Abstract

This article seeks to go beyond the binary of elite concerns over privacy versus subaltern desires for recognition to understand the huge Indian biometric project, Aadhaar. It offers a prehistory of Aadhaar, framed not in terms of rights and wrongs, important as they are, but as the most recent project in the shaping of modern social and political power through the technologically mediated intersection of the law and the body. Key moments of technopolitical reduction of the physical body—fingerprinting, DNA tests, brain scans, polygraphs, and truth serums—become turning points in a process that have joined personal identity with evidentiary truth to overcome centuries of judicial skepticism. Due to its combined technopolitical and biological foundations, the new national database commands a high degree of social and political confidence as reflected in the unplanned and unforeseen expansion of Aadhaar. In this emergent database society, intersections of law, body, and technoscience engender new human networks: temporary alliances among material forces, inanimate techniques, discourses, norms, and institutions, organized around the technologically mediated body. This article proposes in conclusion that, as a result of these developments, we are likely to see the generation of new and unverifiable conceptions of what we mean by and how we represent the ultimate human network, “society.”

Beyond Rights and Recognition

The long-running debate over Aadhaar, the Indian government’s effort to provide a unique identification number for all 1.3 billion residents of the country, shows little sign of letting up. A recent article in Caravan magazine showed in considerable detail how this enormous project “leaks” at multiple levels, from weaknesses in the technical design of the data set to the illicit appropriation of data by private companies staffed by former employees of the Unique Identification Authority of India, or UIDAI (Thaker 2018). The focus of the Caravan article, expanding on critiques dating back to the initial announcement of the project in 2011, joined concerns over the infringement of personal privacy with the monetization of personal data without due consent. Quoting the first head of UIDAI, Nandan Nilekani, billionaire cofounder of the huge Indian software company Infosys, the article reminds readers of the enormous financial benefits that could accrue from commercializing a data set the size of India’s population: “Data has become the new oil.” Like other like-minded commentaries, the Caravan article frames the issues around Aadhaar in relation to the dilution of rights enjoyed by citizens living in a liberal state (Dixon 2017; Goswami 2018, Sinha et al. 2016).

Aadhaar was originally conceived as a technological supplement to state welfare entitlements directed at the most vulnerable members of Indian society: a novel form of biopolitics (Rajadhyaksha 2013; Nair 2018). Responding in the first instance to the well-known problem of public and private middlemen siphoning off welfare support intended for India’s poor, Aadhaar was intended to provide a technologically sophisticated and low-cost means of reducing financial leakage by permitting a direct connection between the state and the most marginal members of Indian society. In its simplest incarnation, Aadhaar would have a dual role: it would permit the unambiguous identification of those registered in their system using biometric scans of retinas and fingerprints and, at the same time, would enable government databases to communicate with each other, ensuring that state funds would be delivered directly and only to those eligible and needy (Prashanth 2013). With time, however, these laudable biopolitical goals were supplemented by a geopolitical one (Krishnaswamy 2013). The right-wing Bharatiya Janata Party that took over the Indian government in 2014 sought to revise the Aadhaar project to address a very different problem that has roiled independent India since its creation: the state’s desire to distinguish unambiguously citizens from residents (Jayal 2013). Even as this proposed revision of the Aadhaar mandate is under judicial review by the Supreme Court of India, a series of administrative rulings have been issued by the government that require Indians to link Aadhaar numbers to their mobile phone numbers, bank accounts, cooking gas connections, passports, and tax information, effectively converting the need to enroll in the Aadhaar system from a voluntary decision to a required one.

It is easy to see privacy and governance as marking the limits of the Aadhaar debate. Yet, notwithstanding the important and serious concerns of middle-class privacy advocates and civil liberties activists, over 1 billion Indians have signed up for Aadhaar; numerous accounts confirm that the poor and technologically less endowed are particularly enthusiastic about becoming legible to the government through this digital prosthetic (Banerjee 2017; Bhatia and Bhabha 2017; Rohit 2017; St Hill 2017). The rush to enroll in Aadhaar has produced a parallel but altogether different set of concerns, ranging from the infrastructural to the personal: the habitual breakdown of the scanning device, loss of data from electricity outages, unavailability of Internet access and government servers, the production of data doubles, unspecified technical errors, some women’s reluctance to look directly into the camera, problems with enrolling manual laborers with faint or erased fingerprints, older people suffering from eye ailments whose retinas cannot be scanned, and social and family structures that do not fit the Aadhaar template. The outcomes of these failings can be expensive, tragic, and even life threatening (Kelkar, Nathan, and Revathi 2014). Anthropologist Ursula Rao’s work in particular shows the human costs of being excluded from Aadhaar and the difficulties faced by socially marginal individuals and families in accessing their legal entitlements (Rao 2013; Rao and Greenleaf 2013). These starkly contrasting concerns—loss of privacy versus the costs of enrollment—highlight the class divide that separates the anxieties of middle-class citizens and civil society from the desires and problems faced by the informal sector, working class, homeless, and migrant labor.

