New Delhi: Two government notifications from earlier this week, which essentially mandate that people who avail of the Mahatma Gandhi NREGA scheme and Employees’ Pension Scheme (EPS) must apply for an Aadhaar number, show how the potential negative consequences of making the biometric authentication system mandatory could be softened.

The last six months have been marked by an on-and-off tussle between the Supreme Court, which has ruled that the Aadhaar identification system cannot be made mandatory until it decides once and for all, and various government departments which have pushed ahead with mainstream Aadhaar integration.

Although the Supreme Court extended the voluntary usage of Aadhaar in EPS and MGNREGA schemes in October 2015, the two January 4 notifications are the first inklings of Aadhaar being made mandatory for these two programmes.

A cursory reading of both notifications shows how new regulations put out by the Unique Identification Authority of India (UIDAI), the statutory authority that implements the Aadhaar Act, are influencing how the government is rolling out its Aadhaar push.

The UIDAI’s new regulations – which were formulated just ahead of major Supreme Court hearings, and created in order to address the exclusionary, privacy and security concerns raised by civil society – are primarily three-fold.

Firstly, any government agency that requires an individual to furnish an Aadhaar card will have to ensure his or her enrolment in the event that the individual does not have an Aadhaar number.

Secondly, this duty that the UIDAI imposes on all government departments means that the agencies or ministries in question can themselves become UIDAI registrars and therefore set up enrolment centres at convenient locations in order to hand out Aadhaar numbers to individuals.

Lastly, as UIDAI head Ajay Bhushan Pandey put it, “if a person claims wrongly before the agency that he does not have an Aadhaar to procure a service, his immediate Aadhaar enrolment will exposure the lie. So it addresses concerns of both sides.”

How are these regulations playing out on the ground and how is the government trying to mitigate any possible concerns raised by making Aadhaar a mandatory requirement?

Appeal to CFI

Both notifications start out by appealing to the Aadhaar Act 2016, stating that the funds necessary for both schemes come from the Consolidated Fund of India (CFI) and this is why the Aadhaar card will be made mandatory. This is important because the Aadhaar Act was passed as a money bill under the stated attempt of providing services and benefits funded by the CFI.

The NREGA notification for instance states: “The Mahatma Gandhi National Rural Employment Guarantee Programme (hereinafter referred to as the Mahatma Gandhi NREGA) launched under the provisions of the Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (42 of 2005) involves expenditure incurred from the Consolidated Fund of India”

The EPS notification is identical in this section.

Aadhaar authentication

Unlike the ham-fisted Aadhaar notifications put out by the National Scholarship Portal or the University Grants Commission, the Employees’ Pension Scheme instead asks members and pensioners to “furnish proof of the possession of the Aadhaar number or undergo Aadhaar authentication… (emphasis added)”

In past notifications, like the Indian Railways order, an Aadhaar number has been made mandatory without any provisions or safeguards as to what happens if an individual who requires a service or benefit does not have an Aadhaar card.

For the EPS and MGNREGA programmes, however, proof that the individual has started the process of Aadhaar enrolment is also enough.

EPS for instance states that any member who is “desirous of continuing the benefit of the said Scheme” will be required to make an application for Aadhaar enrolment by January 31st, 2017. The MGNREGA notification is identical in this regard, with the same deadline.

Alternate means of identity

Perhaps the most crucial aspect of how the Aadhaar push is now happening is a provision for “alternate and viable means of identification” until the time an Aadhaar number is assigned to an individual.

The EPS notification for instance states: Provided that till the time Aadhaar is assigned to the said member, the Central Government’s contribution and subsidy under the aforesaid Employees’ Pension Scheme shall be given based on the alternate and viable means of identification as notified by the Employees Provident Fund Organisation subject to the production of the following documents.

What documents does the EPS allow? A wide variety as it turns out. Individuals can give an “identity certificate issued by the employer or field office of the Employees Provident Fund Organisation with the Unique Account Number (UAN) issued by the said organisation.”

People who want to avail of the EPS can also provide an Aadhaar enrolment ID slip or a copy of the request made for Aadhaar enrolment.

If all else fails, the notification says that a voter identity card, PAN card, passport and a driver’s license also count as approved means of identification.

One government official, who had worked on drafting the Aadhaar notifications but declined to be identified, said that offering alternate means of identity until an individual got his or her Aadhaar number “proved that the government was following the Supreme Court’s order”.

Opening enrolment centres

Last, but not least, is that both the Employees’ Provident Fund Organisation and the Department of Rural Development or Panchayati Raj now promise that they will essentially become UIDAI registrars and open up enrolment centres at “convenient locations”.

Both organisations, however, don’t state how exactly this will happen, only that they are legally obligated in order to do so.

“We hope that this will put a stop to all the concerns that Aadhaar is exclusionary. Organisations will now be required to offer enrolment facilities and make sure that any individual who wants to avail of MGNREGA or EPS gets an Aadhaar card,” the official, who was quoted above, said.

The MGNREGA notification for instance says:

As per regulation 12 of the Aadhaar (Enrolment and Update) Regulations, 2016, the Department of Rural Development or Panchayati Raj, (In-charge MGNREGA) under the State Government or Union Territory Administrations is required to offer enrolment facilities for the beneficiaries who are not yet enrolled for Aadhaar. In case there are no Aadhaar enrolment centers located within the respective Block or Taluk or Tehsil, the said Department of Rural Development or Panchayati Raj (In-charge MGNREGA) may provide enrolment facilities at convenient locations in coordination with the existing Registrars of UIDAI or may provide Aadhaar enrolment facilities by becoming UIDAI Registrar.

Multiple experts told The Wire the true impact of this will depend on how effectively various organisations and institutions are able to follow up on this promise.

Whither Supreme Court?

Ultimately, these two notifications show how the Modi government hopes to avoid a Supreme Court showdown and somewhat cushion the impact of making Aadhaar mandatory.

Does an individual not have an Aadhaar card? Mandate a deadline in which he or she applies for one, which lets the issuing authority off the hook if it delays in giving the actual physical card.

No convenient centres for rural individuals to sign up for an Aadhaar number? Force government agencies to become a UIDAI registrar and give him an Aadhaar enrolment slip right away.

What this still doesn’t address is that for EPS and MGNREGA, there is now a firm deadline. While alternate identifications can be showed in the interim period, people who want to avail of the schemes will have to sign up for an Aadhaar number by January 31st and show proof that they have indeed done so.

It also doesn’t take away the fact that other government departments, such as railways, have outrightly made Aadhaar mandatory.

How will this end? The Supreme Court has not yet heard a crucial batch of petitions that question the privacy, security and mandatory concerns of Aadhaar. Some of these petitions were referred to larger bench of justices as far back as August 2015. Although the court slammed private companies for collecting Aadhaar data earlier this week, it refused again to expedite these petitions.

As one lawyer put it, it may be that the Supreme Court “has effectively decided in favour of the govt, not through as reasoned judgement, but by just refusing to decide”.