aadhaar] Rethink Aadhaar - Update from May 2023
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From: Rethink Aadhaar #No2UID <con...@rethinkaadhaar.in>
Date: Sun, 28 May 2023 at 17:46
Subject: [rethink-aadhaar] Rethink Aadhaar - Update from May 2023
To: <rethink...@lists.riseup.net>
May 2023 update
Dear friends,
A few months ago we wrote to you about the tragic death of a child named Arjun Hembram, from Jajpur district, in Odisha, who died due to malnourishment.
In April 2023, Mantu Das, a child rights activist associated with the Right to Food Campaign, filed a case in the High Court of Odisha, with details of 11 children who had died across the state. His petition pointed out that “in Ghatisahi village only 160, out of 309 villagers have Aadhar cards and therefore are unable to get the monthly quotas from the public distribution system.”
On Thursday, 18th May, while hearing the case (Mantu Das v Union of India W.P. (Civil) No. 12966 of 2023) the Chief Justice of the High Court of Odisha admonished the Government of Odisha and the Union government for their inaction, noting that the large number of children who suffered from Severe and Acute Malnourishment projected by government representations was extremely alarming and should be dealt with by putting “systems.. in place that incentivise ‘inclusion’ rather than ‘exclusion’”. Rather than doing this, the Court noted, the government had erected systemic barriers that prevented people – many from tribal communities and the poorest sections of society – from accessing life-saving “benefits” from the State. These barriers include requirements for Aadhaar and other types of documentation and a programme design that only targets children below 6 years, assuming that older children would be in the school system, despite ground realities being otherwise.
The Court also reiterated how statistics can serve to obfuscate more than they reveal, saying:
“This, therefore, points to a larger problem of the coverage attempted to be achieved by the NFSA. This also shows that the absence of pending ‘applications’ for coverage under the PDS in a particular district may not explain how many people there are in actual need of such rations and supplements for their children, who may be either in the SAM or MAM categories. What compounds this issue further is that all the statistics are projected on the basis of 2011 census and not on the actual figures on the ground as of 2023. Therefore, the number of persons ‘excluded’ from the coverage of all the schemes could be much larger than what is projected in these affidavits. This is a matter for reflection both by the Government of India and the State of Odisha when they sit down to address the issue of gaps in the implementation of the schemes.”
Crucially, the High Court also reiterated that the State cannot permit formal requirements of documentation, such as Aadhaar to act as barriers to essential services.
“The Court impressed upon Mr. Pandey that at the level of Government of India, it has to be ensured that the coverage under the schemes is increased progressively year after year and that can only happen if there are systems put in place that incentivise ‘inclusion’ rather than ‘exclusion’. For e.g., the failure to possess an Aadhaar Card or a mobile phone or a proper ‘identity’ paper of a particular kind can result in a child or a family being denied the basic support in terms of food and supplements which are so essential for basic survival. The absence of these documents cannot become obstacles to availing the benefits under the schemes.
The Odisha government pointed out that it did not insist on Aadhaar for inclusion in the public distribution system, which is a right under the 2013 National Food Security Act.
It must be noted that the lack of insistence for Aadhaar is the result of sustained advocacy and campaigning by peoples’ movements on the ground. In 2019, organisations working in Odisha had raised an alarm when reports indicated that almost 19 lakh people had been (unfairly and arbitrarily) excluded from the public distribution system, ostensibly because their ration cards had not been linked with their Aadhaar numbers. In a representation submitted to the Odisha State Food Commission, the Odisha Khadya Adhikar Abhijan called on the State to publicly disclose the names of people excluded from PDS; to release peoples’ food entitlements, offer people alternatives to Aadhaar to “authenticate” their identities, and above all, to respect the Supreme Court’s observations in the Aadhaar judgement, which had said that no persons were to be denied their benefits because of lack of Aadhaar. This issue - of the reach of the PDS, and the disastrous impact of imposing a requirement of Aadhaar – is also being litigated before the High Court of Odisha in a pending case, Prafulla Samantara Vs State of Orissa and others, WP(C) No. 16579 of 2020.