Notwithstanding these failings, Aadhaar’s embodiment of technological virtuosity in the form of advanced biometrics has become the latest marker of postcolonial modernity, while its value as a universally accepted means of identification extends beyond welfare and entitlements. It has now become a ubiquitous reference in commercial and popular culture, extending to arenas once considered distant from digital governance. Issues seen as controversial elsewhere have become normalized with little debate, notably, the option of choosing between one of three genders in the application form. Popular matrimonial online companies (Shaadi.com, LoveVivah, etc.) now require an Aadhaar number to enroll on their sites, to weed out “stalkers, serial daters, and married men” who seek to use these sites for casual dating (rather than genuine offers of marriage) by misrepresenting themselves in one way or another (Raj 2017). The inclusion of an Aadhaar number in the applicant’s personal profile is assumed to overcome the problem of false representation, although it is obvious that this addition can hardly prevent abuse, as these new requirements imply. Aadhaar appears to have morphed from being a unique means of fixing personal identity in state eyes to becoming a proxy for establishing genuine intent and purpose: a technologically underwritten means of social trust.

These unintended extensions of Aadhaar’s reach and popularity, and the speed of its uptake across a huge swathe of the Indian population, aided by government imperatives, hint that that this biometric means of personal identification has become much more than a massive project of technological leapfrogging or postcolonial biopolitics via a new technological medium. While the debate over civil liberties versus corporate malfeasance and state overreach has dominated public discussion, it is only one dimension of Aadhaar discourse. Acknowledging the limits of this framing allows us to appreciate that privacy is a discursive concern of civil society and a liberal middle class, even as the costs of misuse or loss of personal information are universal, nontrivial, and potentially grave. At the same time, the unforeseen expansion of Aadhaar’s potential uses and the acute desire of the poor and marginal to become legible show that this classed and legal reading is far from adequate to understand Aadhaar’s contemporary and future significance.

This article seeks to open up the Aadhaar discourse beyond the binary of elite concerns over privacy versus subaltern desires for recognition. It offers a prehistory of Aadhaar, framed not in terms of rights and wrongs, important as they are, but as the most recent project of the transformation of the body and its constituent parts in the shaping of modern social and political power. Discursively following the fixing of personal identity through technological mediation traces the vector of a social probe whose purpose is to uncover hidden intent and establish individual veracity, a project that dates back to the colonial courts (Nair 2018). Critical moments of technopolitical reduction of the corporeal body—fingerprinting, DNA tests, brain scans, polygraphs, and truth serums—become turning points in a statist fantasy of including all its constituents within an ever more universal database whose ultimate purpose is determining unequivocal truth. Due to its combined technopolitical and biological foundations, this universal database, even if incomplete, commands a high degree of social and political confidence as reflected in the unplanned and unforeseen expansion of Aadhaar.

This article explores the origins of that confidence, tracing a genealogy of key intersections of technology, body, and law through colonial courts, police labs, district courts, and Supreme Court judgments, before arriving at Aadhaar. Aadhaar, in this view, is not a new project. It can be described as an assemblage comprising body fragments joined with social and institutional relations, overlaid with discourses of culture and rights, constituting a new human network whose topography, structure, and rules are still in the process of being fixed. What Aadhaar represents, however, is something else: the extension into the social realm of the state’s trust in the body (and corresponding mistrust in the person) as the ultimate measure of truth.

Colonial Dilemmas: Native Bodies, Identity, Truth

A convenient place to begin this discussion is the account of the famous prince of Bhawal written up by Partha Chatterjee as A Princely Imposter? (2002). To briefly summarize, in late 1920 or early 1921 a sannyasi (wandering mendicant) appeared on a riverbank in Dhaka, now the capital of Bangladesh. Local residents found themselves puzzled by the remarkable physical similarity of this impoverished mendicant and Ramendra Narayan Roy, the kumar (prince) of Bhawal, a large landed estate near Dhaka. What confounded this identification was that Roy had contracted syphilis in 1909 and, following a brief illness, died in Darjeeling, a hill station many hundreds of kilometers from Bhawal. Death rites were carried out and the prince had been cremated there, far from his family and estate. Nevertheless, Dhaka residents who saw and met the mysterious sannyasi a decade later were confident that he was in fact none other than the prince, alive and well.

The physical resemblance of the prince and the mendicant in local eyes was soon supported by additional evidence. The sannyasi had such an extensive knowledge of the Roy family, its history, and the estate that it was difficult to understand how anyone but the genuine prince could have known these things. The Roy family and the government would disagree with riverbank opinion and claim the sannyasi was nothing but an imposter. Not surprisingly, given that the Bhawal estate was an extremely valuable inheritance, this case of contested identity would go to court. Over two decades of litigation later, the case arrived at the Privy Council in London, colonial India’s highest court of appeal. After considerable deliberation, the Privy Council would accept the sannyasi’s claim that he was in fact Ramendra Narayan Roy and legal heir to the Bhawal estate. Two days after the judgment was communicated to Calcutta, in 1946, the sannyasi/kumar died of a heart attack.

