Last week, the Union Cabinet `approved` the promulgation of the Aadhaar and Other Laws (Amendment) Ordinance, 2019, which will come into force after it is promulgated by the President.

The Ordinance proposes the same amendments as those contained in the Aadhaar Bill, 2018, which had been passed in the Lok Sabha this January. Most importantly, despite deleting section 57, the Ordinance re-introduces private sector use of the Aadhaar infrastructure through the back door through amendments to the Telegraph Act and the Prevention of Money Laundering Act. This flies in the face of the Supreme Court’s judgment striking down section 57 on the ground that that permitting private entities from availing authentication services on the basis of a purported agreement with individuals would “enable commercial exploitation of an individual biometric and demographic information by the private entities.”

It also undermines the Government’s own argument (and the basis of the majority judgment upholding the Act), that the Aadhaar Act could be passed as a Money Bill since a “part of Section 57 has already been declared unconstitutional whereby even a body corporate in private sector or person may seek authentication from the Authority for establishing the identity of an individual.”

The Ordinance further ignores the Court’s observations that to avoid possible misuse, “a Judicial Officer (preferably a sitting High Court Judge)” should be associated with the power to disclose sensitive biometric information in the interest of national security under section 33(2) of the Act. Instead of adding a requirement of judicial oversight, the Ordinance simply changes the rank of the official authorised to enable such disclosure from that of Joint Secretary to the more senior role of Secretary.

The decision to approve the Ordinance reflects the Cabinet’s satisfaction under Article 123 of the Constitution, which deals with the power of the President to promulgate an Ordinance during Parliamentary recess. Article 123 permits such a promulgation only when the President is satisfied that circumstances exist that render it “necessary” to take “immediate action”. The use of the word “necessary”, as opposed to “desirable” is significant since it conveys a sense of urgency – that it is imperative to take action, even though Parliament is not in session. The timing of the Aadhaar Ordinance thus, is particularly notable, since it comes on the heels of the Aadhaar Bill lapsing in the Rajya Sabha, and just before the elections.