Guest Post by Moiz Tundawala
After the suppression of the 1857 Mutiny and the British take over of Delhi, Mirza Ghalib was once asked by a military official whether he were Muslim or not. Ghalib is said to have quipped: “Only half Muslim; I drink wine but refrain from swine.” For me, this ripost evinces a flippant disdain for modern forms of rule which essentialize persons and groups purely based on certain attributes which are deemed definitive and prioritized over others. As far as Ghalib’s case was concerned, the idea may have been to find out based on his religious identity if at all he could pose problems for the newly established colonial regime. In later years, this policy, which African intellectual Mahmood Mamdani has recently termed ‘define and rule’, gradually became integral to governmental practices in most parts of the modern world; today, populations are ever so readily classified and enumerated based on empirically observable characteristics in order to make them amenable to effective government. The Aadhaar project of the Unique Identification Authority of India clearly falls within the gamut of such practices, marking a transition to modernity in a radical break from the past. So my reservations with it are just the same as those with any other modernity inspired programme wherein personal and collective identities are reduced to a somewhat arbitrarily determined bare essence which may have no real connection with lived experiences of fuzzy and contextually constructed identities.
Constitutionally speaking, there may be nothing wrong in such governmental classifications as long as they are reasonable enough. India’s is a modern constitution afterall. what it does prohibit however, is state discrimination against citizens based only on status grounds such as religion, race, caste, sex and place of birth. But, far from discrimination, what has Aadhaar got to do with classifications in the first place? Isnt the unique identification number being provided to all residents in India without any distinction what so ever?
That every resident is entitled to an Aadhaar card may no doubt be true, but as is the case with any governmental project identifying people based on some fixed indicia, classifications are inevitable. The UID, although apparently universal, has the effect of making a classification between persons whose biometrics are relatively stable, and those whose are not. While such a classification itself may not be constitutionally problematic, if it results in the exclusion of a large section of society from the purview of government benefits, then there is cause for worry. Even more so, when the excluded largely comprise already vulnerable and least well off populations.
It is increasingly becoming clear that the biometric indicators relied upon for the unique identification of persons such as fingerprints and iris scans do not remain permanently static across space and time, and hence cannot be treated as inalienable markers of identity. For example, millions of workers who are compelled by necessity to make greater use of their bare hands in agriculture, construction and other forms of manual labour are likely to possess a poorer quality of fingerprints for the purpose of this technology, as opposed to someone whose circumstances permit the luxury of working from a desk in an air-conditioned room all day. The same can be said of the elderly whose fingers may get worn out naturally with the passage of time. Next, persons with visual impairments and disabilities like blindness, retinopathy, glaucoma, anirida, cataract and corneal injuries may invariably have less perfect iris prints compared to the empirically average sighted person. Finally, even though documentary evidence of demographic information including name, residential address, age and gender may not have been made absolutely necessary for proper identification, the presumption never the less remains that people stick to their residences long enough for UID enrollment operators to pursue them at their convenience. The failure here is to acknowledge the possibility of migrations and frequent mobility of populations in search of work and livelihood.
So, the seemingly benign, rather beneficial Aadhaar project has the potential of indirectly discriminating against poor, laboring, elderly and disabled peoples. They would simply stand excluded from government entitlements whenever their actual particulars do not match those on record, and as more and more data from the ground suggests, there are strong chances of this happening with alarming regularity. This outcome I believe, is contrary to Article 14 of the Constitution, which guarantees to every person equality before the law and the equal protection of the laws throughout the territory of India. If the governmental objective in initiating Aadhaar is taken to be the facilitation of welfare distribution among the population, the effective classification of persons on the basis of the stability of biometrics would fall foul of even the doctrine of rational nexus, a relatively lax establishment deferential test employed by the judiciary to scrutinize the reasonableness of classifications made by the executive or legislature. Clearly, there is no rational connection here between the object sought to be achieved and the intelligible differentia for the classification: it is preposterous, nay sinister, to come up with welfare programmes which have the effect of excluding the already marginalized and least advantaged. I would venture to say that Aadhaar is antithetical to the idea of a constitution based social revolution in which, if at all, affirmative action programmes are supposed to discriminate in favour of such peoples, never against them.