On numerous occasions as the case wended its long way through the courts, physical evidence was introduced to establish the sannyasi’s bona fides. These claims included the lightness of his skin, a scar on his left ankle, the color of his eyes, and marks on his body that appeared to be healed lesions caused by syphilis. While these factors were given some importance, they were not conclusive in the Privy Council’s judgment. The council’s final judgment rested on joining the nature of evidence with the interests of the witness or plaintiff in question. “What reason would person X have to lie?” became a more telling point in the establishment of truth claims than physical evidence offered in the plaintiff’s favor. In other words, to settle the vexed case of the contested identity of the prince of Bhawal, corporeal evidence was displaced by the interrogation of interests: what this person would gain by lying/telling the truth. The interpretation of imputed interests trumped somatic proof of physical identity, no matter how compelling the latter. This systematic displacement points to a perennial problem for colonial governance, namely, the assumption of the inherently untrustworthy “native” (Bhabha 1994).

The problem of natives fabricating identities of convenience, as the historian Radhika Singha has shown, had long plagued both the East India Company and the colonial state. Singha documents numerous cases of “criminal tribes” passing themselves off as high castes, of Brahmins claiming they were agricultural workers, “nonmartial” communities seeking admission to the Indian Army, and peasants being described to plantation overseers as indigenous tribal populations (Singha 2000). Further, it was widely admitted that colonial officials had great difficulty in distinguishing one Indian from another. Herbert Hope Risley, colonial ethnographer and editor of the multivolume compendium The People of India, would explain this problem in apparently scientific terms. He would authoritatively pronounce that the “range of variation” in Indian faces was “exceedingly small” (Singha 2000), apparently explaining why even the well-meaning European would be naturally confused. It could be imagined that photography, when it first arrived on the colonial scene, might have resolved this problem, but it too failed (Pinney 1998). Contemporary accounts report that even “natives” were apparently unable to distinguish one Indian face from another in early photographs.

If telling natives apart was difficult enough, even for natives, the problem was compounded in the courtroom, where the alleged habits of colonial mendacity made testimony under oath from both witnesses and the accused always less persuasive than it might have been. The problem for colonial governance exceeded mere misrecognition or the inability to relate to new technologies of representation such as photography. In the colony, personal identity and official access to the truth were always jointly imbricated. Establishing the true identity of subjects while also parsing their speech to extract probatory evidence could not be separated in a colonial judicial system that began from an essential and irrevocable distance between native and European (Mehta 1999). Hence, it comes as no surprise to find Francis Galton, famous statistician and eugenicist, articulating a typically colonial solution (and language) when he proposed that “[Fingerprinting] would be of continual good service in our tropical settlement, where the swarms of dark and yellow-skinned races . . . are grossly addicted to [im]personation and other varieties of fraudulent practice” (qtd. in Singha 2000: 192).

Before technologically mediated forms of identification became commonplace, identification in the colonial courts had relied on personal memory (“I know this and can remember that, hence it is me”) and social recognition (“I can vouch for the identity of this person”), modes of oral evidence that struggled to overcome the prevailing representation of the native as an incorrigible liar (Chatterjee 2002). Change came in the form of new forensic techniques aimed at making the body directly legible, effectively bypassing the dissembling native mind (Anderson 2004).

The native body had been in this position before. Back in the day of John Company, as indeed in contemporary Europe, Indians had often been tattooed and branded after being convicted of criminal offences as a way of preventing them from escaping their felonious pasts (Ginzburg and Davin 1980). A common practice among the police was to examine the backs of alleged criminals to see if marks of a lash were visible. If there were, it would prove that these were repeat offenders (Singha 2000).

Technological Mediations of the Judicial Body

If brands, tattoos, and lash marks were externally imposed proof of prior criminal behavior, from the nineteenth century onward scientists began searching for physical signs of criminality from the “inside out.” The starting points for the body as proof of identity were anthropometric techniques such as phrenology (Cole 2001). Measuring and looking for telltale signs on the human skull, it was believed, could tell an expert whether a subject was naturally predisposed to crime or other antisocial behaviors (Wagner 2010). The Italian Cesare Lambroso, founder of so-called positivist criminology, like many others of his time, believed that there was such a person as the criminal type. These were humans who had an inherent proclivity for criminal behavior, the signs of which could be observed and measured, particularly by the bumps on their heads.

