The amendment to the Aadhaar Act brought about by the Narendra Modi government through an ordinance is procedurally and substantially wrong. It was among the last decisions of the government before the announcement of the Lok Sabha elections, and the government tried to effect through the back door what it had failed to achieve through the front door. The Aadhaar and Other Laws (Amendment) Bill, 2018, was passed by the Lok Sabha in its last session but it lapsed because the Rajya Sabha did not pass it. The issuance of an ordinance to give effect to the provisions of the lapsed bill is wrong and improper and is an act of disrespect to Parliament. Even in the Lok Sabha there was scant discussion on the bill. That means, a law that seriously affects the lives of people and their rights has been imposed on them without discussion in Parliament or in public.
Some provisions of the ordinance are in violation of last year’s Supreme Court judgement, which had partially upheld the Aadhaar Act with some conditions and limitations. The judgement had disallowed commercial exploitation of an individual’s biometric and demographic information by private entities. The court had felt that the citizens’ right to privacy would be violated if private parties were given access to their Aadhaar data. The ordinance paves the way for the use of Aadhaar by private parties for physical or electronic verification if people voluntarily part with their Aadhaar details. The condition of consent and volition will not in effect constrain private parties like banks and telecom companies from obtaining and using Aadhaar data. The customers of these companies are dependent on them for services which are essential these days, and so they will have to part with the Aadhaar data even when it is claimed that it is voluntary.
The ordinance bestows greater powers on the UIDAI and reduces Parliament’s power to supervise it. The court had struck down a provision in the Aadhaar Act for disclosure of information when it was sought by an official of the level of a joint secretary. The court had stipulated a judicial review for such disclosure. The government has brought back the provision by replacing joint secretary with secretary and has dropped the requirement of judicial review. There are other elements also in the ordinance which go against the letter and spirit of the court’s judgement. The absence of a data protection law will make the changes made in the Aadhaar Act more harmful. It is improbable that they will be endorsed by Parliament in the coming months. They are sure to be challenged in court and are unlikely to pass judicial scrutiny.