Critical Analysis of Aadhaar Act in India: Mandate or Countermand
By –
Abhinav Bishnoi1*, Anchal
Jain2* and
Sarthak Chauhan3*
ABSTRACT
Aadhaar
Act is one of the most crucial Act in India. This article reviews the problems
of Aadhaar card related to its security, its importance to link it to other
documents and digital platforms and in what all cases is it mandatory to hold
an Aadhaar card by the general public. It is important to know the implications
of the Aadhaar Act passed in 2016 for the people of India for their unique
identity nationally. This article also critically analyzes the various Supreme
Court judgments and orders passed in/against the favour over the mandate of Aadhaar
card. The issue of Right to Privacy has
also been taken into consideration and whether the information of the public is
really safe with the government or not. Additionally, the text explores the
legality of Aadhaar card through different notable journals and articles. The
article also found the importance of holding the Aadhaar card and certain
loopholes present in the government system over the implication of the Aadhaar
card. Hope that this article provides important information to the general
public who are not sure about the validity of Aadhaar card in various
government schemes.
Key Words: Aadhaar Card, UIDAI, Security Threat, Demographic Information.
INTRODUCTION
Aadhaar
is a 12-digit unique identity number which was introduced under the scheme
UIDAI (Unique Identification Authority Of India), a statutory authority
established by the UPA government in January 2009. It is the world’s largest Biometric Identity System enrolling 1.19
million almost 99% of Indian.[1] The objective of UIDAI is
to issue Aadhaar number to every Indian citizen to enable a portable identity
which can provide authentication anytime anywhere electronically in a secured
and quick manner, making the services efficient and cost-effective. Initially
in 1999, Shri Atal Bihari Vajpayee, Former Prime Minister had proposed the
identity cards for the people living in border areas which were later accepted
in 2001 by Former Home Minister Lal Krishna Advani, who then recommended a
multi-purpose National Identity Card. Later under the UPA government, UIDAI
came into being and co-founder of Infosys Mr Nandan Nilekani was appointed as
the chairperson of the Aadhaar project.
Aadhaar
card contains “demographic information”
including information relating to the name, date of birth, address and other
relevant information of an individual, as may be specified by regulations for
the purpose of issuing an Aadhaar number, but shall not include race, religion,
caste, tribe, ethnicity, language, records of entitlement, income or medical
history.[2]
As a demographic feature Quick Response code is also printed on every card
issued to the citizen. The biometric data
and demographic information are stored into one centralized database hence
making the project world’s Largest Database Management and Biometric ID System
respectively by Forbes and The Times of India.[3][4]
The demographic information of Aadhaar card is subject to change under the
UIDAI project through online support from the official website of UIDAI (uidai.gov.in).
For making changes, one needs to submit an application to Gazette Notification
of India mentioning that the required person’s name is changed from old to the
new one. For changes in address, landline bill, electricity bill, credit card
bill, Voter ID, bank passbook, Passport or any kind of rental contract a
scanned copy of identity proof is adequate. Gender and mobile number can also
be changed with the help of proof of identity. The changes in demographic
information are authenticated through an OTP (One Time Password) been sent to the
registered mobile number but the bio-metric data is not subject to change.
SCHEMES AND SERVICES
LINKED TO AADHAAR
In
this day and age, the Aadhaar card has been linked to various systems and
government functionalities along with the schemes provided by the government of
India making it a mandate to link the aadhaar to avail the services. The miscellaneous
schemes to which the government of India has been linking the Aadhaar can be
listed as Cooking gas subsidies, house
allotments, school scholarships, admission into remand and welfare houses,
passports, e-lockers (eg. Digilocker), for archiving documents, bank accounts
under PMJDY (Pradhan Mantri Jan Dhan Yojana),
provident funds account, pensions, driving license, insurance policies, loan
waivers and many more.[5]
It has also been made mandatory for ATM Cash Transaction[6],
railway reservation[7]
and applying PAN (Permanent Account Number) card, and
filing income tax returns.[8]
In fact, in 2016, Aadhaar Bill (Targeted Delivery of Financial and Other
Subsidies, Benefits and Services) was introduced as a Money Bill in Lok Sabha,
aimed to provide for good governance[9].
In this bill, Aadhaar card was made mandatory for authentication purposes like
salary payment, pension schemes, school enrollment, train booking, for getting a
driving license, to get a mobile sim, to use a cyber café etc. The news suggests
that UGC (University Grants Commission) instructed the
universities to include a photograph and seed the 12-digit Aadhaar number on
the mark sheet as well as on the certificates to bring consistency and
transparency. Further with security features, it would eliminate the
duplication of the mark sheet[10].