French criminologists, including Alphonse Bertillon, had been collecting reams of anthropometric data on convicted criminals with the intention of creating a universal register of criminals but struggled to make their system functional for everyday police work (Sengoopta 2003). In the 1860s, the colonial magistrate William Herschel became suspicious at the number of Indians over the age of one hundred who were collecting government pensions and began to collect pensioner fingerprints as a way of cutting down on fraud. It worked well, but for all his efforts to popularize the practice, fingerprinting never really caught on during his term of service.

It was only in the late nineteenth century that Indian police officer (and later Scotland Yard official) Edward Henry, with the help of his Indian colleagues, established an effective system for using fingerprints to establish identity (Breckenridge 2014). If Edward Henry’s prestige and standing took the fingerprint from imperial Calcutta to metropolitan London, the person most responsible for making the system functional in the first place was Henry’s assistant, Aziz-ul-Haq, a graduate of Presidency College, along with his fellow native policeman and colleague H. C. Bose. What was key to the successful “digitization” of personal identity, according to Chandok Sengoopta (2003), was simplifying and speeding up the process of identification. What made the Indian system work—and where the French had been less successful—were logistical innovations that combined consistency in the recording of information with ease of retrieval. The Bengal police successfully developed an infrastructure of identification that anyone could learn to use, producing a database comprised of individual records that could be stored safely and permitted easy retrieval of information.

Fingerprinting allowed confidence that impersonation was next to impossible, that individuals could not disguise their criminal pasts, and that accurate identification of persons would not be affected by the passage of time. As the case of the Kumar of Bhawal shows, however, what fingerprinting could not do was establish the identity of a person not already in the fingerprint registry. For fingerprinting to be used to identify any member of Indian society, what was first required was a database that included all members of society, criminals and noncriminals, Europeans and natives alike. While the colonial judicial system drew the line at the prospect of interracial mixing, even in a registry, the biopolitical fantasy of a national database that includes every person, resident or citizen, has never gone away, as today’s debates over Aadhaar’s reach and purpose show only too clearly.

Long-standing colonial suspicions over the true identity of the native would be assuaged only when that body was irrevocably marked or technologically reduced to a more compliant form. Tattoos, lashes, branding, head bumps, and fingerprints became “bio-synecdochal” devices for establishing permanent identities. The now-familiar idea that technologically mediated bodies can establish both identity and truth originated with the dilemmas of colonial governance but did not end there. Over the next century, identification techniques advanced through fragmentation and capitalization. New body organs would be pressed into service to confirm personal identities, and the process of authentication would become increasingly technologized. In the late 1980s, DNA fingerprinting would become the latest development in the conjoining of identity and evidence (Press Trust of India 1990). While the technique appeared to be a definitive means of identifying a person, in the courtroom it also became a means of establishing unimpeachable judicial truth.

DNA Fingerprinting: Joining Identity and Truth

The first Indian case using DNA evidence came before the courts in Kerala in 1989 (Press Trust of India 1990).1 It involved a paternity claim, the details of which are all too typical. A well-off businessman, Kunhiraman, had led a younger woman, Vilasini, to think he would marry her, whereupon she agreed to have sexual relations with him. When she became pregnant and delivered a child, she entered his name on the birth certificate. Hearing of this, Kunhiraman denied his paternity of the child and had his name removed. In 1988, Vilasini petitioned the courts to reinstate his name as father and further made a claim for child support. Kunhiraman fought the case, and eventually it was decided that the best way to settle the case was to turn to the newly available technique of DNA fingerprinting to establish once and for all whether he was the father of her child. The couple proceeded to the Center for Cellular and Molecular Biology in Hyderabad, where Lalji Singh had developed a novel DNA probe using the snake Bungarus fasciatus, the Indian banded krait (Singh and Pandit 2012: 23). The testing proved, beyond reasonable scientific doubt, that Kunhiraman was in fact the father of Manoj, then four years of age. However, Kunhiraman rejected this finding and denied all allegations in court. He claimed that he had met the plaintiff only once, in the presence of her superior at work.

Singh provided the key testimony in the courtroom. He had brought along a slide projector to show the court a visual image of the DNA evidence, only to find that the Tellicherry courtroom was not set up for projection. Singh went ahead regardless, holding the projector in his hands and projecting images on the wall. Although DNA evidence was being used for the first time in Indian courts, Kunhiraman’s lawyer did not question its validity but proposed that the way the tests had been conducted had led to false conclusions. He pointed to a recent press report that even leading laboratories in the United States made a mistake once “every 49 samples.” The magistrate rejected this defense, noting that Singh had trained in Edinburgh, had decades of experience in the field of molecular and cellular biology, and had proceeded with “great care and caution [hence] there was no room for the test to go wrong.” The chief medical adviser to the Kerala police corroborated the validity of DNA testing and was adamant that the test could “never go wrong” (Singh and Pandit 2012: 23).2

