The Aadhaar and Other Laws (Amendment) Bill, 2018: A Critical Analysis

Context:

The Aadhaar and Other Laws (Amendment) Bill, 2018 has recently been passed in Lok Sabha

Background

• The Aadhaar is the brand name of the Unique Identification Number that the Unique Identification Authority of India (UIDAI) issues to every resident of India. It is a twelve-digit number which is linked with the resident’s demographic and biometric information
• The Aadhaar schemewas conceptualised in the year 2006 and launched in the year2009 with the creation of Unique Identification Authority of India (UIDAI)
• The objective of the project is to issue a unique identification number which can be authenticated and verified online. This would ensure effective enforcement of individual rights- a clear registration and recognition of the individual identity with the state to implement their rights, to employment, education, food etc.

Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services):

• Passed as a money bill, the Act serves as a legal backing to the Aadhaar Project.
• It provides that the Aadhaar number can be used to validate a person’s identity, but it cannot be used as a proof of citizenship.
• The Act also enabled the government to make it mandatory for a person to authenticate her/his identity using Aadhaar number before receiving any government subsidy, benefit, or service for which expenditure was incurred from the Consolidated Fund of India.

Issues and Concerns over AadhaarAct, 2016:

1. Passing of Aadhaar Act as Money Bill:

• The critics have argued that the Aadhaar Act is unconstitutional as it was passed as a money bill despite not satisfying the requirements set out in Article 110 of the Constitution to be certified a Money Bill.
• Introducing the Aadhaar Act as a money bill deprived the Rajya Sabha of its power to reject or amend the Bill. Critics argue that passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution.

2. Privacy and Security Concerns: Critics advocate that the Aadhaar project is a violation of the fundamental Right to Privacy. Various privacy concerns include:

a) Data security: Concerns have been raised over security of singular mega-database of sensitive data. Leaking of sensitive personal data would breach individual’s privacy.

Examples of Aadhaar Data Leak:

April, 2018- Aadhaar data leak of 1.34 Lakh people from Andhra Pradesh Government Website: Personal data of nearly 1.34 lakh people from Andhra Pradesh were leaked via Andhra Pradesh State Housing Corporation website. Details including caste, religion, account number, IFSC code, bank branch, mobile number etc. were made on the site publicly.

b) Identity Theft:Aadhaar-enabled Payments System (AePS), has created a vulnerability to identity fraud and identity theft.

c) Personal Integrity: another privacy concern is undermining of personal integrity arising from the discomfort from information about our lives being available to people or institutions with whom one does not wish to share it.

d) Bodily Integrity:A major issue highlighted by critics is that the Aadhaar project gathers biometric information and violates bodily integrity.

e) Surveillance: Critics have raised concerns that Aadhaar can lead to a surveillance state where each individual canbe kept under surveillance by creating his/her life profile andmovement as well on his/her use of Aadhaar.

f) Personal data economy: Critics argue that Aadhaar would lead to the creation of a personal data economy and commercial exploitation. It is a serious concern in the absence adequate digital and legal literacy and data protection measures.

3. Reduction of Constitutional Identities: Critics such as Justice Chandrachud observes that constitution recognizes multitude of identities through the plethora of rights that it safeguards. However, the technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number thus undermining individual right to identify herself/himself through a chosen means.

4. Section 7 of the Aadhaar Act:

• Section 7 of the Aadhaar Act empowers the Centre to make it mandatory for the purposes of availing subsidies, social welfare benefits, services etc. Critics argue that exclusion of people caused as a result of mandatory Aadhaar is a violation of Article 14 (Right to Equality) of the Indian Constitution.
• Further, there is violation of the right to life and liberty (Article 21)due to this exclusion as many vulnerable sections of the society might not be able to avail several services which are essential for the survival. This is also a violation of human rights.

5. Violation of right to dignity: Mandatory Aadhaar also undermines a person’s constitutional right to dignity by treating people to be impersonators merely due to their lack of an Aadhaar card or the failure to successfully authenticate via Aadhaar.
6. Role of UIDAI:

• UIDAI carries out all the functions related to Aadhaar project-administrative, providing framework to address grievances, adjudicatory, investigative, or monitoring of the project. Critics argue that making the authority administering a project, also responsible for providing for the framework to address grievances arising from the project, severely compromises the independence of the grievance redressal body.
• Further, the Aadhaar Act does not confer institutional accountability upon UIDAI to protect the database of people’s personal information.

The Aadhaar case and Supreme Court Judgement:

Background:

• The Aadhaar project has been controversial and a slew of petitions have been filed in the Supreme Court against the project. In 2012, Retired Justice KS Puttaswamy and others filed pleas in Supreme Court challenging validity of Aadhaar.
• In 2017, Former Union minister and Congress leader Jairam Ramesh moved to Supreme Court challenging the centre’s decision to treat Aadhaar bill as a money bill.
• The Aadhaar case gained momentum particularly after declaration of Right to Privacy as a fundamental right by the Supreme Court in August 2017

SC’s Observations:

The Supreme Court upheld the Aadhaar scheme as constitutionally valid.The key takeaways from Aadhaar judgement are:

