In September 2018, while upholding the constitutional validity of the Aadhaar programme to a limited extent, the Supreme Court (SC) made two important observations. First, it held that Aadhaar could be mandated only in a limited set of circumstances, where it was necessary and proportionate to do so. In particular, mandating Aadhaar for banking and using mobile phones was categorically rejected as unconstitutional. Second, the SC warned against the use of Aadhaar for commercial surveillance, and, therefore, barred private players from accessing the Aadhaar database.
However, an ongoing case before the SC — brought to it through a “public interest litigation” — asking for the mandatory linking of Aadhaar with individuals’ social media accounts risks undermining both these crucial observations — and ironically, through the SC itself. The linking of Aadhaar with social media accounts represents an insidious form of function creep, where a digital ID originally touted as streamlining welfare delivery has now begun to colonise vast swathes of daily life — without thought of, or heed to, the consequences.
What are the justifications being advanced for such a move? In court, the Attorney-General for India apparently advocated for the move on the basis that it would help to check the spread of fake news, hate speech, and other forms of illegal content.
The underlying idea seems to be that illegal content exists on the Internet because of how it allows for anonymity. Once an individual’s actual identity was linked to their online identity, we would have a situation of perfect traceability, where illegal online content could immediately be traced to its source in the physical world.
To start with, the argument’s premise is mistaken. It is, by now, well established that the Aadhaar database contains a significant number of ghost accounts. Mandatory linking may, therefore, enable greater fake news — now with the veneer of authenticity — instead of combating it.
Furthermore, this argument misunderstands how the Internet works in general, and how social media accounts work in particular. To start with, it is extremely easy to circumvent. Indians intent on avoiding Aadhaar linking can simply create accounts by reporting themselves as non-resident.
On the other hand, a majority of ordinary, law-abiding Indians will end up providing a rich trove of personal data to social media networks. The linking of online and real identities will only facilitate and ease targeted advertising by social media networks — the very kind of commercial surveillance that the SC warned against in its Aadhaar judgment. In fact, it is important to note that even after all these years, India still does not have a data protection law, with the move towards enacting one seemingly stuck in an interminable limbo.
Second, the move appears intent on throwing the baby out with the bathwater. As in any large community, there are persecuted and marginalised voices, whose participation in the public sphere is fraught with the risk of abuse and even physical violence. For these voices, anonymity is crucial to being able to speak at all, as it provides a necessary shield. Courts all over the world have acknowledged how anonymity is an integral aspect of the right to free speech and expression — as well as, of course, an integral aspect of the right to privacy. As with any other right, there are those who can — and do — abuse its protection. But that does not — and cannot — provide a justification to withdraw the right altogether.
Both these aspects make clear that not only is the mandatory linking of Aadhaar to social media accounts a bad idea, but also, it is a complex issue fraught with risks of various kinds. This brings us to the last point. If at all such a move ought to be considered, it should be done through an open, consultative procedure, and ultimately, through legislation enacted by Parliament, the constitutionality of which can then be reviewed by a court.
The PIL route, which attempts to accomplish this through judicial fiat, is profoundly dangerous for citizens’ rights, and for democratic participation. In the past, it has led to rushed orders that have not been properly thought through — from a judicial attempt to have certain keywords “auto-blocked” from online search engines in order to combat the purchase of sex-selection kits to attempts to regulate pornography — which have ultimately had to be modified or recalled, once their unworkability becomes clear. Even in this case, the court’s offhand and casual references to the “dark web”, as reported during oral arguments, are troubling. It is to be hoped that better sense will prevail, and that this misguided PIL will be swiftly dismissed.
Gautam Bhatia is a Delhi-based advocate