Seven of the last ten pages of the chief judicial magistrate’s nineteen-page single-spaced ruling were devoted to a biology lesson explaining what chromosomes and DNA were, the step-by-step procedure adopted for the technique of DNA fingerprinting, and the logic behind and the statistical reasons for confidence in this new test. It concluded that,

[based on the] auto-radiograph, there are nine bands indicated in arrows of Track II which is of the child Manoj which is not present in the mother. Therefore the child must have inherited these bands from the father. A comparison of bands in Track II with the band in Track I would reveal that they all match without any exception. Therefore it is obvious that the alleged father is the biological father of the child Manoj. . . . The erring possibility according to [Dr. Singh] is one in 300 billion, whereas the world population is less than six billion. . . . The only possibility of error is in the case of monozygotic twins. Since the putative father in this case does not have such a brother, it can be safely concluded that he and only he can be the biological father of the child Manoj.3

The possibility that mistakes could be made in the process of testing was not entertained. Visual representation of DNA bands belonging to Manoj and his putative parents, respectively, combined with a UK-trained scientist who had proceeded with “great care and caution” in his testing more than persuaded the chief judicial magistrate that the paternity claim was justified. Kunhiraman appealed the judgment to the Kerala High Court to no avail. Beyond the novelty of being India’s first DNA trial, the identification of Manoj’s father through DNA profiling had the immediate effect of also proving Kunhiraman was not telling the truth. The disassembled body represented by a strand of DNA projected on the wall of the Tellicherry courtroom had become the latest sign of the technologically mediated body’s unerring joining of personal identity and judicial truth. The latest advances of technoscience applied on the human body had reinforced once again its unique ability to extract evidence that resolved judicial doubts definitively. With the onset of DNA in the courtroom, moreover, the line between the analogue and the digital had also been irrevocably crossed.

The first use of DNA fingerprinting in Indian courts marks a turning point in the body’s mediation of personal identity and judicial evidence. This new technology applied to a fragment of the body not only established the identity and veracity of the subject as unambiguously as scientifically possible (“1 in 300 billion”) but also permitted the aggregation of individual cases through digitization and inclusion in a comprehensive database. “Molecular biology underwent a ‘gestalt shift to information thinking’ in the 1950s,” notes Wendy Chun (2011: 104). William Bogard (1996: 142) elaborates: “The medical coding of the body in the modern age has gone from linguistic to informatic, and medical practice from diagnostics (reading signs from the body) to engineering, hyperdiagnostics, and virtualization (the body as an informational structure).” With greater use of DNA typing and the digitization of biological information, the state’s long-standing fantasy of having the entire population represented in a single database had come a step closer.

The Limits of Embodied Truth

The next moment in this genealogy of body, technology, and law comes from an Indian Supreme Court judgment in 2010. Selvi and Others v. Karnataka (MANU/SC/0325/2010) appeared to mark the limit of the body as an unimpeachable source of evidence. In this case, the court had to decide whether and what kind of evidence could be extracted from the body through the application of techniques that potentially violated constitutional standards, namely, polygraphs, brain scans, and so-called narcoanalysis. Polygraphs are lie-detector tests, brain scans (properly, the brain electrical activation profile test) involve measuring spikes in electrical activity in the brain during questioning, and narcoanalysis—popularly known as the truth serum—involves placing the subject in a hypnotic state through the administration of drugs like sodium thiopental (Pentothal) that lower conscious resistance to questioning. What is common among these procedures is the means by which evidence is gathered. All three techniques gain their value by speaking directly to the body while bypassing the conscious (and hence potentially dissembling) mind. Based on the body’s seemingly involuntary reactions to questions while confined to the apparatus of measurement, evidence is generated that the mind does not filter or constrain, offering the illusion of unmediated information that adds to or diminishes the credibility of the judicial subject, whether witness or accused.

Indian law enforcement, with the support of the courts, took to these techniques with alacrity. Notwithstanding repeated concerns about the reliability of evidence extracted by these procedures, the police made it clear that refusing to be subjected to them was itself a sign if not of outright guilt then, at the very least, of suspicious behavior. A number of provincial high courts agreed and supported the use of these methods, dismissing the lack of widespread scientific acceptance and arguing for them in the larger public interest. High court rulings even proposed that the use of these techniques was a humane advance over widely used “third degree” methods, historically commonplace in Indian police stations.

In a further alarming development, high court judgments suggested that applying these techniques did not need the basic protection of voluntary and informed consent, as no testimony was being offered; rather, evidence was being gathered. Speaking under the influence of drugs or having probes attached to the body that measured heart rates, perspiration, and brain activity fell under the category of physical evidence, the courts argued, not direct testimony. Just as taking fingerprints and other forms of embodied physical evidence was well-established criminal investigation procedure that required no consent, these controversial procedures were nothing more than the latest means of gathering physical evidence. Due process and informed consent became relevant only, some judgments argued, when direct testimony—oral speech—was being offered.

