Voluntariness and Excessive Delegation

The government will no doubt argue that the way they have structured things in the amendments ensures there is no violation of the right to privacy, since it is on a voluntary basis, requires informed consent, and requires any authenticating entity to satisfy the UIDAI of their privacy and security standards. But this isn’t how the amendments actually play out, for a number of reasons. First off, the use of Aadhaar for authentication/offline verification on a voluntary basis is only specified in the new subsections being added to Section 4 of the Aadhaar Act. The specific provisions amending the Telegraph Act (which applies for telecom companies) and the PMLA (which applies for banks) do not make Aadhaar voluntary. Instead, they say that the relevant entity “shall identify” clients (ie, perform KYC) using Aadhaar, passports or other any other form of identification notified by the central government. The option of a passport is a false choice, since only 5.15 percent or so of Indians have passports, according to MEA data, and the government’s past record on notifying other forms of identification through subordinate legislation for Aadhaar has been consistently terrible.

Lack of Data Protection Law and Privacy

One way to address the privacy concerns would be if there were a strong data protection law in place which could prevent private entities from misusing Aadhaar data. Unfortunately, while the Srikrishna Committee submitted its report and draft data protection bill to the government way back in July 2018, no bill has been introduced in Parliament yet. In response to objections to the introduction of the Aadhaar amendments on these lines, the Law & IT minister stated in Parliament that the data protection bill is ready, and will be introduced soon. Introducing the Aadhaar amendments before this would be putting the cart before the horse, as till such time as a data protection law is put in place (or the standards for privacy otherwise specified), the court’s privacy concerns are unlikely to be addressed. According to Apar Gupta, Supreme Court advocate and Executive Director of the Internet Freedom Foundation, this would mean that,

The Money Bill Question

There is also an argument to be made that it is impossible to amend the Aadhaar Act 2016 to allow usage of Aadhaar by the private sector, because of its designation as a Money Bill. When it was being debated in Parliament, a number of amendments to the then Aadhaar Bill were passed by members of the Rajya Sabha, including prohibition of private sector usage. The government got around these by designating the law as a Money Bill, which meant the Rajya Sabha’s approval wasn’t necessary anymore. In his dissenting opinion in the Aadhaar judgment, Justice DY Chandrachud had found this to be a “fraud on the Constitution”, and so struck the whole Aadhaar Act down as unconstitutional. The majority opinion didn’t go so far, but as Raman Chima, Policy Director at Access Now says,

Modi Government’s Aadhaar Amendment Bill Violates Supreme Court’s Aadhaar Judgment

(This article was first published on 26 June 2019. It has been republished in the light of the Supreme Court on Friday, 22 November 2019 asking the Centre to respond to a plea challenging the constitutional validity of the amendments made in the law.)

The Aadhaar and Other Laws (Amendment) Bill 2019 is listed for debate and passage in the Lok Sabha today. The Bill was originally tabled back in January, but despite being passed in the Lok Sabha, was not passed by the Rajya Sabha prior to the dissolution of the Lower House for the general elections, leading to its lapse.

The Modi 1.0 government had promulgated an ordinance in February to bring the amendments in the Bill into being, but since this cannot be a permanent measure, the Bill has been reintroduced in Parliament in this session.

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Topics: Ravi Shankar Prasad Supreme Court Aadhaar

Published: 03 Jan 2019, 10:32 PM IST

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Modi Government’s Aadhaar Amendment Bill Violates SC Judgment

Here’s why the proposed amendments, including those for private sector Aadhaar usage, are likely to run into trouble

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Topics: Ravi Shankar Prasad Supreme Court Aadhaar