A renewed attack on privacy: on Aadhaar
Mains Paper 1: Polity
Prelims level: Aadhaar Bill
Mains level: Indian Constitution- historical underpinnings, evolution, features,
amendments, significant provisions and basic structure
- The Lok Sabha, without any attendant discussion, passed the
Aadhaar and Other Laws (Amendment) Bill, 2018.
- The Bill flagrantly flouts both the Constitution and the Supreme
Court’s judgment which gave the Aadhaar programme a conditional imprimatur.
- It is therefore entirely likely that the government is banking on
a sense of political fatigue having set in over the project, and perhaps it
believes it has made the programme so ubiquitous that a few additional
legislative tweaks are unlikely to shock and jolt the dissenters.
- The present move is so brazen that we will be failing in our
collective duties were we to allow the amendments to be carried out without
- If enacted, the law will once again allow private corporations,
including banks and telecom operators, to use Aadhaar as a means to
Between September and now
- There is no doubt the Supreme Court’s judgment, delivered last
September, enjoined Parliament to make certain specific legislative changes.
- To that end, some of the court’s concerns are addressed by the
Bill, such as the inclusion of a clause intended at ensuring that children
are not denied benefits on account of a failure to possess Aadhaar.
- The essential object of the law is to countermine those portions
of the judgment that the regime deems inconvenient.
- This policy places an onus on the ministry introducing a law to
publish the draft of any proposed legislation, together with, among other
things, the objectives behind the law and an estimated assessment of the
impact that such legislation may have on fundamental rights, and to
thereafter invite comments from the public.
- The Bill, which makes amendments not only to the Aadhaar (Targeted
Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016,
but also to the Indian Telegraph Act, 1885, and the Prevention of Money
Laundering Act, 2002 (PMLA), was introduced without any prior consultation,
leading to a credible belief that the proposed changes are an act of
- Section 57 of the Aadhaar Act allowed both the state and private
entities to use the programme to establish an individual’s identity pursuant
to a law or a contract.
- It was on this basis that various notifications were issued
allowing corporations of different kinds, including telecom operators,
e-commerce firms and banks, to use Aadhaar.
- But when the Supreme Court ruled on the validity of the
legislation, although it upheld vast portions of the law through a 4:1
majority, it unanimously struck down Section 57 insofar as it applied to
- Justice A.K. Sikri, in his judgment for the majority, wrote: “Even
if we presume that legislature did not intend so, the impact of the
aforesaid features would be to enable commercial exploitation of an
individual biometric and demographic information by the private entities.
- This part of the provision which enables body corporate and
individuals also to seek authentication, that too on the basis of a contract
between the individual and such body corporate or person, would impinge upon
the right to privacy of such individuals.
- This part of the section, thus, is declared unconstitutional.”
- Section 57 the opinion is unequivocal.
- The provision allows private companies the authority to
authenticate identity through Aadhaar, even by securing an individual’s
informed consent, the clause, Justice Sikri held, disproportionately
contravened the right to privacy.
- Since the Supreme Court has found that the operation of Aadhaar by
private entities violates fundamental rights, there is today no avenue
available for fresh legislative intervention, unless the government chooses
to amend the Constitution.
- In any event, the proposed legislative amendments virtually seek
to impose Aadhaar as a prerequisite for the availing of certain basic
- The amendments proposed to the Telegraph Act and the PMLA state
that service providers telecom companies and banks, respectively, ought to
identify their customers by one of four means: a
- Authentication under the Aadhaar Act; offline verification under
the Aadhaar Act; use of passport; or the use of any other officially valid
document that the government may notify.
Issue of fraud
- Therefore, if the government fails to notify any new form of
identification, a person’s identity will necessarily have to be
authenticated through Aadhaar or through her passport.
- Given that only a peripheral portion of India’s population possess
passports, Aadhaar is effectively made compulsory.
- Allowing private corporations to access and commercially exploit
the Aadhaar architecture, as we have already seen, comes with disastrous
- The evidence of reports of fraud emanating out of seeding Aadhaar
with different services is ever-growing.
- The amendments not only fly in the face of the Supreme Court’s
verdict but are also wholly remiss in attending to the dangers both of
slapdash data protection and of corruption and scamming.
- There is a hatful of other concerns, including the re-introduction
of a marginally refurbished Section 33(2).
- In its original form, the clause had allowed an officer of the
rank of Joint Secretary to the Government of India to direct disclosure of
Aadhaar information in the “interest of national security”.
- The Supreme Court declared the clause unconstitutional and ruled
that while disclosure in the interest of national security may be important,
such disclosure should spring out of a request of a “higher ranking
- What is more, in order to avoid any misuse of the provision,
requests of this kind, the court held, ought to require separate scrutiny,
and, therefore, “a Judicial Officer (preferably a sitting High Court judge)
should also be associated with” the process.
- However, the Bill merely seeks to substitute the words “Joint
Secretary” with “Secretary” in Section 33(2), completely disregarding the
Supreme Court’s order demanding inquiry by a judge.
- The Bill seeks to pave the path for Aadhaar to permeate through
every conceivable sphere of human activity, transferring all authority over
- In the process, from the citizen to the state, and, in many cases,
from the citizen to private corporations.
- The Rajya Sabha, therefore, should resist any developing sense of
ennui around the programme, and reject this Bill, for the utter contempt of
democracy that it represents.
Q.1) With reference to Udhyog Aadhar scheme, consider the following
1. It is a facility by which any unregistered company gets a 12 digit unique
ID to become a legal entity.
2. The scheme was notified by the Ministry of Industry and Commerce
Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2
Q.1) Why the new Aadhaar Bill is a matter of privacy concern?