It is well established that the results of polygraph tests can be highly misleading. Trained respondents can alter their bodily responses to so-called control questions in such a way that what appears to be true or false is in fact the result of their manipulation of the apparatus. Others may, as a result of the physical and mental stresses of being subjected to these tests, find their responses leading to false-positive results. Asking questions under a drug-induced hypnosis does not guarantee truthful answers. What emerges from narcotic hypnosis—or from torture, for that matter—can include all manner of information, some useful, some incorrect, some imaginary, but now all potentially probative. The brain scan depends on inferences made during questioning through the observation of spikes in brain electrical activity at certain frequencies. Spikes are taken to imply prior knowledge of the event under question but cannot determine how this information was obtained. Brain scans, in other words, cannot distinguish between an innocent citizen who has read about a terrorist attack in a newspaper and the criminal mastermind who carried it out. The apparent mendacity of the subject and the alleged skill of the technician are both in question during these tests, which is why courts around the world have thrown out brain scans, polygraphs, and narcoanalysis as legal and reliable evidentiary techniques.

In their 2010 decision in Selvi and Others v. Karnataka, a three-justice bench of the Supreme Court of India agreed with their international peers and ruled that refusing to be subjected to these invasive techniques was constitutionally protected. Their judgment was based on the following arguments: that what emerged from the use of these techniques was in fact testimony, not physical evidence; since it was testimony, it required voluntary and informed consent before application; that applying these techniques involuntarily was a denial of both the right to privacy and the right against self-incrimination (a robust entitlement that lies at the heart of due process); and hence, that evidence gathered through these methods could not be used in court or to further an investigation. However, just as the votaries of liberal justice were raising a cheer, the justices added that voluntary application of these techniques remained permissible under the law. To quote: “However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place,” and, further, “any information or material that is subsequently discovered with the help of voluntarily administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872” (MANU/SC/0325/2010, para. 223). As long as evidence was gathered from a voluntary application of these techniques, the court wrote, the police could use any information obtained through these procedures to pursue their investigations.

In their judgment, the justices made clear that they were well aware of the unreliability of polygraphs, brain scans, and narcoanalysis as means to discovering evidence. They recognized that the police would often force suspects to go through these procedures, “if they had nothing to hide.” In addition, the court chose to apply a high standard of constitutional validity to deny the involuntary application of these techniques, notably Article 20(3) of the Indian Constitution, the right against self-incrimination. But their final decision was deeply ambivalent. On the one hand, the justices dropped the boom on these techniques by rejecting the claim that they could be applied in a legally valid way; on the other hand, they shifted the burden for their application to the judicial subject in the form of a voluntary decision, in effect leaving these techniques in place. The most generous reading of this judgment is that the court was saying, we don’t find these techniques reliable, but you can choose to use them if you think they will get you off.

It is altogether puzzling that the Supreme Court refused to ban the use of these techniques altogether while acknowledging that they constituted “cruel, inhuman, and degrading treatment” and also agreeing that investigating officials might pressure accused subjects to submit to these tests in order to prove their innocence. Most important, the court also noted that prior “voluntary” consent was meaningless in situations when subjects were not fully aware of the questions being asked due to their altered physical state. The Court’s judgment is clear on this question: “No presumption can be made about [the value] of the test results even with voluntary and prior consent.” Yet the paradoxical exception remained: if these tests were applied voluntarily, their results constituted judiciable evidence.

Techno-Confessions of the Flesh

Over two centuries, technologically mediated “confessions of the flesh” helped overcome the long history of judicial skepticism over the identity and veracity of the potentially criminal subject. The body had become such an impeccable and irreproachable source of knowledge that it appeared to have resolved the conjoined problem long faced by the colonial and now postcolonial courts, namely, is she who she says she is? and, is he telling the truth? The application of forensic technologies to the body to establish identity unequivocally was found to lead unerringly to the discovery of judicial truth. The technologically mediated body could now inform the court of the true identity of the judicial subject: criminal, victim, witness, or innocent bystander. The weight of this history was so strong that even when techniques of speaking to the body reached the point of extracting evidence through means that violated the constitutional injunction against self-incrimination, the court found itself unable to ban these techniques outright. The court agreed with the legal, medical, and ethical doubts cast on the legitimacy of the brain scan, the polygraph, and narcoanalysis but could not bring itself to question the reliability of the body as a source of technologically mediated truth, leaving the contradictory exception in place.