1. The Supreme Court upheld the validity of Aadhaar saying sufficient security measures are taken to protect data and it is difficult to launch surveillance on citizens on the basis of Aadhaar
2. The SC ruled that Aadhaar is mandatory for filing of income tax returns (ITR) and allotment of Permanent Account Number (PAN).
3. The SC said Aadhaar cannot be made mandatory for openings of a bank account and for getting mobile connections.
4. Students of CBSE, NEET, and UGC also do not require Aadhaar number to appear in exams. Even schools cannot seek Aadhaar card for admissions.
5. Aadhaar card is however must for availing facilities of welfare schemes and government as it empowers the poor and marginalised. Exception for children- no child can be denied benefits of any scheme if he or she doesn’t have Aadhaar card.
6. SC struck down Section 57 of the Aadhaar Act as “unconstitutional”. This means that no company or private entity can seek Aadhaar identification
7. SC also struck down the provision in Aadhaar law allowing sharing of data on the ground of national security.

The Aadhaar and Other Laws (Amendment) Bill, 2018

• The Aadhaar and Other Laws (Amendment) Bill has been introduced by the Centre to accommodate the directions and recommendations of Supreme Court in privacy and aadhar case.
• The Bill amends the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, the Indian Telegraph Act, 1885, and the Prevention of Money Laundering Act, 2002. The key amendments made are as follows:

1. Offline verification of Aadhaar number holder: The bill allows offline verification of an individual’s identity, without authentication (submission of biometric or demographic information to data servers) through modes specified by UIDAI by regulations.
2. Voluntary use of Aadhaar to verify identity:

• According to the bill, an individual may voluntarily use his Aadhaar number to establish his identity, by authentication or offline verification.
• The Bill further states that authentication of an individual’s identity via Aadhaar, for the provision of any service, may be made mandatory only by a law of Parliament.

3.Amendment to Telegraph and PMLA Act:

• Telecom companies, banks and financial institutions may verify the identity of their clients by authentication or offline verification of Aadhaar, or passport, or any other documents notified by the central government.
• The person has the choice to use either mode to verify his identity and no person shall be denied any service for not having an Aadhaar number.

4.Deletion of Section 57:Section 57 of the Aadhaar Act, which enabled private authentication, has been deleted.

5. Aadhaar number of children:The bill provides an option to children who are Aadhaar number holders to “cancel their Aadhaar number on attaining the age of eighteen years”.
6. Complaints: The original Act did not allow courts to accept complaints filed by individuals, only permitting the UIDAI or officers authorised by it to make complaints in case of violations. According to the new amendment, individuals will be able to register complaints in certain cases, which can include impersonation, or if their Aadhaar information is disclosed without their consent.

7.UIDAI’s powers:

• UIDAI has been given the power to issue directions to entities in the Aadhaar ecosystem.
• The penalties to be decided by an adjudicating officer appointed by UIDAI for violations of the laws by any entity in the Aadhaar ecosystem.
• The Telecom Disputes Settlement and Appellate Tribunal has been made the Appellate Tribunal for such cases.

8. Use of Virtual IDs: Provision for use of virtual IDs to conceal the actual Aadhaar number of an individual has been provided.
9. Disclosure of information in certain cases:

• The Bill provides disclosure of information in certain cases only for orders by High Courts (or above).
• Previously, an officer not below the rank of a Joint Secretary could issue directions for disclosing information in the interest of national security. The Bill amends this to allow such disclosure on directions of officers not below the rank of a Secretary.

Criticism of the Bill:

1. Making Aadhaar voluntary: Critics argue that the bill doesn’t commit itself to making sure Aadhaar is purely voluntary as it still enables the government to make Aadhaar mandatory for “provision of any service” if it is “required by a law made by parliament”.
2. Amendment to Telegraph and PMLA Act: The bill seeks to amend the Indian Telegraph Act, 1885 and the Prevention of Money Laundering Act, 2002, to provide for the voluntary use of Aadhaar authentication. Critics argue that this is a violation of SC order to strike down Section 57 and completely prohibit private players to use Aadhaar numbers and poses risk of Aadhaar related frauds and thefts.
3. Disclosure of Information:

• The SC had declared Section 33(2) of Aadhaar Act which allowed disclosure of information in the interest of national security, as unconstitutional. However, the bill has put forward a refurbished form of the section thus violating SC order.
• Further, the SC had ordered for a judicial officer to be associated with the process of disclosure. However, the Bill only substitutes the words “Joint Secretary” with “Secretary” in Section 33(2), completely disregarding the Supreme Court’s order demanding inquiry by a judge.

4. Privacy and Security concerns inadequately addressed: Though the bill has taken steps to ensure privacy by regulating entities in Aadhaar ecosystem, the critics argue that it’s not adequate to tackle the problem of Aadhaar-related fraud.
5. Allowing children to delete their Aadhaar number: Though the bill has made provisions to allow children to opt out of Aadhaar once they are adults, it overlooks the fact that Aadhaar is de facto mandatory for all adults as it still required to be linked to one’s PAN card.

Conclusion:

The Aadhaar has been acknowledged as an inclusive tool that effectively delivers social welfare programmes to the poor. However, it is also riddled with highly problematic privacy issues and other challenges. The privacy concerns and data security around the Aadhaar identity number are a high priority to address and necessitates a robust data protection regime and privacy protection legislation in India. The Aadhaar project should also have a transparent mandate and no ensure no citizen is left behind while delivering social benefits.