The Mantu Das case reiterates why we must demand that the State - and all of us - “rethink” digital ID mandates like Aadhaar. Apart from the harms that it causes due to the barriers it imposes, it also changes the focus of social protection to targeting and verification, over prioritising inclusion through a reliable census. As the Court noted, the statistics projected by the government on the people who may be left out of the PDS may not be accurate as “all the statistics are projected on the basis of (the) 2011 census and not on the actual figures on the ground as of 2023.”
You can read the judgement here and watch the proceedings in Court on Youtube here. You can also read a thread here.
Good Governance Rules introduce Bad Ideas
Despite the constant deluge of Aadhaar-based failures, exclusions and fraud, the government is relentlessly trying to expand the number of entities that have access to Aadhaar authentication. The latest attempt is a circular opening the gates to private entities, through a proposed amendment to the so-called “Good Governance Rules”. This would be a clear violation of the Supreme Court’s judgement in the Aadhaar case, as we pointed out in a joint representation submitted to the Ministry.
The Draft Rules permit private entities to apply for Aadhaar authentication - despite the Supreme Court’s Aadhaar Judgement (2019 1 SCC 1) expressly limiting the use of Aadhaar authentication, for a limited set of purposes, and only by the government. The Supreme Court also struck down S. 57 of the Aadhaar Act (which permitted private entities to use Aadhaar authentication) in its entirety as unconstitutional for violating individuals’ right to privacy and enabling the commercial exploitation of their personal data. The Draft Rules violate this by permitting private entities to use Aadhaar authentication, in flagrant violation of the Court’s judgement.
Despite stating that Aadhaar is “Voluntary” the Authority has no power or functional grievance redress system to check if this is being violated
The Comptroller and Auditor General of India’s Report (No. 24 of 2021) pointed out serious flaws in the Aadhaar system which have not been addressed. Expanding Aadhaar to more entities without fixing this cannot be permitted.
The procedure laid out in Clauses 4 and 5 for submitting and examining proposals do not sufficiently protect individuals’ rights.
The Draft Rules can proliferate Aadhaar-related fraud by expanding the number of entities that have access to Aadhaar data
Overall, the expansion of Aadhaar is a serious decision implicating a range of rights that cannot be done through the executive’s rule-making powers. We must note that instead of legislation that undergoes public and parliamentary scrutiny, the government has chosen to make rules under the act that undergo no such democratic scrutiny. You can read a summary of our representation here.
Aadhaar for children - again?
Several news reports have emerged stating that the Karnataka government through the Department of Education has made Aadhaar a requirement for school going children, in violation of the judgement of the Constitution bench Supreme Court’s Aadhaar Judgement (2019 1 SCC 1). At para 331 the majority judgment had held the following:
331. After considering the matter in depth and having regard to the discussion aforesaid, we hold as under:
(a) For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian.
(b) On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the right to exit from Aadhaar, if they so choose.
(c) Insofar as the school admissions of children are concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy. Further, having regard to the fact that a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’ as well.
(d) Benefits to children between 6 to 14 years under Sarva Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
(e) For availing the benefits of other welfare schemes which are covered by Section 7 of the Aadhaar Act, though enrolment number can be insisted, it would be subject to the consent of the parents, as mentioned in (a) above.
(f) We also clarify that no child shall be denied benefit of any of these schemes if, for some reasons, she is not able to produce the Aadhaar number and the benefit shall be given by verifying the identity on the basis of any other documents. We may record that a statement to this effect was also made by Mr. K.K. Venugopal, learned Attorney General for India, at the Bar.
The Hindu has reported that the Department of Education has taken this decision so that students can track students and drop out. “Officials of the department said: “Seeding Aadhaar number with the students’ SATS number will provide accountability and it is easy to monitor out-of-school children and their activities in a proper way.”” The Morning Context reported that parents are concerned about their children’s privacy with one parent quoted to have said - I don’t want my child’s academic data to be available on a public portal, along with personal identifiable information,” “It has all the details like the name, age and the school the child attends, along with other academic information. Why would I want to put it out there? I don’t want to. It’s child endangerment and a disaster in the making.”
