Can consent make Aadhaar legitimate?
Not for the people who depend on it most, because consent presupposes someone who already has the standing to refuse. For the labourer whose rations depend on her fingerprints authenticating, Aadhaar does not act on a standing she already has; it produces her standing as an entitlement-bearer. She cannot refuse it without refusing the standing from which refusal would make sense, so consent is not merely strained there but conceptually misplaced.
The response to Aadhaar’s failures, in the courts, in activism and in much of the scholarship, has been to demand better consent: clearer notice, meaningful opt-out, stronger guarantees for the data subject. India’s Data Protection Act of 2023 builds its architecture on consent and consent managers. These demands are not wrong, but for a distinctive class of cases they are addressed to the wrong question.
What consent presupposes
The liberal tradition specifies at least four conditions for valid consent: the person must be competent, informed, acting voluntarily, and someone whose authorisation is normatively relevant, someone with standing over the domain in question. Debates about consent failing almost always concern the first three: the patient without capacity, the user who did not read the policy, the employee who cannot refuse monitoring. The fourth, standing, is almost always taken for granted.
Aadhaar’s hardest cases fail on standing. A person can meaningfully consent to enrolment only if she occupies a standpoint from which she could say: I will not enrol, and I will keep my standing as an entitlement-bearer by other means. For the documented urban citizen that standpoint exists, in attenuated form. For the rural labourer without a birth certificate or a stable address, it is not merely costly but illusory. Refusing Aadhaar is then not refusing an identification mechanism; it is refusing to exist as a subject the welfare state can see.
Practical failure and conceptual failure
Consent can fail in two ways. It fails practically when its conditions could be met but are not, as when a privacy policy is too long to read; the fix is better design. It fails conceptually when its conditions cannot be met in that context, when no redesign, however ambitious, could restore it to its role.
Medical ethics already knows the second kind. When a patient lacks the capacity to consent, we do not pretend a better brochure would restore it; we replace consent with surrogate decision-making and best-interests standards. The question about Aadhaar is whether something analogous is required, not because its subjects are incompetent, but because the conditions of their consenting, a standing that precedes the system, have not been met. Where the system produces that standing, consent has nothing to authorise. This is the condition I call constitutive dependence.
Three patterns
Three patterns in the Aadhaar record make the point. The labourer whose worn fingerprints fail at the ration shop authorised enrolment, not her own exclusion, and her exit would itself exclude her. The migrant worker’s entitlement is tied to a node in a national database, so the movement on which her livelihood depends puts her legibility, and so her food, at risk. And the child enrolled before she can consent to anything has her standing as a recipient of school meals and scholarships produced through the enrolment itself.
In each case the normative question is not whether the system secured valid consent but what an institution owes when it is the condition of the recognition its subjects depend on.
Questions people also ask
Is the argument against Aadhaar itself?
It is an argument about what makes systems of its kind legitimate, not a call to abolish it. It reads Aadhaar as an early instance of an architecture towards which algorithmic governance is converging, and asks what such institutions owe the people whose standing they produce.
Didn't the Supreme Court settle the consent question?
In Puttaswamy II (2018) the Court upheld Aadhaar for welfare while striking down mandatory use by private entities, and the remedial logic throughout was one of voluntariness, informed authorisation and opt-out. My argument is that this framework addresses the wrong question for the cases where Aadhaar produces people’s standing, not that the Court’s demands were wrong.
Isn't this true of all state institutions, such as birth registration?
Many institutions have constitutive effects. The point is that data protection and AI governance have proceeded as if algorithmic systems were new intruders on a space of already-recognised subjects. Systems that enforce their criteria automatically, without the discretion by which an official can recognise the manifestly entitled, make the latent condition impossible to ignore.
Do the disputed exclusion figures matter to the argument?
The argument does not depend on them. The figures are contested and I take no stand on their magnitude; the argument needs only what is not seriously in dispute, that authentication failure is patterned rather than random, concentrating among people whose hands bear the marks of manual labour, and that for those it excludes the consequences can be grave.
Read next
Sources and further reading
- Saxena, A. (2026). Beyond consent: Algorithmic welfare, constitutive dependence, and the limits of liberal AI ethics. AI and Ethics 6: 414.doi.org/10.1007/s43681-026-01270-5
- Drèze, J., Khalid, N., Khera, R. and Somanchi, A. (2017). Aadhaar and food security in Jharkhand: Pain without gain? Economic and Political Weekly 52(50): 50–59.
- Khera, R. (ed.) (2019). Dissent on Aadhaar: Big Data Meets Big Brother. Hyderabad: Orient BlackSwan.
- Solove, D. J. (2013). Introduction: Privacy self-management and the consent dilemma. Harvard Law Review 126(7): 1880–1903.
- Faden, R. R. and Beauchamp, T. L. (1986). A History and Theory of Informed Consent. Oxford: Oxford University Press.
Cite this page
Saxena, A. (2026). Can consent make Aadhaar legitimate? abhinavsaxena.in. https://abhinavsaxena.in/questions/can-consent-legitimate-aadhaar/