Aadhaar

Aadhaar

Aadhaar is once again in the news, with the Parliament passing an amendment bill as well the controversy on the government requiring people to link their social media accounts with Aadhaar.    

Aadhaar Act, 2016

The Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 was enacted to provide statutory backing for transfer of subsidies and benefits to eligible people having Aadhaar (UID) number. It was passed as a money bill, notwithstanding that it did not meet the criteria stated in the constitution.

Major Provisions

Eligibility: 

Every resident shall be entitled to obtain an Aadhaar number.  

A resident is a person who has resided in India for 182 days, in the one year preceding the date of application for enrolment for Aadhaar.

Information to be submitted: 

To obtain an Aadhaar number, an individual has to submit his, 

(i) biometric (photograph, fingerprint, iris scan) and

(ii) demographic (name, date of birth, address) information.  

The Unique Identification Authority (UID) may specify other biometric and demographic information to be collected by regulations.

Enrolment:

At the time of enrolment, the individual will be informed of, 

(i) the manner in which the information will be used, 

(ii) the nature of recipients with whom the information will be shared, and 

(iii) the right to access this information. 

After verification of information provided by a person, an Aadhaar number will be issued to him.

Use of Aadhaar number: 

To verify the identity of a person receiving a subsidy or a service, the government may require them to have an Aadhaar number.  If a person does not have an Aadhaar number, the government will require them to apply for it, and in the meanwhile, provide an alternative means of identification.  

Any public or private entity can accept the Aadhaar number as a proof of identity of the Aadhaar number holder, for any purpose.  Aadhaar number cannot be proof of citizenship or domicile.

Functions and composition of authority: 

The key functions of the UID authority include, (i) specifying demographic and biometric information to be collected during enrolment, (ii) assigning Aadhaar numbers to individuals, (iii) authenticating Aadhaar numbers, and (iv) specifying the usage of Aadhaar numbers for delivery of subsidies and services.  The UID authority will consist of a chairperson, two part-time members and a chief executive officer. The chairperson and members are required to have experience of at least ten years in matters such as technology, governance, etc.

Authentication: 

The UID authority will authenticate the Aadhar number of an individual if an entity makes such a request.  A requesting entity has to obtain the consent of an individual before collecting his information. The agency can use the disclosed information only for purposes for which the individual has given consent.

Response to authentication query: 

The UID authority shall respond to an authentication query with a positive, negative or other appropriate response.  However, it is not permitted to share an individual’s fingerprint, iris scan and other biological attributes.

Authentication record maintained by UID authority: 

The UID authority shall record the entity requesting verification of a person’s identity, the time of request and the response received by the entity.  The purpose for which an individual’s identity needs to be verified will not be maintained.

Protection of information: 

Biometric information such as an individual’s fingerprint, iris scan and other biological attributes (specified by regulations) will be used only for Aadhaar enrolment and authentication, and for no other purpose.  Such information will not be shared with anyone, nor will it be displayed publicly, except for purposes specified by regulations. 

Cases when information may be revealed: 

In two cases, information may be revealed:

• In the interest of national security, a Joint Secretary in the central government may issue a direction for revealing, (i) Aadhaar number, (ii) biometric information (iris scan, fingerprint and other biological attributes specified by regulations), (iii) demographic information, and (iv) photograph.  Such a decision will be reviewed by an Oversight Committee (comprising Cabinet Secretary, Secretaries of Legal Affairs and Electronics and Information Technology) and will be valid for six months.  
• On the order of a court, (i) an individual’s Aadhaar number, (ii) photograph, and (iii) demographic information, may be revealed.

Offences and penalties: 

A person may be punished with imprisonment up to three years and a minimum fine of Rs 10 lakh for unauthorised access to the centralized database, including revealing any information stored in it.  If a requesting entity and an enrolling agency fail to comply with rules, they shall be punished with imprisonment up to one year or a fine up to Rs 10,000 or Rs one lakh (in case of a company), or with both.

Cognizance of offence: 

No court shall take cognizance of any offence except on a complaint made by the UID authority or a person authorised by it.

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The Aadhaar and Other Laws (Amendment) Bill, 2019

It was brought in to replace an ordinance promulgated earlier. 

Major provisions

Offline verification of Aadhaar number holder: 

Under the Aadhaar Act, an individual’s identity may be verified by Aadhaar ‘authentication’.  Authentication involves submitting the Aadhaar number, and their biometric or demographic information to the Central Identities Data Repository for verification.  The Bill additionally allows ‘offline verification’ of an individual’s identity, without authentication, through modes specified by the Unique Identification Authority of India (UIDAI) by regulations.

During offline verification, the agency must (i) obtain the consent of the individual, (ii) inform them of alternatives to sharing information, and (iii) not collect, use or store Aadhaar number or biometric information.

Voluntary use:  

The Act provides for the use of Aadhaar number as proof of identity of a person, subject to authentication.  The Bill replaces this provision to state that an individual may voluntarily use his Aadhaar number to establish his identity, by authentication or offline verification.  The Bill states that authentication of an individual’s identity via Aadhaar, for the provision of any service, may be made mandatory only by a law of Parliament.

