The New Aadhaar Amendment Bill: Whither Right to Privacy?

The Bill, which, has since been pending before the Rajya Sabha, has met criticism from various quarters for lacking public consultations, and for apparently infringing on citizens’ rights to privacy.

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On January 4, 2019, the Lok Sabha passed the Aadhaar and Other Laws (Amendment) Bill, 2018, without much discussion over the merits of the same. The new amendment Bill enables continued use of the already built-up Aadhaar ecosystem, which has since received a significant blow due to the judgment of the Supreme Court in K.S. Puttaswamy v. Union of India upholding privacy as a constitutionally protected right. The Bill, which, has since been pending before the Rajya Sabha, has met criticism from various quarters for lacking public consultations, and for apparently infringing on citizens’ rights to privacy.

New additions to the Aadhaar Act

The new Bill makes over 25 amendments to the already existing Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, including establishing rules for use of Aadhaar authentication by private entities and voluntary use with informed consent.

“For instance, it specifies that Aadhaar number holders can voluntarily use their Aadhaar numbers to authenticate their identity for various purposes.”

In addition, it even amends Prevention of Money Laundering Act 2002 and the Telegraph Act 1885 to state that banks and financial institutions and telecom companies respectively can use Aadhaar to verify the identity of their clients through offline verification (this includes QR codes) or authentication as well as by documents that may be notified by the government, including documents like Voter ID or Passport. Thus, the Bill aims to provide alternatives to Aadhaar.

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Additionally, UIDAI can authorise entities, be it by the State or by corporate bodies to authenticate identity using Aadhaar if it is satisfied that the entity is compliant with requisite standards of privacy and security, as well as for a purpose specified by the Central Government in the interest of the state. In addition, guidelines have also been laid down to ensure that informed consent is given, and that consent of a competent parent or guardian will be sought before assigning Aadhaar numbers to children.

Further, the Bill amends the Act to allow such disclosure on directions of officers not below the rank of a Secretary, as opposed to a Joint Secretary in the existing act. An adjudicatory mechanism involving officers, appellate tribunals and a final appeal to the Supreme Court also have been established. In addition, an amendment to Section 33 of the Act directs that a judicial officer, such as a judge of a High Court may preferably be involved in orders for disclosure of information for the purpose of national security.

Violating Puttaswamy, Altering Rights

Most of the above provisions, however, have come under criticism from various quarters, as being violative of the Supreme Court’s decision in K.S. Puttaswamy made in September 2018. The majority opinion in the said case is vague in suggesting changes on several occasions. However, there are certain aspects which have been unequivocally declared, and the current Bill supersedes them, thus violating the judgment.

“For instance, the majority opinion authored by Justice A. K. Sikri unequivocally mentions that the provision allowing corporate bodies or individuals to seek authentication based on a contract would impinge upon the right to privacy of the individual.”

This, very clearly shows that private bodies are not to use Aadhaar for authentication. In addition, it also mentions that it should be voluntary and backed by legislation unless it involves the drawing of subsidies or public distribution services. Private companies are to be completely barred even if informed consent is obtained, due to the very nature of the data collected. The provision for private companies to use such data becomes problematic due to this.

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Further, if the government does not notify alternatives to Aadhaar (keeping in mind that passports are possessed by a comparatively smaller fraction of the population), Aadhaar would in effect become compulsory – defeating the very purpose of voluntariness and informed consent. Even more troubling is the fact that despite the judgment specifying very clearly that there is a need of application of judicial mind for disclosures under Aadhaar Act, the new Bill, makes it merely preferable, rather than compulsory for a judicial officer to be involved in such an order, completely disregarding the Supreme Court’s conclusions.

Whither Privacy?

In the nine-judge bench decision in Puttaswamy affirming the Right to Privacy, the Supreme Court laid down a three-pronged test for any abridgment of the right to privacy, stating that the law should be narrow, bring out the aim of the state that is attempted to be met and that means used are proportional. The current amendments do not mention what state aim is being met by the addition of the said clauses to the erstwhile act.

“The Bill completely disregards the nuanced discussions surrounding consent, and the nature of private use of biometric data, effectively paving the way for Aadhaar to continue its dominance as a National ID.”

By allowing private bodies, practically mandating authentication and removing judicial power from orders of disclosure, the decision violates the three-pronged test laid down earlier, thus effectively violating Indian citizens’ rights to privacy. Voluntary use cannot alone protect privacy, due to the pervasive nature of Aadhaar, thus laying down the path for corporate bodies and the state to have more oversight of the sensitive personal data of individuals.

However, the Bill, moved by Law and IT Minister Ravi Shankar Prasad in the Lok Sabha, does ban the storage of sensitive personal data such as biometric information as well as the UID by private service providers, in case the ID is voluntarily given by the customer. “We are not violating the Supreme Court judgment, but Parliament has the authority to move a Bill based on the judgment. Aadhaar doesn’t breach privacy,” he was quoted saying.

The Rajya Sabha members must consider these varied aspects before passing the Bill, as it would affect the rights of millions of citizens.