Not only this. The concept of Aadhaar goes against the very spirit of an open democracy in which unbounded peoples can deliberate over and compete for access to resources and power. Pinning down personal identities with precision to certain arbitrarily determined fixed markers tantamounts to excluding those who do not readily fit the bill from participating in the game of democracy. As cultural anthropologist Christopher Boehm points out, the last few centuries have seen several sporadic but highly successful attempts to reverse the five millennia old human trend towards hierarchy in favour of equality. However, the new egalitarian governing arrangements are formed not simply from an absence of hierarchy; instead, what is noticeable is the creation of “a special type of hierarchy based on anti-hierarchical feelings” in which “the pyramid of power is turned upside down, with a politically united rank and file decisively dominating the alpha-male types.” Now the tables may have turned and the people may have taken the place of the prince, but the modern paraphernalia which states continuously use to identify, enumerate and classify their populations only means, to borrow political philosopher Partha Chatterjee’s words, that “we are all princely impostors until we can prove otherwise.”
I look at Aadhaar not as an aberration in an otherwise equality and democracy loving state, but rather as an extreme manifestation of the urge to control and discipline people by defining what they are as opposed to engaging with who they are. It is plane convenient to strip persons to some bare essences in order to govern over them better, notwithstanding the lack of correspondence with a much more complicated reality. If this, that is effective governability, be the actual goal of the project, then there can be nothing unconstitutional about it. Aadhaar would definitely serve the cause well enough. However, here I am talking about the Constitution of India as a nation-state, not that of India as a civilization. It is only nationalism which, as George Orwell would have it, has the “habbit of assuming that human beings can be classified like insects … that whole blocks of people can be confidently labeled good or bad.” To be fair, Aadhaar is not into this business of labeling chunks of people as good or bad, it merely grants to every Indian resident a unique identification number. Never the less, the metrics used and the concomitant essentialization of identities smacks of the same nationalist mentality. The person with stable biometrics is the new good for governmental purposes. Everyone else can forget about the Preambular promise of ‘Justice, social, economic and political’.
When the matter regarding the constitutionality of Aadhaar comes up for adjudication, the Supreme Court can sure proceed on this nationalist logic and uphold the programme in its entirety. In fact, it could even iron out some creases in the existing plan so that the project becomes more authentically national. It is strange that all residents, which may as well include foreign nationals, are being provided an Aadhaar card. India must be meant only for Indians isn’t it? I would not be surprised if this aspect of Aadhaar is struck down, and the project is restricted to Indian citizens alone, especially with the rightward shift of the polity in recent times.
But if the Court is mindful of civilizational sensitivities, I believe it has no option but to completely denounce the idea of Aadhaar. Today, the UIDAI is invading the privacy of individuals without the authority of law. This is sufficient grounds to declare it unconstitutional. But tomorrow, the government may succeed in obtaining Parliamentary endorsement to a legal framework for the programme. Then the privacy challenge might not survive; the Supreme Court does not have a consistently strong jurisprudence on substantive due process as of now. What the Court can do under the circumstances, is to resort to the equality clause in the Constitution and contextualize it within the idea of India as a civilization which has never envisaged a rigid demarcation between the self and other. So just as Ghalib’s Muslimness did not exhaust his identity, my Indianness does not exhaust mine, and neither should the presence or absence of some markers on the body of my person exclusively determine the entitlements I can legitimately claim from the state. It is for the Court to see through the façade of an innocuous looking national identity project, or else in the otherwise, the implications for our civilizational commitment to an equality tolerant of diversity will be dire. Troubling is the thought of the coming into being of two more permanent classes of haves and have nots in the near future, merely because the state could not bring its policies in line with the pluriverse of bodies and persons under its government.
Christopher Boehm, Hierarchy in the Forest: The Evolution of Egalitarian Behaviour 2001.
Granville Austin, The Indian Constitution: Cornerstone of a Nation 1966.
Mahmood Mamdani, Define and Rule: Native as Political 2012.
Partha Chatterjee, A princely Impostor?: The Strange and Universal History of the Kumar of Bhawal 2002.
Also See the Kafila Archive of articles on the UID scheme