Raeesa Begum, a 55-year-old resident of Rajapur village on the outskirts of Ghaziabad, heads a family of five, all of whom are entitled to ration under the Public Distribution System. Neither she nor her family members have received their quota for September.
Because the PDS shop her family is assigned to has remained shut since 1 September.
The proprietor of the distribution outlet has been absconding after an FIR was filed against him for allegedly being involved in a scam that was diverting food grains into the open market. Two lakh tonnes of grains were pilfered using the Aadhaar-enabled ePOS machines by using thumb impressions of persons other than the beneficiaries.
Justice 35 Kilometres Away?
On Wednesday, about 35 kilometres away from Begum’s house, a five-judge bench of the Supreme Court held the Aadhaar project to be constitutionally valid. The Constitution Bench, headed by Chief Justice of India Dipak Misra, upheld the mandatory nature of Aadhaar for those availing welfare schemes such as subsidised food grains under the PDS.
The judgment said that Aadhaar had a “legitimate state aim”, that of ensuring targeted deliveries of subsidies to deserving beneficiaries. Standing inside the courtroom, I was reminded of my conversation with a whistleblower in Uttar Pradesh two weeks ago. He was fired from his job at a district ration office earlier in the year, and once the scam broke, he was slapped with an FIR.
The whistleblower explained the modus operandi by which crores of residents of the state were denied their share of essential entitlement because those in charge of administering the PDS were the ones who had allegedly rigged the ePOS machines to divert the grains.
He narrated to me that his immediate superiors in the district ration office would provide him with their login ID and password to access the ration beneficiary database. Once inside, the whistleblower and others like him were allegedly ordered to replace the Aadhaar number next to the name of a beneficiary with his own Aadhaar number, press his own thumb on the ePOS machine and generate the authentication slip. Since the name of the beneficiary in the database would remain unchanged, the slip would print the beneficiary’s name and not the whistleblower’s.
The scam is a ringing illustration of deserving beneficiaries denied benefits and excluded from their rightful share despite having their ration linked with Aadhaar.
The Issue with ‘Section 7’
Those litigating against the Aadhaar project were hoping for the bench to read down Section 7 of the Aadhaar Act. The Section makes access to welfare schemes contingent on the production of Aadhaar followed by a successful biometric authentication.
Moments after I squeezed my way into a packed courtroom 1 of the Supreme Court, Justice Sikri began reading the majority judgment on behalf of concurring judges, Chief Justice Misra and Justice AM Khanwilkar. In reading out the judgment he had authored, the majority upheld the constitutional validity of Section 7 of the Aadhaar Act.
The judgment, recognising welfare schemes as having attained the status of fundamental rights, chooses to see the Aadhaar Act as a “beneficial legislation”. In doing so, it prioritises the collective goal of the Aadhaar project over individual rights. The majority sidesteps the issue of hardships perpetrated by repeated instances of exclusion of the poor from welfare due to the lack of Aadhaar or failure in authentication.
In several well documented instances of exclusion that petitioners have submitted before the court, citizens with Aadhaar have been denied ration because their thumb impression could not be read or matched with the fingerprint in UIDAI’s biometric records.
UIDAI, the Aadhaar issuing body, submitted before the Supreme Court during the hearings that Aadhaar-based authentications have not been 100 percent successful. UIDAI, in answering questions posed before it by petitioners in the case, presented national level statistics of authentication failures.
While thumb prints have failed 6 percent of the times, iris authentication has failure rate of 8.54 percent. This means that there were 3.69 crore failed fingerprint-based authentications and 9.27 lakh failed iris scans nationally.
Raeesa Begum and her family are one such example.
She is among the 3.69 crore whose thumb failed to get authenticated.
The majority judgment, however, ruled: “When it is serving a much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.” The cost of Begum’s authentication failure is, perhaps, difficult to ascertain as a statistic.
Economist Ritika Khera, responding to the judgment, said she was “disappointed” with the verdict. “The judges who have signed the majority opinion have believed the government’s false assurances that nobody will be denied their entitlements due to Aadhaar,” Khera said.
A few minutes after Begum had invited me into her living room on 5 September, a dozen other residents of the neighbourhood joined us. They all had the same complaint – denial of ration by the shop owners. Some said they had not got their share for over six months while another said she was given only half of what she is entitled to.
A few doors down from her house, a 61-year-old resident who wished not to be identified said, “We have Aadhaar but we are not receiving the benefits of Aadhaar.”
A Curious Irony
The majority judgment interprets the project as having a “legitimate aim”. It describes the Aaadhar card as an “empowering document” and notes the Attorney General’s submission that no one will be denied subsidies because of the lack of Aadhaar.
However, a curious irony has emerged from the judgment and how it has dealt with the six-year-long Aadhaar litigation that started with a Public Interest Litigation (PIL) filed in 2012 by 92-year-old Justice Puttaswamy, a retired judge of the Karnataka High Court.
The petitioners against the Aadhaar project had brought the issue before the Supreme Court because the poor were systematically being denied welfare and benefits. However, the majority judgment upheld the validity of the project upon the premise that it benefits the poor and the marginalised.
Be it the Uttar Pradesh ration scam or the 11-year-old girl in Jharkhand’s Simdega district who died of starvation in October 2017 because her family’s ration card was not linked to Aadhaar, it is the poor who have repeatedly suffered.
The judgment makes it clear that those who do not require welfare assistance from the state in the form of subsidies would not need to mandatorily produce Aadhaar for other services such as banks and mobiles.
Minutes after the verdict, I spoke with legal scholar Usha Ramanathan who has been at the forefront of the civil campaign against the Aadhaar project. “The minority judgment interprets the case as one of people’s interest and acknowledges the idea that the State is the one with power and people are the ones on whom this power will be exercised,” she said.
The minority judgment, pronounced by Justice DY CHandrachud, came right after the majority judgment. Terming the Aadhaar Act as “a fraud upon the Constitution,” Chandrachur wrote, “Aadhaar has failed to account for and remedy the serious issues of exclusion.”
The question with which I exited the hallowed grounds of the Supreme Court was “how will the judgment help in getting Raeesa Begum and her family their share of ration ?”
It, perhaps, won’t.