02/01/2019 6:06 PM IST

Aadhaar Amendment: Government Chooses Companies Over Citizens

Rather than bringing in the strong data protections that it promised, the government has rushed an over-broad Aadhaar amendment to bring it back into the hands of businesses, say experts.

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BENGALURU, Karnataka—Mere months after the Supreme Court of India struck down provisions of the Aadhaar Act, stopping businesses from using the controversial biometric identity system, the BJP government has pushed an amendment into the Parliament to allow companies to ask for your Aadhaar once again.

The government has long promised to create a strong privacy regime with the Personal Data Protection bill to ensure citizens can control how their personal data is used, but there has been little progress since the draft bill was released in July. Instead the government has sought to amend the Aadhaar Act to help private companies, rather than protect citizens.

By enabling businesses to use Aadhaar, systems such as eKYC (used for linking your SIM card and your bank account to your Aadhaar) it makes life easier for companies such as, for instance, Reliance Jio, which relied hugely on eKYC to grow as fast as it did. You can read the full text of the new bill here.

Why the haste to bring Aadhaar back? Anivar Aravind, a techno-legal activist and Executive Director of Indic Project, shared a series of posts on Twitter where he posited that the growth of Aadhaar was also the keystone underlying the BJP’s Digital India vision. “BJP lost its whole 5 year digital india talking point—JAM (Jandhan Aadhaar & Mobile),” he wrote.

“Jandhan is gone since linking is gone and banks can’t do Aadhaar authentication. Aadhaar is limited and not usable for private parties. Mobile Aadhaar linking is gone. Review petitions on Aadhaar judgments are coming up and it is expected to hear prior to 2019 elections. This hurried Aadhaar Amendments Bill is another desperate attempt by government.”

Introduced despite opposition

The Aadhaar amendment bill was opposed by Saugata Roy of the Trinamool Congress, and Sashi Tharoor of the Congress. Roy said that the bill is in contravention of the Supreme Court’s judgement, which struck down section 57 of the Aadhaar Act, and prohibits the private use of Aadhaar. He also argued that the new bill will allow private entities to hold Aadhaar data when they are no longer allowed to do so after the Supreme Court judgement, and stated that the bill was introduced without public consultation.

The Government has deprioritised it’s work on a Privacy and Data Protection Bill in order to push through an overbroad Aadhaar Amendment Bill

Tharoor said that the government had said in court that they would bring a Data Protection Bill and enact it—but instead prematurely brought an amendment bill; he then asked Minister Ravi Shankar Prasad to withdraw this bill.

Kerala MP NK Premachandran also opposed the motion, and said that the Aadhaar amendment bill unlawfully delegates too much power to the executive branch on Aadhaar usage, authentication, taking away from the legislature.

Despite this, the bill was introduced with no further discussion, in a move that some said was reminiscent of the way the Aadhaar Act of 2016 was introduced as a money bill.

“The Government has deprioritised it’s work on a Privacy and Data Protection Bill in order to push through an overbroad Aadhaar Amendment Bill—and repeated the same mistake of doing this without public comment that caused litigation on the Aadhaar Act,” noted Raman Jit Singh Chima, Asia Policy Director at Access Now, an international non-profit, human rights, public policy, and advocacy group.

“The Bill is attempting to work around the SC judgment’s clear restrictions on private sector usage of the Aadhaar ecosystem—which the SC justified on fundamental rights grounds as well as the fact that the government argued that the Aadhaar Act was only for better public sector spending (in order to justify it as a Money Bill).”

‘Speaks to legislative priorities’

The lack of public consultation, and the focus on private parties was also brought up by lawyer Apar Gupta, who is the Executive Director of the Internet Freedom Foundation. He noted, “This bill did not have any public consultation and will restore — the ability of private entities to utilise Aadhaar (which was struck down by the Supreme Court). This speaks to the legislative priorities of the Government where it still has not laid out any clear roadmap for the Data Protection or Informational Privacy legislation. It’s fairly clear Aadhaar Protection comes first and the Government unwilling to compromise.”

Gupta added that without transparency and public consultation, the bulldozing of legislation close to a New Year break shows that there is no spirit of compromise, or compliance. This is particularly concerning when one looks back at how Aadhaar has been put to use over the years, in the absence of a privacy regulation.

The Aadhaar has been linked to government surveillance, and police officials have talked about how it can be used to power a national face-recognition system to track down anyone caught on camera. It’s been responsible for starvation deaths, and voters being removed from the rolls.

The first press conference after the SC judgment (by Arun Jaitley) was largely intended to assuage private parties who suddenly had their favorite new toy snatched away from them.

Chima also pointed out that the amendment does not fix issues that have been raised about the Aadhaar so far. “There are no improvements to the independence and accountability of the regulatory architecture of Aadhaar—the UIDAI is not made more accountable to citizens or pushed to be more autonomous of governmentt or UIDAI CEO priorities.”

Rethink Aadhaar, a prominent collective that has voiced concerns about the Aadhaar also issued a statement about the amendment. It said that the government is in contravention of the Supreme Court’s judgement on Aadhaar, and that the amendment may allow private entities to hold Aadhaar data in disregard of the judgement.

It also noted that privacy and security concerns with Aadhaar remain unaddressed, while the bill lacks any public consultation. It also noted that the government may try, once again, to bypass the Rajya Sabha. The upper house had voted in 2016 to curtail businesses from using Aadhaar, following which the government took the Money Bill route. In the dissenting Supreme Court judgement, Justice Chandrachud termed this a “fraud on the Constitution.”

Raghu Godavar, an activist with Rethink Aadhaar, said that in some ways, this amendment was expected. “The first press conference after the SC judgment (by Arun Jaitley) was largely intended to assuage private parties who suddenly had their favorite new toy snatched away from them. What’s truly galling is that they’ve tried to make up for the loss of Section 57 by a clause mandating Aadhaar authentication for any service if required by a law of Parliament (subclause 7 of Clause 5 of the Amendment),” he said.

At a press conference immediately after the Supreme Court judgement on September 28 2018, Finance Minister Arun Jaitley suggested that the court had purely “procedural” opposition to private parties using Aadhaar authentication.

What comes next?

“Now that this is a bill, we will work to provide a clause by clause rebuttal so as to provide a strong argument against the passage of the bill. We’ll likely have to contemplate going back to the SC for an immediate injunction if this should pass into law. There is also the concern that the government might take the money bill route again, so we need to be prepared for that as well,” Godavar said.

The challenge for activists and lawyers at this point will be to keep the momentum up despite a long-running struggle with no end in sight. However, Godavar remains optimistic, and said, “A point we often make is that for the longest time, the pending SC hearing was a weight refusing to go away. Now that that weight is off, we are free to contemplate action afresh. Many cases were stuck for hearing in various HCs pending the SC judgment, now that will move forward.”

And although some might imagine that public support is flagging after a long struggle, Godavar also told HuffPost India that the opposite was in fact true. “On the contrary, more have reached out, with more direct lines of support. Even yesterday the first two calls I got were from folks who were downright angry and wanted to contribute in some way.”