Branding and tattoos were once signs that the body before the court was a repeat offender regardless of what the subject might have claimed. With these new techniques, the body was decomposed into a form of evidence that bypassed the speaking subject and offered evidence directly to the prosecuting authority. Individual silence, the right against self-incrimination, false witness, and outright falsehood no longer hindered the courts from establishing the truth of the matter before them. The unwitting body had become in effect a transparent text and the court’s greatest ally in simultaneously establishing identity and truth. But there is more: under present conditions, the body’s truth is no longer restricted to the account of an individual facing a judicial structure. With Aadhaar, individual bodies, represented in the form of fragments, have been digitized and joined together to produce a massive database that can lead to new aggregations, reductions, divisions, and combinations of the social body. Due to a genealogy that joins identity with veracity, the database can be employed to offer new representations and imaginations of society, built on a foundation of solid (even if mistaken) confidence in its truth-value. This confidence has now crossed over from the judicial into the public realm. Biopolitics, in the traditional Foucauldian sense, is now superseded by a heterogeneous intersection of biology and technology at the social scale that recasts the political in ways that are still emerging (Appadurai 1996; Bayly 2000; Cohn 1996).4

What Kind of Society Does Database Society Produce?

In this article I propose that, contra the tendency that sees the rise of Big Data with equal measures of fear and anxiety,5 the enormous Aadhaar database is generating new and unexpected modes of social trust due to its grounding in the corporeal body. This article offers a genealogy of this unforeseen outcome, working through key moments in the historical intersection of the law, technology, and the body. In this concluding section, I follow the proposal in the introduction to the special issue on knowledge/value published in this journal to “render political” information in its journey to the archive and database (Farquhar and Rajan 2014). I propose that a particular site of contestation that is likely to emerge from this database society is the idea of society itself: the nineteenth-century concept that is the analog counterpart of the human network.

The idea of modern “society” has long been undertheorized in Indian academic writing (Gupta 2000). The clearest symptom of this lack is represented by a standard and (very good) Indian sociology text that has no index entry for the word society (Deshpande 2004). By comparison, a major library could be filled with scholarship on the idea of the Indian “nation,” joined by social histories and ethnographies of particular Indian communities defined in terms of caste and social structure (Beteille 1991). The collective political term nation is far more prevalent as a discursive category in the public and scholarly domains than its social counterpart, society. That said, it must be acknowledged that this ubiquity does not mean that there is any consensus over the meaning of the idea of the nation. Major political fault lines are expressed through disputes over the meanings of and multiple claimants to embodying the Indian “nation”; “society” by contrast is notable for the relative lack of debate over its content as a collective conceptual category.

This relative absence does not mean that society is evacuated of all meaning or has no significance. There is one particular domain where its invocation is relatively commonplace, if not expressed with great precision: the judicial arena. In this space, the idea of society is an unwitting ally and alibi in reinforcing the existing distribution of power, to project and justify the hegemonic mores of a dominant hierarchy (Baxi 1980, 1982). The judicial domain tends to apply the term society as an already known and internalized entity and from that commonplace to extract social norms and cultural standards that are alleged to represent the entire national community (Sen 2010). Judicial references to “natural justice,” the prevailing order or the public good undergird court rulings that argue for the commonsense of a conservative, upper-caste, and middle-class sensibility. A critical approach to the law has always depended on close readings of judgments and careful contextual analysis in order to expose the parochial meanings attributed to society as justifications for conservative judgments.

The emergence of the database society has the potential to undermine both traditional and critical readings of society by introducing an entirely new register for the production and representation of the term. This has happened before. When the decennial census first became a habitual technopolitical means of making colonial India “objective to itself,” the age of adulthood was defined as twelve years for men and ten years for women, definitions that were tremendously consequential for their times and that we would not consider alarming (Cohn 1996). Anthropologists including Vijayanka Nair (2018) and Ursula Rao (Rao 2013; Rao and Greenleaf 2013) have shown how the Aadhaar software has built into it arbitrary and unjustified expectations of “normal” identities and social relations; individuals and families that do not meet this standard are excluded from the master database. But exclusions are only the beginning. New meanings of society will come both from within and outside the database. As so many studies of new media have shown, future configurations of society drawing on the database will be generated from social aggregations that are the product of black-box algorithms beyond public scrutiny.

Lev Manovich reminds us that what is critical to understand about the database is its lack of narrative order; it does not produce its own narrative: “While a database can support narrative, there is nothing in the logic of the medium itself that would foster its generation” (2001: 228). To make sense of a database—to create narrative—material and virtual interfaces are required, the devices and paths through which information in the database is accessed, extracted, and represented (Galloway 2012). In other words, society, now understood as the social collective that emerges from the database, is a product of the internal content and structure of the database and the algorithms that are applied to it to generate meaning. From the paradigmatic database, the archive of all information collected, a number of syntagmatic narratives can be constructed, each offering a discrete vision of society that is as meaningful as another (Manovich 2001).

Algorithms are far from innocent or neutral, as Safiya Umoja Noble (2018) has most recently demonstrated. The algorithmic paths taken through the database define topographies of social bodies in particular and discrete ways. Each algorithm produces a singular narrative generating authoritative conclusions about discrete social formations, from the poor and the middle class to women and sexual minorities. Although these formations may be represented as self-evident categories, in fact they are heterogeneous formations constituted as embodied sites of interaction between state institutions, social movements, and technical expertise, already shot through with claims and counterclaims around norms, custom, culture, privacy, and rights.

