A little over five months ago (on September 26, 2018), the Supreme Court rendered its landmark verdict on the Aadhaar Act, declaring, among other things, the use and commercial exploitation of biometric and demographic information of individuals by private entities as unconstitutional. The court also called upon the Union of India to set up a robust data protection regime on the basis of the Justice Srikrishna Committee Report.

The Aadhaar and Other Laws (Amendment) Bill, 2018 was passed by the Lok Sabha complying with certain directions of the Supreme Court, but, unfortunately, also doing exactly what the court said the government could not do. The seriously flawed bill ought to have been referred to a select committee but lapsed with the close of the last session of Parliament. It has now been simply promulgated as an ordinance. This was a hasty step; the bill should have been re-introduced after the new Lok Sabha assembled a few months from now.

The frequent and indiscriminate use of the ordinance route is a matter of serious concern with almost 60 ordinances promulgated in the past five years. Last year, a seven-judge bench clarified that an ordinance, by its very nature, has a limited life and cannot bring about consequences for the future in terms of creation of rights, privileges, liabilities and obligations, which will enure beyond the life of the ordinance. The Aadhaar ordinance does just that.

Article 123 empowers the President to promulgate an ordinance when "there are circumstances that render it necessary for him to take immediate action". What was the need to take immediate action when data protection legislation is still not in place and the Aadhaar bill required at least 11 sets of rules and regulations to be prepared?

The ordinance once again enables private entities to use Aadhaar by creating what is now called the 'Aadhaar Ecosystem', which will include "any other entity or group of entities as may be specified by the regulations". The newly introduced "offline verification" reduces the Aadhaar system to any other identity card system, where simply producing the document is enough. This goes against the basic idea of the uniqueness of biometrics involved in the Aadhaar sytem.

The shocking paradox of the Aadhaar journey was that it was theoretically voluntary, though, by a series of orders, the Supreme Court directed that it could be made mandatory for only six services. In brazen defiance of these orders, the Aadhaar card became mandatory for almost every human activity-from obtaining a birth certificate to a death certificate. It became the single method of identification and replaced all existing modes such as a pension card and even the ration card. Unfortunately, a series of contempt petitions were never taken up for hearing and the flouting of the court's orders was simply and regrettably ignored despite the Supreme Court being informed about it.

Mercifully, the indiscriminate use of Aadhaar is now over, but the ordinance has covertly made Aadhaar virtually compulsory by making amendments to the Telegraph Act and the Prevention of Money Laundering Act. Now, telecom companies and banks may use three forms of authentication to identify customers: i) Aadhaar (online and offline), ii) passport and iii) any other officially valid document "as may be notified by the central government in this regard". The reference to a passport is deliberate.

As only about 6 per cent of India's population has a passport, Aadhaar will become the only mode of identification for using your bank accounts and mobile phones. If the central government simply does not notify any other "officially valid document", the "voluntary" Aadhaar becomes mandatory. It is also significant that there are no clear provisions to enable an Aadhaar card holder (except children when they attain the age of 18) to opt out of the system and have all the data hitherto collected deleted by banks and other authorities.

The Aadhaar ordinance is a misuse of constitutional power. Several concerns raised by the Supreme Court remain unanswered and the ordinance merrily proceeds to do what was held to be unconstitutional. This will only trigger another round of wholly avoidable litigation.

Arvind Datar is a senior advocate, Madras High Court.