Not
only this, after a recent order passed by
Supreme Court dated 13th March 2018[11],
UIDAI announced that Aadhaar will be a mandatory requirement for opening a bank
account and applying for a Tatkal passport. In addition to its centre had
furthered the process of linking driving license to aadhaar as well. Soon,
linking of aadhaar to marriage registration also is going to be mandatory in
order to ensure legal security and societal recognition of women. In a recent
announcement, it was laid down that government cannot make linking of aadhaar
mandatory in case of welfare schemes, but it cannot be restricted to link the aadhaar
to non- welfare schemes as well. There is a huge list to which perhaps there is
an end for linking of aadhaar. Farmers who want crop insurance benefit and people
who are eligible for food grains subsidy are compulsorily required to make aadhaar
to avail the benefit. It has also become mandatory for availing some welfare
schemes under the National Apprenticeship Promotion Scheme, Janani Suraksha
Yojana and Integrated department of Horticulture as well.
CRITICAL ANALYSIS
The programme, which was initiated
for giving an identity to every person on an expanded web portal that can be
used for authentication and verification purposes nationally, is a good example
of the introduction of a technology that
is expanding beyond what it was intended for. The area of this technology has
been continuously evolving started with
giving the person an identity acting as a mode to impose the new concept of the
cashless economy, moving forward it became a precondition for any type of state
resistant. The progress UID technology is making can be said to be coercive in
nature because the performance of some duties to which aadhaar is linked will
only be considered if the person has the UID number as per the Aadhaar Act
2016. There are a lot of amendments been made in order to implement the
identification system which signifies the day is not far when not having a UID
number will be considered as a “crime”
“There
is no absolute right over the body. The right to your body is restricted by the state,”[12]
said Attorney General Mukul Rohatgi in a reply to the news reporter when he was
asked about the forced way of taking bio-metrics. This forced way of the state is establishing an idea that to live in
the state the individual has to follow all the rules imposed by the state else
the option is to reside in the Himalayas. Such statements by the authorities
bring up the quest over the sustainability of such a system’s survival if it rides over the rights of the people.
On
one side it was said that Aadhaar card is just for giving every person an
identity nationally and it is voluntary, not mandatory for everyone on the other hand government is decreasing the
facilities if the individual has not linked the Aadhaar card with the concerned
service. It has been made mandatory if the people want to use any particular
service because now the UID number has become compulsory for almost everything.
According to the Petitioners, “though Aadhaar Act prescribes that
enrolment under the Act is voluntary and gives choice to a person to enroll or
not to enroll himself and obtain Aadhaar card, this compulsive element thrust in
Section 139AA of the Act makes the said provision unconstitutional.”[13] It is
pretty clear from the judgement that enrolment of aadhaar is voluntary but at
the same point of time aadhaar has been linked to each and every scheme be it
welfare or non-welfare. Though the government claims that it is not a mandate
for welfare schemes there has been schemes which are for
the welfare of the people and have been linked to aadhaar. Aadhaar has been the
subject of many rulings by the Supreme Court of India. On 23 September
2013, the Supreme Court issued an interim order saying that "no person
should suffer for not getting Aadhaar"[14] The
main point to be noted is that, from SC order and Aadhaar Act the Government is
not making aadhaar enrollment mandatory but making it's linking mandatory to all
the schemes and services indirectly repeals the SC order. Through this, a
deduction can be made that no matter what the Indian citizen has to link his aadhaar
to avail the basic services. However, people have to unwillingly get enrolled to
UID number. As it has already been mentioned that aadhaar contains the
demographic information of the people including their fingerprints which possess
a great threat to the security of the data provided. Government has only focused on how by utilizing the
Aadhaar Act there can be any profit, however, it was unable to focus on other
aspects and neglected to look at the problems that the information they are
taking from citizens can be used by anyone for any illegal or other purposes.
The threat to the security of data as there is no basis provided till now, no
such law has been made if there is any leakage of data occurs. The negative effect of the compulsory necessity
of Aadhaar card for access to appropriations and advantages must be brought up
in the hearing. The Aadhaar Act characterizes itself as "An Act to
accommodate, as a decent administration, productive, straightforward, and
focused on the conveyance of endowments, advantages and administrations, the
use for which it is brought about from the Consolidated Fund of India, to
people living in India." By connecting Aadhaar with managing an account,
pay expense forms and mobiles associations for people who don't get advantages
but providing their details to different types of companies raises the basic
question over the protection of data that to what level it will be secured and
who will keep an eye on it. “By the government's own estimates,
the Aadhaar initiative has covered 98 percent of
the adult population 7
September There are more than 111 crore people registered under the Aadhaar act
and as Aadhaar is now mandatory for banking, for purchasing a sim card, filing
income tax returns and it applies on all the public officials of India which
also includes the Intelligence Bureau, RAW or other agencies which are related
to security they must also register themselves under the Aadhaar and then the
data will be stored with UIDAI. Here comes to the most interesting fact that in a country where twitter
account of a government official can be hacked such that of India’s permanent
representative to UN Syed Akbaruddin shows the level of vulnerability of data,
there is information which is available on the internet and in any form it can
be accessed by anyone from anywhere and can be taken illegally. Linking of aadhaar
is getting mandatory for almost every basic service provided by the government
and private companies also. While linking Aadhaar to services a lot of personal
information is provided to it which may result in its access as well as the threat
to the security to all the personal information by just the Aadhaar Number.