We have not been able to locate the circular dated 17.02.2023 on any official website. However, a blog has posted a jpeg image of a circular dated 17.02.2023 issued by the Department of Public Instruction, which we have translated below:
Government of Karnataka
Department of Public Instruction, Commissioner’s Office,
Nrupatunga Road, Bengaluru – 560 001
_____________________________________________________________________
File No.: DPI-CPI0SATS(SS-)/2/2022-SATS Date: 17.02.2023
CIRCULAR
Sub: Reg. Confirmation of Students’ Aadhar Number in SATS Software
Ref: 1. The Letter No. R-11013/22/2020-ROB/VOL-IX/3485-3488 of Shri. Anoop Kumar, Deputy Director General, Ministry of Electronics and Information Technology & Unique Identification Authority of India (UIDAI), Regional Office, Bengaluru, dated 02.11.2022.
2. The Letter No. ACS-DC/SSP-57 of Additional Chief Secretary and Development Commissioner, dated 09.06.2022
***********
With regard to the aforementioned subject and according to Reference 1 & 2, various departments (Backward Classes Welfare Department, Minority Welfare Department, and Labour Welfare Department) under various programs have been disbursing student scholarships through State Scholarship Portal. In order to distribute scholarships for students, admission to various entrance examinations, and to obtain other government (DBT) services, it is necessary to update the names of students as in Aadhar into SATS software.
According to Section 7 of Aadhar Act, 2016, it is mandatory to confirm Aadhar number in order to avail government services. Therefore, it is necessary to update and evaluate the names of students as in Aadhar into the SATS software in all the Government and Government aided Schools, according to specific guidelines.
Further, according to rules mentioned in setion 4(4) (b) (ii) of Central Aadhar Act of 2016, it is instructed to obtain consent from students for Aadhar validation. Therefore, it is instructed to obtain Consent Letters from private school students before taking the necessary actions.
(The Consent Form format has been uploaded in the SATS software).
Commissioner,
Department of Public Instruction
Bengaluru
To-,
1. The Deputy Directors (Administration) of all the districts in the state, for necessary action.
2. All Block Education Officers (BEOs) through Deputy Director, for necessary action.
If the above mentioned circular is the official version, it appears that the circular is incorrect in that Section 7 of the Aadhaar Act does not make it “mandatory to confirm Aadhar number in order to avail government services”. It only gives the government the power to “require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment. And further that “Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service.” In any case, the circular in this form does not apply to unaided schools that are privately run.
Not only does the pressure and coercion on parents to provide their children’s Aadhaar numbers violate the Supreme Court’s judgement, it also jeopardises children’s privacy and safety. We urge the newly elected government of Karnataka to immediately withdraw this circular, and pass strict directions to ensure that no child is denied access to education for want of Aadhaar.
Aadhaar for lawyers
The Bar Council of Delhi issued a circular on the 13th of April 2023, requiring all advocates to apply afresh, with “attested copies” of their Aadhaar cards. If you are a Delhi based lawyer, please join us to protest this by signing our Petition, which we plan to send to the Bar Council of Delhi on May 30, 2023, asking it to withdraw the Aadhaar requirement. If you know lawyers registered in Delhi, please do encourage them to sign up!
What’s happening internationally
The High Court of Uganda is currently hearing a case filed by civil society organisations Unwanted Witness, ISER (Initiative for Social and Economic Rights) and Health Equity and Policy Initiative challenging the Ugandan state’s policy which makes the country’s national digital ID, Ndaga Muntu, a mandatory precondition to access public services. In a recent order, the Court permitted Professor Philip Alston, the former Special Rapporteur on extreme poverty and human rights, to file an amicus curiae submission. Professor Alston’s 32-page submission lists all the rights imperilled by digital ID projects such as Nddaga Muntu, and is worth reading in full.
Zindabad.
Rethink Aadhaar
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