Aadhaar Resurgence | Still of questionable legality

In September 2018, you needed an Aadhaar number to be appointed as a director of a company, book more than six tickets in a month through the Indian Railways’ online ticketing portal, to avail of a scholarship from the government, or benefits under close to 140 other government schemes. In addition, you were bombarded with daily ‘requests’ from your bank and phone operator saying that it was “mandatory” to link your account and mobile number with the unique identity number.

Then, the Supreme Court put a spoke in its wheels.

A constitution bench, even as it found that the Aadhaar project was constitutional, severely clipped its wings. Not only did the three-judge majority ruling limit the use of the scheme to the provision of benefits under welfare schemes by the government, it also underlined that nobody shall be denied a service due to failure of authentication. Then it found that the requirement of linking with bank accounts as well as mobile numbers was unconstitutional as it might result in people being forced to enrol in what was being touted as a voluntary scheme, and prohibited private companies from using the ID as a means of identity verification.

Most importantly, it assuaged the biggest concern by putting a six-month restriction for the period for which collected data could be stored, limiting the possibility that Aadhaar could be used for massive data-surveillance. In short, the apex court reverted the scheme to what it was originally conceived as under the United Progressive Alliance (UPA) government — a benign tool to verify identity, like a driving license. Over the last two years, it almost appeared that the government had put the scheme in cold-storage.

Over the last few months, Aadhaar has been enjoying a resurgence around the country. For instance, Maharashtra made the unique number mandatory for buying drugs that are generally used by COVID-19 patients, while Rajasthan made it mandatory for testing for the virus. Tamil Nadu made it mandatory at a beauty parlour, spa or salon, while in Telangana, the Aadhaar was made mandatory for its ongoing updating of land records. In Kerala, the portal for registering for government jobs required Aadhaar to be provided, while in Odisha, pension payment were restricted to those whose accounts are Aadhaar-verified. In some of these states, the government has subsequently clarified that Aadhaar will not be mandatory.

Motorists were left fuming when Aadhaar was made mandatory for recharging FASTags — the electronic toll payment system. Even for schemes where Aadhaar is not mandatory, such as withdrawal of Provident Fund money, the procedure is comparatively cumbersome that it is possibly akin to denial of service. Then there were cases where the high courts chipped in with similar rules. The Delhi High Court made it mandatory for voluntary COVID-19 testing, while the Madras High Court directed that Aadhaar be furnished for buying alcohol from State-owned TASMAC shops.

Each of these are in direct violation of the Supreme Court’s September 2018 judgment, which held in unequivocal terms that the scheme was voluntary in nature, and that it became compulsory only for those who sought to receive any subsidy benefit or service under a government welfare scheme for which the expenditure will be met from the Consolidated Fund of India (paragraph 408 of the judgment). Further, it was unambiguously clear that the government could not ‘use the provision to enlarge the scope of subsidies, services and benefits’ (paragraph 321).

The most glaring of such impositions, however, came in September, when the Foreign Contributions (Regulation) Amendment, Act, 2020 mandated that directors and top executives of NGOs receiving foreign aid must disclose their Aadhaar. To be sure, as it has been passed by Parliament, this requirement might not be hit by the restriction in the judgment (just like PAN-Aadhaar linking was permitted by the Supreme Court), but it still does not seem to achieve any legitimate purpose.

Since both NGO registrations and FCRA inflows are tightly regulated by the home ministry, it is unlikely that any wrong-doing will be detected or prevented through this measure. Perhaps this will allow the home ministry to keep a tab on the private financial transactions of directors of NGOs receiving foreign aid (since PAN is linked to Aadhaar). However, that would then squarely fly in the face of the court judgment which found that using Aadhaar to track bank accounts would be violative of right to privacy (paragraph 429).

With the prevailing uncertainty about whether access to the anticipated vaccine for COVID-19 will be based on a unique ID, the constitutionality of these measures need to be addressed with alacrity.

Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.