The Lok Sabha and Rajya Sabha have passed the Aadhar Amendment Act and Presidential assent is round the corner. Opening the debate in the Upper House, I summarised my serious opposition under six major heads. These are the core legitimate apprehensions of civil society.

The first head is that to understand what Aadhaar is, it is first necessary to appreciate what it is not and was never intended to be! Two Supreme Court judgments—9 and 5 judges— and a plethora of published material, make it clear that Aadhaar was never intended to be one country, one card, one identity concept. Secondly, it is not an exclusive card. Thirdly, it is not a certificate of truth viz that its holders alone have required proof of identity and not holders of other cards. Fourthly, it is not a tool of exclusion. Fifth, it is not a data collection tool. Sixth, it is obviously not a tool of control, surveillance or snooping by the state. Last but not the least, it was never intended as an authentication tool usable by private agencies/ companies.

From this and from the 5-judge bench of SC, flows the second head viz what Aadhar was intended to be. Aadhaar is simply a voluntary ID that can only be used to avail government subsidies, benefits and services. Not only is it restricted in scope for these three activities alone, but even for seekers/ recipients of these, it is not mandatory.

Thirdly, since Aadhar collects biometric information, it has access to our most personal and sensitive domain viz our physical data. Hence, concerns regarding data transfer & misuse are natural and paramount. It is astonishing & distressing how this government has not attempted to place a Data Protection Act ( DPA) in place first before amending Aadhaar.

This is not just putting the cart before the horse. The cart is almost at the finishing line (Presidential assent) and the horse ( DPA) is still bolted inside! The latest DPA paradigm, the European Union’s General Protection Regulations (GPR) of mid 2018, provides for six distinct, delineated rights ( not mere state discretions or privileges) regarding data viz the rights to confirmation & access, to correction, to data portability, to explanation, to erasure and the right to object. Our own Srikrishna report, languishing for a year with the government, has accepted five of these six ( regrettably leaving out the last). Is this not the most perverse example of the cart before the horse?

Fourthly, the timelines regarding the DPA are suffused with governmental duplicity and doublespeak. After the original Aadhar in March 2016, the government, at clear SC prodding and not suo motu, appointed the Srikrishna Committee in July 2017. The 9-judge privacy SC judgement of August 2017 provided the impetus to the Srikrishna Committee, which submitted its comprehensive report with commendable despatch in July 2018 ( belying the wag’s one-liner that “a Committee is frequently a group of the unfit, appointed by the unwilling, to do the unnecessary!”). The Law Minister ( LM), while receiving the report the same day, gave a commitment to bring in DPA before end of the government’s term. The SC delivered its 5-judge Aadhaar judgement on 26/9/18, pointing out many deficiencies and expressing hope for a quick DPA. On what basis and what logic could the present amendment move an Ordinance in February 2019 without the slightest attempt to bring a DPA in either House? Even now, the Amendment is pushed first without any DPA on the horizon. This is despite the LM repeating shortly after taking oath in May 2019 that DPA is one of his two top priorities. Does this not indicate that the government wants to reap whatever benefits it can of data misuse for as long as possible without a DPA? Would Aadhaar be amended again if and when such a DPA comes?

Fifthly, the majority of the SC in the 5-judge Aadhaar case, in its detailed discussion in paras 318 to 322, repeatedly emphasized that Aadhaar can be used only to avail subsidies, benefits & welfare schemes. It added: “benefits cannot be construed so widely as to mean every activity … no doubt, the government cannot take umbrage under the aforesaid provision to enlarge the scope of subsidies, services, and benefits.” It even read the word ‘benefits’ Ejusdem Generis ie restricted by the words surrounding it viz. subsidies, services or DBT only.

Cut now to sections 24 & 25 of the amendment Act. It provides for use of Aadhaar by telecom service providers as also by banks and financial institutions doing reporting functions under the Prevention of Money Laundering Act ( PMLA). These have nothing to do with subsidies, benefits, welfare or DBT. Merely making Aadhaar ( online or hard copy) as two out of four options in these sections, not specifying the third one ( merely empowering the government to do so) and providing passport as the fourth one ( which a large majority do not possess) does not comply with SC intent which fundamentally restricted use of Aadhaar to “ benefits” from the Consolidated Fund of India, as above restrictively defined.

Sixthly, yet another grand deception arises from Section 57 in the original Act, a blanket provision which said, “nothing contained in this act shall prevent the use of Aadhaar for establishing the identity of an individual for any purpose whether by the State or anybody, corporate or person…” In a long discussion in the Aadhaar Judgment (paras 355 to 367), Section 57 was struck down as unconstitutional, being overbroad. The fastest reincarnation of the same invalid 57 is now found in 5(7) of the current amendment Act, where a similar blanket provision, specifically overriding all other provisions, allows mandatory use of Aadhaar alone if Parliament by any law ( not yet specified) so provides. Sections 24 and 25 discussed above, additionally reflect a similar reincarnation.

Seventhly, someone goofed up while reading the SC judgement. In para 349, while dealing with section 33, the SC, while upholding the section dealing with mandatory disclosure in interests of national security, not only changed the decision-maker from Joint Secretary to a higher level but significantly added, “ There has to be a higher ranking officer along with, preferably, a judicial officer.” The goof-up is that while now designating a Secretary level officer, no judicial element along with has been provided, clearly violating para 349.

Lastly, using “ as Parliament, may by regulations provide,” over 11 times in the amendment Act ( obviously without no such regulation has yet been born), smacks of abdication of exclusive Parliamentary legislative duty and of excessive delegation, which is likely to render the Act unconstitutional.

Recent innovations in the Government’s 2019 Economic Survey, for the first time, are eloquent about the need to monetize data. In this overwhelmingly commercial approach, no one seems to view data as a facet of fundamental human rights. Unless we revert to this equilibrium, I fear, sadly, Aadhaar and its amendments will remain data of the people, for the government by semi-private and private agencies!