In the database society, the ideological power of the interface absolves us from the simultaneous partiality and overdetermination of this knowledge. New social simulations that define the norm and the standard, the anomalous and the aberrant, are generated by the application of privately designed rules and codes. No vision is comprehensive: these simulations of society are always partial, less than the extent of the database, an incomplete body. The social formations that emerge from the database become visible at the expense of other competing but invisible collectives. Seeking to establish the needs of the poor versus the wants of middle class, for instance, ends up comparing different syntagmatic narratives. The impression that we are making reliable public policy choices relies entirely on and is a function of the content of the database and the rules of the algorithm that extract seemingly relevant information. What allows parochial claims to be represented as universal statements accurately representing the entire social body comes from the extent of social confidence in the underlying universal database. Politics, as a result, becomes redefined as the struggle to establish the dominance of one vision of database society over another, masking the necessary application of black-boxed software and the never-disinterested interface in the production of these competing visions.

In the database society, intersections of law, body, and technoscience engender new human networks: temporary alliances among material forces, inanimate techniques, discourses, norms, and institutions, organized around the technologically mediated body. The centrality of the body, a source of unimpeachable truth, obscures the extensive conjunction of forces and interests in the networks—personal, institutional, political, scientific—that face off in the battle over whose vision of society is going to prevail and thereby determine, for the moment, the public good. The apparent neutrality of technoscience obscures the politics of struggle over how the public comes to be defined and who benefits from particular visions of the public good. Database societies are not societies without politics; rather, they produce a political field where irreconcilable visions of society compete against one another, mediated through the algorithm and the interface, shaped by programmers whose mores, interests, and beliefs are materialized in and made invisible by the code they write, deployed by private and public agents with structurally uneven access to resources and capabilities.

Acknowledgments

Earlier versions of this article were presented at the Center for Southeast Asian Studies, Kyoto University; at Tembusu College of the National University of Singapore (NUS); as a keynote lecture at the annual meeting of the Australian Sociological Association, Cairns; and as the second Sage-CRG Public Lecture, Presidency College, Kolkata. My thanks to the organizers of these events for their invitations and hospitality, to the digital cultures reading group at the Asia Research Institute, NUS, Lilli Irani, and to Chitra Venkataramani for her interrogations. I received excellent advice and suggestions from two anonymous reviewers, for which I am very grateful. Above all, my sincere thanks go to the keen eyes and immense patience of the organizers of this special issue and the editors of this journal.

Notes

1

Magistrate’s Court case no. 17 of 1988, petitioner Elaveettil Manoj (minor) and counterpetitioner Alora Veettil Kunhiraman, Tellicherry, Kerala, available at the Pushpa M. Bhargava Foundation, Folder DNA Fingerprinting, Center for Cellular and Molecular Biology, Hyderabad.

2

For an early analysis of the dangers of mismatching during DNA testing, see Lewontin 1992.

3

Magistrate’s Court case no. 17 of 1988, 12–13.

4

The Aadhaar database is not the first “universal” Indian database: the decennial census long preceded it. The first official census in India was conducted in 1871, although arguably the founding moment could be pushed back even further to 1760 (Cohn 1987: 232). As with all technologies of enumeration, census taking led to the enforcement of novel social norms and standards, such as defining manhood from the age of twelve and the corresponding age of the woman at ten. Scholars have pointed in particular to the effect of the census on the institution of caste, broadly arguing that census taking reinforced caste as a form of social distinction and became a means for its reproduction over time and homogenization across space (Appadurai 1996). The census, Bernard S. Cohn (1987) concludes, played no small part in making Indian culture and society “objective” to themselves. For another discussion of how India came to understand itself, see the work of historian Chris Bayly (2000).

5

Discussions of database society typically focus on the loss of personal autonomy. When the state is the progenitor and regulator of the universal database, the political implications are usually framed in terms of the dangers and risks of a world of total surveillance. In the interests of security, the state now has easy access to information long considered private, from phone records to bank accounts. Advances in facial recognition technology and behavior profiling through artificial intelligence seek to predict illegal political actions and to identify their agents before they happen, leading to what was once the domain of science fiction increasingly becoming a real possibility in major global metropolises. The loss of privacy justified by the demands of state security increasingly produces an illiberal political field where personal autonomy and independence have become endangered values. On the economic front, corporations have been quick to see commercial advantage in the effort to monetize enormous databases by collecting all kinds of information about everyday behavior. In an uncanny reversal of the usual modes of data collection that were historically established, the most technologically sophisticated consumers now voluntarily forgo extraordinary amounts of private information for commercial use, from health records and eating patterns to the mapping of desires and pathways of physical movement. Retaining control over personal information is now so challenging that the desire to protect personal sovereignty seems entirely quixotic.

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