The Aadhaar amendment, which failed to pass in Parliament earlier this has staged a return as an ordinance.
The government announced on Thursday that it would permit private entities to use Aadhaar for authentication and verification via an ordinance, which aims to empower the Unique Identification Authority of India (UIDAI) for evaluating and those within the Aadhaar ecosystem more .
In simple terms, expect your banks and telecom service providers to demand your Aadhaar details for opening a bank account or procuring a SIM connection.
But wasn’t this just ruled as not mandatory?
Yes, and if the ordinance language sounds eerily similar to the Bill that sought to amend the Aadhaar Act last year, that’s because it is Centre’s thinly veiled attempt to circumvent the court’s guidelines and supersede the parliamentary vote.
In fact, the Department of Telecommunications (DoT) last October issued a notification to all telecom companies to stop using Aadhaar for electronic verification of existing mobile phone customers as well as for issuing new connections, in compliance with the Supreme Court’s ruling.
The Lok Sabha hurriedly passed the proposed amendments in Parliament on January but they failed to make it to the Rajya Sabha. Pending in the Upper House, the Bill would have lapsed with the dissolution of the current Lok Sabha.
Though the Bill failed the floor test, its provisions will be the law of the land for six months at least, after which the ordinance will lapse.
Before gaping at the impact of this move, read on to find out what led to this stupendous decision, taken during what was probably the last Cabinet meeting of Prime Minister Narendra Modi’s five-year term.
The SC verdict that the Centre prefers not to heed
Briefing reporters after a Cabinet meeting Modi chaired, Law IT Minister Ravi Shankar Prasad said the Cabinet has approved the promulgation of an ordinance to give effect to the Aadhaar and Other Laws (Amendment) Bill.
The ordinance makes a few changes to the Aadhaar Act according to the guidelines set down by the SC, retaining its language and essence selectively.
In its on governments 12-digit biometric identity project last year, the top court had upheld the constitutional validity of Aadhaar, but it also set some conditions for its use.
For example, the court also said Aadhaar is not compulsory for gaining admission in any school. No child shall be denied benefits for the want of Aadhaar, the judges had said.
But more importantly, the apex court had deemed that Aadhaar be kept voluntary except for welfare delivery schemes; it also forbade, in explicit terms, private companies, like banks and mobile phone sellers, to use Aadhaar data.
In doing so, it effectively struck down attempts to make Aadhaar linking mandatory for bank accounts and mobile phone connections.
Objectives of the ordinance
The ordinance not only brings this back, but it also empowers the UIDAI to fine companies and individuals within the Aadhaar ecosystem if they contravene existing rules.
Other provisions in the ordinance include a section that allows for non-biometric offline verification and an SC-mandated option for children to opt out of Aadhaar when they become adults.
Aadhaar has always had a problematic history
Without any public consultation, by skirting legal propriety and to reverse its failure in Parliament, the government has introduced this ordinance.
In some cases, the ordinance attempts to adhere to the courts guidelines, but in others, it attempts to circumvent them. Several lawyers have objected, questioned, and vowed to challenge the constitutionality of the ordinance, coming as it is just days before the Election Commission announces dates for the general elections.
But critics claim that wilful disregard for the letter of law and working on a legally untenable terrain were embedded into Aadhaar’s code ever since its inception. After all, the project operated largely without any legal backing for the first seven years.
Later, the Centre admitted in court as well, to the scale of its dishonesty in leading the common masses to believe that it was imperative to enrol.
More than a billion Indians have already signed up for Aadhaar, set up with the intention of becoming a digital identification for all citizens to avail government services. This made the delivery of such services conditional, making it compulsory for citizens to divulge their biometric and demographic information.
The government made the 12-digit Unique Identification Number compulsory also for bank accounts, PAN cards, cellphone services, passport, and even driving licences.
Why you should care
The Aadhaar card became the overarching proof of identity and residence, considered superior to all other prior identity proofs. However, after its rollout, several concerns emerged over privacy, data security, and recourse for citizens amidst data leaks.
Petitioners challenged the validity of Aadhaar and said the government can’t make it mandatory simply because the huge database can easily be compromised. Advocate Shyam Diwan argued that the Aadhaar architecture is capable of tracking, tagging, and profiling of individuals, and it is, therefore, unconstitutional.
Even after the law for Aadhaar passed, it came into being as a Money Bill, thus requiring only Lok Sabhas approval, while completely bypassing the Upper House of Parliament.
Dissenting Justice DY Chandrachud had then opposed this fraud on the Constitution. The Aadhaar Act, he said, was liable to be struck down for violating Article 110 of the constitution, which has specific grounds for a Money Bill that the Aadhaar law surpassed. He added that in the current form, the Aadhaar Act cannot be held constitutional.
With this latest curveball, another shake-up in the Aadhaar landscape is imminent. But now that a larger section of the population is wary of the pitfalls and underbelly of the UIDAI project, vigilance is key so as not to confuse voluntary with provision of your Aadhaar number.
But it may only be a matter of time that banks and telephone companies revive their demands to link personal, biometric, and demographic details to your identity.
Prarthana Mitra is a staff writer at Qrius