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Concerns with proposed changes in Aadhaar Rules enabling private sector use of Aadhaar

Article 21 Trust collaborated with Rethink Aadhaar, Internet Freedom Foundation (IFF) and Access Now to jointly submit comments on the proposed amendment to the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020. The Ministry of Electronics and Information Technology, on 20th April 2022, released the draft of the proposed amendment and invited comments from the public. It is important to note that the Ministry undertook consultation only for 15 days as against the mandate of Pre-Legislative Consultation Policy, 2014 which requires a minimum of 30 days to enable a proper study, analysis and deliberation by stakeholders on any proposed law. The Ministry also invited comments only through the MyGov portal which accepted submissions limited to 5000 characters which would not have enabled a comprehensive submission, Hence we emailed our detailed submission to the Ministry.

The Aadhaar project, one of India’s most ambitious projects has been marred with controversy since its inception. Its constitutionality was challenged before the Supreme Court of India on several grounds such as being in violation of the right to privacy, the right to freedom of dignity, life and liberty, and being discriminatory in nature. The Apex Court in KS Puttaswamy vs. Union of India (2019) 1 SCC 1 upheld its constitutionality by 4:1. Section 57 was struck down as being unconstitutional and against the mandate of the Privacy Judgment and curtailed the use of Aadhaar for the limited number of purposes mentioned under Section 7 of the Act and private entities were completely prohibited from using it.

Now, the Government, through the proposed amendment to these Rules, has made an attempt to nullify the judgment of the Supreme Court on the issue of access to Aadhaar for Authentication by private entities. The expansion of Aadhaar, through executive rulemaking, is of grave concern.

Some of the concerns with the proposed Rules are highlighted here:

  • It is a colourable exercise of rule-making power. As we have mentioned above, the proposed rules are in violation of the Aadhaar Judgment of the Supreme Court which expressly limited the use of Aadhaar authentication only by Government entities.

  • The Court Struck down S. 57 for being violative of the right to privacy and enabling commercial exploitation. Rule 3 of the Draft Rules is in flagrant violation of the judgment and will aid the surveillance by the State through snooping.

  • The proposed Rules are beyond the scope of the parent legislation and therefore can not define the purposes beyond the ambit of the law. Rule 3 therefore also violates S. 7 which limits the use of Aadhaar authentication to the receipt of subsidies, and benefits services funded by the Consolidated Fund of India.

  • Rules fail the proportionality test developed by the Supreme Court in Privacy Judgment.

  • The Rules, in the guise of being voluntary in nature, are in fact mandatory as they provide no guardrails against the private entities seeking to use Aadhaar for authentication and lack a mechanism to ensure informed and voluntary consent from the individuals.

  • The UIDAI has failed to address the concerns flagged by the CAG in relation to the Aadhaar authentication. Allowing private entities before addressing those concerns will jeopardise the safety of the Aadhaar holders.

Therefore, the proposed Rules must be rejected as being violative of the Constitution of India and must not be adopted.

To read our complete submission, please click here:

Final Draft on Aadhaar Submission
Download PDF • 165KB

Oped in Indian Express: The proposed amendment to Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020 bypasses the Supreme Court's Aadhaar Judgement that prohibited private entities from using Aadhaar for identification:

Writing for the Indian Express, Maansi Verma and Praavita Kashyap, trustees of Article 21 Trust noted with concern how the Government is trying to circumvent the Supreme Court order through colourable legislation by widening the scope of the Aadhaar project. They noted that the judgment in KS Puttaswamy vs. Union of India (Aadhaar) while upholding the validity of the Aadhaar Act had drawn certain redlines around its uses. However, the Government, subsequent to its electoral victory, made amendments to the Aadhaar Act in 2019 to allow “voluntary” verification or Aadhaar authentication of users by banks or telecom service providers. This was instantly challenged before the Supreme Court and pending adjudication. The majority judgment had limited the mandatory use of Aadhaar for welfare services, which was criticised as being exclusionary in nature.

They also noted that while the use of Aadhaar was upheld for welfare services, Section 57 was read down in toto by the Apex court for being violative of the right to privacy as it specifically enabled private entities to use Aadhaar for establishing identities.

They pointed out that in 2020, the Government notified Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020, without public consultation, which enabled the Government entities to use Aadhaar authentication for purposes such as good governance, enablement of innovation etc. Now the rules are being amended to enable private entities to request Aadhaar authentication for new purposes such as promoting ease of living for residents among other things. Incidentally, the rules have failed to define these purposes and how will private entities seeking Aadhaar number of citizens for identification enable better services has not been explained. They bolstered their arguments by pointing out that the Aadhaar system is creaky and vulnerable to fraud. They urged the government to address issues such as fraud related to Aadhaar before expanding its use.

To read the complete article, please click here

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