Apart from the security threat, it raises concern about the privacy of data on
which there has been a lot of discussions and orders by the Supreme court of
India. When
a Supreme court verdict on Right to Privacy was pronounced by nine judges bench
the validity of Aadhaar was also challenged, that the scheme is violating the fundamental
right of privacy. "The Right
to Privacy is protected as an intrinsic part of the Right to Life and Personal
Liberty under Article 21 and as a part of the freedoms guaranteed by Part III
of the Constitution”[16] in an order
declared by the judge. With this verdict, there is a question on the safeguard
of 12-digit unique identity number which was given to all Indian residents on
the ground of the bio-metric and demographic information. The constitution gives
the right to privacy contrary to which there has been mandated to provide the
personal information on the bio-metric system under the legal sanction, which is
a clear infringement of right to privacy, the fundamental right.
CONCLUSION
The UIDAI initiative
for providing the Indian citizens with a unique identity for authentication and
verification anytime anywhere for people’s suitability is for sure a
commendable initiation. Though the government is successful in enrolling 90% of
people it can be observed that it possesses a great security threat of
safeguarding personal information. The mandate of aadhaar is still not lucid as
its enrollment is voluntary but it linking to various government schemes,
services and digital platforms has been made mandatory. If the enrollment becomes mandatory it will then infringe the right to privacy which is a
fundamental right. Hence It is a very critical issue that needs urgent attention
to decide upon.
1*
III Year, B.A.LL.B(Hons), Institute of Law, Nirma University.
2*
III Year, B.A.LL.B(Hons), Institute of Law, Nirma University.
3*
III Year, B.A.LL.B(Hons), Institute of Law, Nirma University.
[1] "Public Data
Portal". UIDAI. Retrieved 1 Dec 2017.
[2] THE AADHAAR (TARGETED DELIVERY
OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016
[3] UIDAI: Inside the World's
Largest Data Management Project. http://www.forbesindia.com/article/big-bet/uidai-inside-the-worlds-largest-data-management-project/19632/1.
[4] Aadhaar world's largest
biometric ID system.
http://timesofindia.indiatimes.com/india/Aadhaar-worlds-largest-biometric-ID-system/articleshow/47063516.cms.
[5] Sen. KM. Aadhaar: Wrong Number,
Or Big Brother Calling. Socio-Legal Rev. 2015, 11 (2), pp. 85-108.
[6] All DCB Bank ATMs to become
Aadhaar-enabled in six months.
http://www.ibtimes.co.in/indias-first-aadhaar-enabled-atm-launched-bengaluru-682593.
[7] Railways to make Aadhaar
mandatory for online ticket booking.
http://www.thehindu.com/news/national/soon-aadhaar-will-be-must-for-booking-train-tickets-online/article17394110.ece1.
[8] Aadhaar mandatory for filing
I-T returns, applying for PAN card. http://indiatoday.intoday.in/story/aadhaar-mandatory-for-filing-i-t-returns-pan-card/1/909530.html
[9] Can the aadhaar bill be used by
the govt. As an Excuse to Violate Our Right to Privacy?
https://www.youthkiawaaz.com/2016/03/aadhaar-data-surveillance-privacy-national-security
[10]Include student’s photos,
Aadhaar Numbers in degrees: UGC tells universities. http://indianexpress.com/article/education/ugc-universities-to-include-photos-aadhaar-numbers-in-degrees-4580530/.
[11]
http://supremecourtofindia.nic.in/supremecourt/2012/35071/35071_2012_Order_13-Mar-2018
[12]
https://thewire.in/economy/coercion-aadhaar-project-ushar
[13] Binoy Visvam V. Union of India
and Ors. MANU/SC/0693/2017
[14]https://www.hindustantimes.com/delhi-news/no-person-should-suffer-for-not-getting-aadhaar-sc/story-i4lEYx2uIRpMObetGOazTO.html
[15]https://www.firstpost.com/india/aadhaar-privacy-debate-how-the-12-digit-number-went-from-personal-identifier-to-all-pervasive-transaction-tool-4308043.html
[16] https://en.wikipedia.org/wiki/Fundamental_rights_in_India
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