LAW
26/JUN/2017
The large number of mandatory notifications put out by various ministries are highly susceptible to a legal challenge. Credit: PTI
Yet another day and yet another ministry has made the Aadhaar compulsory. The latest is the ministry of health and family welfare, which has
made the Aadhaar compulsory for all patients suffering from tuberculosis and receiving treatment under the Revised National Tuberculosis Control Programme (RNTCP) run by the government of India.
While the move has, predictably, caused outrage, the notification also demonstrates that bureaucrats within the central government do not understand the true scope of Aadhaar or their own powers to make it compulsory.
No card, but number
A lot of the public commentary surrounding Aadhaar constantly refers to ‘Aadhaar card’. Both journalists and government functionaries seem to be under assumption that Aadhaar is a card. For instance, at the time the mid-day scheme was made compulsory, HRD minister Prakash Javadekar, in
several media statements, kept referring to ‘Aadhaar cards’ for all children. Similarly in the notification discussed above, the ministry of health has referred to Aadhaar as an “identity document” that “obviates the need for producing multiple documents to prove one’s identity”. The notification further states that either “proof of possession” or “authentication” will suffice to receive services. This is the common template followed in the dozens of notifications issued since January making Aadhaar compulsory for various schemes of the government including the notification on ‘right to food’.
The problem with this characterisation of Aadhaar as a ‘card’ or an ‘identity document’ and then framing policies based on it, is the fact that Aadhaar was never conceptualised as a card and the Aadhaar Act, 2016 never uses the word ‘Aadhaar card’. This is not an omission but a conscious decision that was taken at the early stages of the Aadhaar project. In an interview given to the New Yorker in 2011, Nilekani had explained the reason for this conscious decision to restrict Aadhaar to being a number and not a card. Describing the Aadhaar project, the
New Yorker article had stated:
‘Enrollment would be voluntary, and available to all residents. And there would be no I.D. cards – just I.D. numbers. A card, carrying a photograph and other biometric information, can confirm identity offline; it’s a database of one. But cards can suggest authoritarianism, and they create a market, for they can be bought and sold.’
It then quotes Nilekani as follows: “Nilekani called Aadhaar’s decision not to release cards an ‘epiphanic moment’.”
True to his word, the legal framework for the Aadhaar Act, 2016 does not once mention the phrase ‘Aadhaar card’, only ‘Aadhaar number’. The only mention of a card in the Aadhaar framework is in Regulation 15 of the the Aadhaar (Enrolment and Update) Regulations, 2016 which is as follows:
15) Delivery of Aadhaar number. –
(1) The Aadhaar number may be communicated to residents in physical form (including letters or cards)
and/ or electronic form (available for download through the Authority’s website or through SMS).
(2) All agencies engaged by the Authority for printing, dispatch, and other functions related to delivery shall comply with the applicable processes.
In other words, the card that is sent to every person on successful enrolment is a form of communication to all persons of their Aadhaar number. It serves no purpose other than telling a person their Aadhaar number. The law is entirely silent on the legal status of the card or the rights that the card vests in its holder. In other words, possession of an Aadhaar card does not guarantee anything under the law and is a worthless piece of paper.
Authentication process
What the Aadhaar Act, 2016 does is to guarantee rights to a person holding an Aadhaar number provided they undergo ‘authentication’. As per Section 2(c) of the Aadhaar Act, 2016, ‘authentication’ means the following:
‘the process by which the Aadhaar number along with demographic information or biometric information of an individual is submitted to the Central Identities Data Repository for its verification and such repository verifies the correctness, or the lack thereof, on the basis of information available with it’.
There are
two modes of authentication authorised by the Act. The first mode of authentication is the ‘Yes/No’ mode of authentication whereby a number holder could be identified by his demographic (the name of the person) or biometric data (scanning the fingerprint or iris scan of a person) with a simply ‘Yes’ or ‘No’ from the UIDAI. Originally this mode was meant to be the only mode of authentication.
Somewhere along the way,
this policy changed and Section 8 of the Aadhaar Act, 2016 introduced a new mode of authentication whereby on submitting biometric or demographic information of a person against the Aadhaar number, the UIDAI would return demographic information rather than just ‘Y/N’ – ostensibly, this was done for the purposes of enabling e-KYC for private service providers.
In other words, the Aadhaar number is valid only on authentication through one of the two modes described above. Such authentication in real time with the UIDAI through the internet is the basis of the entire Aadhaar project.
