Government says it has established a legal bypass with new Aadhaar-related laws
Nitin Sethi | New Delhi
September 24, 2016 Last Updated at 00:30 IST
The National Democratic Alliance (NDA) government’s plan to universalise Aadhaar through schemes, benefits and services of the state may get mired in litigation despite the law and regulations it has put in place in the recent past. A recent Supreme Court order has come as a warning signal of a possible legal imbroglio. The government, however, remains unfazed and is confident of the legal remedy already in place.
The Supreme Court annulled an order of the government, making Aadhaar mandatory in scholarship schemes for students. A two-member bench gave this ruling on September 14, pointing out that the apex court in its interim orders of October 2015 had barred the government from making the identification platform mandatory till pending the litigation was concluded.
It is the first such order by the SC, reiterating the stay on making Aadhaar mandatory after the Parliament passed and the President gave the assent to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, in March this year. The Act became fully operational on September 12 when regulations under it were notified by the Unique Identification Authority of India (UIDAI).
According to the government, the new regulations will help it universalise the use of Aadhaar in all kind of schemes, programmes and processes of the government and provide safeguards to people. Multiple senior officials in UIDAI and the Union government said the new regulations adequately address the concerns raised in the petitions being heard in the court on Aadhaar.
“This particular government order (mandating Aadhaar for scholarships) was inconsistent with the Supreme Court orders as well as the Aadhaar law. So, it needed to be rectified, we agree. The new law itself was not challenged before the court in this particular case,” said an official working on the legal issues around the identity platform.
He explained: “Under the new law and the regulations, we do not use the word ‘mandatory’. The regulations require authorities to ask for Aadhaar against the schemes and if someone does not have it, the agency or authority is required to ensure the person gets enrolled. Till the time he or she enrols, the person will not be denied the benefits,” he said. “So, no one is going to be deprived of the benefits for the lack of Aadhaar,” he emphasised. “But just like you earlier required a ration card for availing public distribution system (PDS), now the government can use this documentation route for identification of beneficiaries. One could not say I do not want a ration card, but I want subsidised rations under PDS. Can one?”
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Those opposing Aadhaar believe the government is surreptitiously making it mandatory by hiding behind the legalese. The net result is the same, they claim — people will be denied benefits if they don’t have Aadhaar. Whether the government’s logic cuts ice with the Supreme Court would be decided when the five-member bench hears a host of petitions, lying before it since the interim orders of 2015. A petition supported by the Congress party questioning concerns of privacy and the passage of the law as a Money Bill in the Lok Sabha is also pending before the apex court, though notices have not been issued in the case as yet.
At the moment, Business Standard could list nine petitions and two interventions pending before the Supreme Court on different issues pertaining to Aadhaar. On the other hand, the Software Freedom Law Centre lists out many dozen instances of alleged violation of the Supreme Court orders in the use of Aadhaar, or of making it mandatory. The UIDAI on September 15 sent a missive to all state and central authorities to identify schemes where Aadhaar would be made compulsory but with the provision that those who don’t have it will be given a chance to enrol. It called it making Aadhaar ‘as a condition precedent’.
Many departments of the Union and state governments began making Aadhaar mandatory before this. For example, in August 2016, the NITI Aayog made it mandatory for NGOs seeking central government grants to submit their functionaries’ Aadhaar numbers. It cited a meeting chaired by Prime Minister Narendra Modi, ordering as much in May 2016. Business Standard reviewed the minutes of these meetings where timeframe was fixed for ensuring universal use of Aadhaar for many government services, including all major social schemes, on a priority basis.
Moreover, Aadhaar as a mandatory requirement has already been infused in schemes such as PDS in several states. Several media reports have shown either its failure to authenticate people’s identity, leading to denial of benefits, or questionable manual overrides, undoing the entire logic of the technology. But that remains a question partly of the inherent failure rates of the biometric technology and of using the technology when the country doesn’t even have the necessary communication and other infrastructure in place, as a recent reply in the Parliament by the government showed.
"In light of the new regulations and the law now in place, any earlier order by different authorities making it mandatory would have to be amended to say yes Aadhaar is required but if someone doesn’t have it, the authority should enrol the person. If he or she still does not enrol then the scheme or law takes its course,” explained one of the officials.
But, Aadhaar as a mandatory requirement has already been infused in to schemes such as PDS in several states. Several media reports have now come in of either its failure to authenticate people’s identity losing to denial of benefits or questionable manual overrides being provided undoing the entire logic of having using the technology in the place. But that remains a question partly of the inherent failure rates of the biometric technology and of using the technology when the country does not have the necessary communication and other infrastructure in place, as a recent reply in the Parliament by the government proved.