Entities using Aadhaar: 

Under the Act, usage of Aadhaar number for establishing the identity of an individual, by the State or a body corporate under any law, is permitted.  The Bill removes this provision. An entity may be allowed to perform authentication through Aadhaar, if the UIDAI is satisfied that it is: (i) compliant with certain standards of privacy and security, or (ii) permitted by law, or (iii) seeking authentication for a purpose specified by the central government in the interest of the State.

Aadhaar number of children: 

The Bill specifies that at the time of enrolling a child to obtain an Aadhaar number, the enrolling agency shall seek the consent of his parent or guardian.  The agency must inform the parent or guardian of the manner in which the information will be used, the recipients with whom it will be shared, and of their right to access the information.  After attaining eighteen years of age, the child may apply for cancellation of his Aadhaar.

Disclosure of information in certain cases: 

• Under the Act, restrictions on security and confidentiality of Aadhaar related information do not apply in case the disclosure is pursuant to an order of a District Court (or above).  
• The Bill amends this to allow such disclosure only for orders by High Courts (or above). 
• Further, under the Act, an officer not below the rank of a Joint Secretary may issue directions for disclosing information in the interest of national security.  
• The Bill amends this to allow such disclosure on directions of officers, not below the rank of a Secretary.

UIDAI Fund: Under the Act, all fees and revenue collected by the UIDAI will be credited to the Consolidated Fund of India.  The Bill removes this provision and creates the Unique Identification Authority of India Fund. All fees, grants, and charges received by the UIDAI shall be credited to this fund.  The fund shall be used for expenses of the UIDAI, including salaries and allowances of its employees.

Complaints: 

Under the Act, courts can take cognizance of an offence only if the UIDAI registers a complaint.  The Bill amends this to allow the individual to register complaints in certain cases, including impersonation or disclosure of their identity. 

The Bill defines the Aadhaar ecosystem to include enrolling agencies, requesting agencies, and offline verification-seeking entities.  It allows the UIDAI to issue directions to them, if necessary, for the discharge of its functions under the Act.

Penalties: 

Under the Bill, the UIDAI may initiate a complaint against an entity in the Aadhaar ecosystem for failure to (i) comply with the Act or the UIDAI’s directions, and (ii) furnish information required by the UIDAI.  Adjudicating Officers appointed by the UIDAI shall decide such matters and may impose penalties up to one crore rupees on such entities. The Telecom Disputes Settlement and Appellate Tribunal shall be the appellate authority against decisions of the Adjudicating Officer.

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Major Judgements related to Aadhaar

KS Puttaswamy Vs Union of India Judgement

It was a landmark judgement, in which a nine-judge Supreme Court Constitutional bench held that right to privacy is a Fundamental Right and it is protected under Article 21 of the Constitution of India. Supreme Court overruled two earlier judgements – MP Sharma case and Kharak Singh case – both of which had ruled that privacy is not a Fundamental Right.

Triple Test of Privacy

The judgement laid down a triple test to check if it invades privacy

1. Legality: if a law exists
2. Legitimacy: if there is a legitimate state interest
3. Proportionality: if there exist a balance between the intended benefits and threat to privacy

Significance of the Verdict

The judgement raised questions on several other laws and judgements, like the now struck down Section 377 of the IPC and the DNA profiling bill. The judgement also serves as the bulwark against privacy policies of many companies and misuse of personal data by Government as well as big companies.

Aadhaar Case Verdict

• In a separate judgement, the Supreme Court upheld the validity of Aadhaar but struck down Section 57, which permitted private entities to avail Aadhaar data.
• Supreme Court also barred phone service providers and Banks from seeking Aadhaar authentication from customers.
• It applied the triple test of privacy and found nothing in the Aadhaar Act that violates the right to privacy of individuals.  

Major highlights of the verdict

• The ruling called Aadhaar “a document of empowerment”
• The ruling has highlighted two main aspects of the unique identification project 
  • Aadhaar as digital identity infrastructure
  • Aadhaar’s application as public infrastructure for various purposes

  Supreme court upheld Aadhaar Act being passed as a Money Bill since Section 7, which mandates that individuals should produce Aadhaar to access social services, subsidies, benefits, etc. is the main provision of the Act.

• Aadhaar is mandatory for filing of income tax returns (ITR) and allotment of Permanent Account Number (PAN).
• CBSE, NEET, UGC cannot make Aadhaar mandatory. It is also not compulsory for school admissions.
• It is not mandatory to link Aadhaar with bank accounts.
• Telecom service providers also cannot seek linking of Aadhaar.
• There is no possibility of obtaining a duplicate Aadhaar card.
• Aadhaar authentication data cannot be stored for more than six months.
• It struck down the National security exception under the Aadhaar Act.
• No child to be denied the benefits of any schemes on not being able to bring their Aadhaar number.

Evaluation 

• Aadhaar Verdict has cleared the Act as not fringing the right to privacy. However, the recent amendment is an attempt to overcome some provisions of the recent supreme court order – such as voluntary use and making secretary rank officer disclose information. 
• Also, linking Aadhaar to social media can lead to censoring and targeting of citizens for posting on social media – a direct infringement of the right to speech and expression. 
• Aadhaar can also potentially lead to profiling of the citizens.
• However, Aadhaar has several benefits including, the JAM trinity – direct benefit transfer, in eliminating exclusion and inclusion errors and avoiding leakage.
• The government should take measures to protect data and respect the privacy of the citizens even while delivering services to the common people.

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