Lifting the Aadhaar Card Curtain

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The Aadhaar Act aims at voluntariness; the Finance Act makes it compulsory. It means there is no way to file the IT returns for a citizen unless the citizen is prepared to part with biometric data, fingerprints and iris scans for Aadhaar card.

The Unique Identification Authority of India (UIDAI) was established by the Manmohan Singh led UPA-II government as an office under the one-time Planning Commission which stands overturned today with NITI Aayog taking its place. Under the BJP government, the UIDAI stands elevated as a statutory authority under the Aadhaar Act, 2016. Under the programme, every citizen is to be provided a 12-digit unique identification number for which biometric information is collected. Aadhaar began well as a technological tool and was put in operation to emerge as a single source identity for all purposes to eventually displace multiple cards. However, it has raised concerns of being misused as a surveillance tool with potential invasion of privacy. The threats to personal data becoming vulnerable stand unanswered. Instances of private companies and non-government entities grabbing biometric information have raised serious privacy and security concerns. This has adverse implications on the right to privacy, democratic rights and constitutional freedoms.

 Compulsory or Voluntary

 The BJP government is bent upon making Aadhaar compulsory through a series of backdoor exercises. The government is consistently maintaining the stand that Aadhaar will be mandatory for citizens for benefits under nearly three dozen central schemes including free mid-day meals for schoolchildren. Aadhaar was also made compulsory for scholarships and other schemes for backward castes and the disabled. This is likely to be extended to school admissions, air tickets, and hotel reservations.

 The Supreme Court has so far countered the moves set in motion by the government holding that the 12-digit Unique Identification number, which requires the holder to part with his personal bio-metric data was a voluntary exercise. The Supreme Court has permitted voluntary use of Aadhaar cards in welfare schemes. A five-judge constitutional bench has put a caveat in its interim order for the Centre and said that Aadhaar card scheme is purely voluntary and not mandatory till the matter is finally decided by the court, this way or the other way. The Attorney General has submitted the undertaking on behalf of the government that "No person will be denied benefits under any government scheme for want of Aadhaar card”.

Aadhaar-PAN debate

 In March 2017, the government through an amendment to the Finance Bill 2017 made Aadhaar or 12-digit unique ID which is backed by biometrics like fingerprints and iris scans mandatory for filing income tax returns and also applying for a Permanent Account Number (PAN). This is despite the government’s assurance to the Constitution Bench that the requirement for Aadhaar would be purely of a voluntary nature for citizens till it took a final decision on whether Aadhaar scheme was a privacy invasion.

An Indian citizen is legally bound to file Income-Tax returns. With the amendment and introduction of Section 139AA to the Finance Bill 2017, lack of Aadhaar card makes a citizen a criminal. The Aadhaar Act aims at voluntariness; the Finance Act makes it compulsory. It means there is no way to file the IT returns for a citizen unless the citizen is prepared to part with biometric data, fingerprints and iris scans for Aadhaar card. Parting of such information for passports, driving licences, property registration, marriage registration are for narrow purposes. Aadhaar card is wide ranging with linkage to IT returns, PAN, Bank accounts and internet banking.

The Supreme Court has heard the petitioners and the government and reserved the verdict. There is a thought that the Supreme Court may keep the hands-off on the plea that the Aadhaar is made compulsory through a parliamentary enactment and not through executive fiat. It is also the prerogative of the government to fix the manner of payment of income-tax by the income tax assessee.  Since the law is applied to all citizens, the ground of being discriminatory sounds hollow.

The verdict would also rest on whether Parliament can enact a provision which changes the basis of an order of the Supreme Court which has ruled that Aadhaar is voluntary and not mandatory. The parent law i.e. the Aadhaar Act which stipulates that enrolment is voluntary, cannot be nullified by tinkering with other laws to negate the parent enactment. In that way, Section 139AA of the Finance Act, 2017 is inconsistent with the parent legislation i.e. Aadhaar Act. In all probability, the Supreme Court would uphold its earlier order of Aadhaar not being mandatory and would remove the infirmity in the Finance Bill.

Right to privacy

Though the government argues that Aadhaar should not be seen in the sinister light of State surveillance, censorship, security and loss of privacy, the weaknesses of the system and failures are out in the open. The Centre for Internet Society (CIS) reported that nearly 13 crore Aadhar numbers were vulnerable and compromised.

Section 29 of the Aadhaar Act limits the sharing and publishing of core biometric information collected. But, instances of private companies and non-government actors getting access to the private information have come to light.

The final curtain on the larger issue of the 12 digit Unique Identification number which includes biometric data in context of right to privacy and constitutional freedoms would fall much later. We will have to wait for the judgment of the Constitution Bench.