Privacy and Consent: Amendments to the Aadhaar

The draft of The Aadhaar and Other Laws (Amendment) Act, 2019 was introduced in the Lok Sabha on June 24, 2019. It was passed by The Lok Sabha and The Rajya Sabha on July 04, 2019, and July 08, 2019, respectively. It comes under The Ministry of Electronics & InformationTechnology.

As per the Gazette of India, this is “An Act to amend the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and further to amend the Indian Telegraph Act, 1885 and the Prevention of Money-laundering Act, 2002”.

I shall talk about two chief issues that brought this Act to the limelight. The first reason for its hype in the media is the permission accorded by it to the Aadhar holder to voluntarily use their Aadhaar in either physical or electronic procedure to authenticate their identity. The sub-section 6 of point 6, which concerns the amendment of sub-section 3 of section 4 of the principal Act, specifically states that the Aadhar holder has the right to know and chose from other valid means to verify their identity, and that they will not be denied any service for refusing to provide or not having an Aadhaar number. Further, sub-section 7 of point 6 articulates that if the government makes, for any service, the collection of Aadhar details mandatory, none can deny providing the same.

The use of the word voluntary in point 6 in this Act is the point of contention. Essentially, sub-section 7 of point 6, if the government wants you to submit your biometric details, you have no right to refute. It means, if asked for, you cannot deny providing your Aadhar simply because you don’t wish to for whatever reason no matter how valid. So, how is it voluntary?

It is evident that sub-section 6 basically refers to any entity that is not under the ambit of the government. This move is most welcome and positive, especially after telecom companies were reportedly forcibly linking the mobile numbers of their subscribers to Aadhars despite the Supreme Court ruling against such data acquisition by the private entities. But in reality, even after the enactment of this Act, which levies penalty on bodies/individuals indulging in such activities of forceful procurement of Aadhar data, cases of companies refusing to entertain a person upon refusal to provide Aadhar have not ceased. 

Furthermore, reports of services being denied for the lack of Aadhar are commonplace. News of children from poor families being denied admission to schools, elderly people being denied health care facilities, financially backward households being denied ration are some of the very basic necessities of life that are causing problems to a large section of the society only because they do not have Aadhar. These people are mostly not educated enough to understand and solve such legal matters. It is that unfortunate section of the society which has to live on a daily-wage basis. Their fight is for food. The Government must make sure that the implementation of the law as described in written takes place at the ground level. Merely passing a law is not the solution.

There is inherent ambiguity in the interpretation of the law. The term voluntary is misleading to the general intellect and common perception because “voluntary use” as described in the explanation provided therein refers to “informed consent” of the Aadhar holder. In essence, “informed consent” means you have to forcibly nod your head in approval. As per the law, voluntary consent basically implies that the vendor, which may be government or non-government, has to mandatorily inform you that they wish to use your Aadhar details.

The simultaneous use of the word consent in the explanation to sub-section 3 and the refusal to right to denial in sub-section 7 is a perfect example of the trickery that legal entities employ to keep a window open for manipulation. Such wording is also employed as a tool to confuse and misguide people so that they can be easily fooled and ruled.

The right to denial to only the non-government organizations does not end the worry of privacy and confidentiality. After all, the Government can be the gloomiest evil of them all! Besides, there is no data protection legislation in the country. But then, we have to keep faith in our government. Life is all about keeping trust and hoping that it will not be betrayed. We cannot be so pessimistic. 

Hoping the country is in safe hands....

Moving ahead with the second reason, an unintelligible feature of this law is the provision, as mentioned in point 5, to allow an Aadhaar holder child to make an application to the Authority, within a period of six months of attaining eighteen years of age, for cancellation of their Aadhaar. Is it not against sub-section 7 of point 6? How will such a child, in the future, be eligible for government schemes and facilities, such as banking services? As of the time of this writing, December 31, 2019, is the last date for linking the Aadhar to the PAN card. What would happen to such people who have their Aadhar cancelled? What if every child after turning 18 cancels their Aadhar? Will not the Aadhar scheme fail in its motive?

There is no denying that Aadhar is a beneficial scheme if implemented properly and with the right intentions. The Government has taken the right step towards assisting citizens from the harassment of some frivolous entities. Having said that, the Government ought to draft policies that are clear-cut with such word usage that may not be interpreted in more than one way. Too many lawyers in the Parliament!

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