New Delhi

More than 1.12 billion Indians -- 88.2 per cent of the population -- have now been enrolled for Aadhaar, the controversial biometric national identity programme. An IndiaSpend analysis of a law that came into effect without much public attention six months ago reveals how the government plans to sign up the remainder of the population.

A November 2, 2016, circular from the Cabinet Secretariat used two sections of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 to make it mandatory for citizens to provide an Aadhaar number to benefit from schemes and services paid for from the Consolidated Fund of India.

This fund, the most important of all government accounts, receives all government revenues and is the source of most government spending. The new Aadhaar law thus brings almost every government expenditure under the Aadhaar ambit.

This comes despite a 2015 Supreme Court interim order that held Aadhaar enrollment voluntary, and in the face of strident civil society opposition over privacy and security concerns that personal information obtained under the programme could be misused, and that already-deprived sections of the population without access to Aadhaar enrolment may be further marginalised.

The 12-digit, biometric Aadhaar unique identification (UID) number, meant to be a voluntary enrolment, will soon be compulsory to receive benefits under 530 welfare schemes and to perform a host of activities including filing income-tax returns, receiving college degrees and obtaining driver's licenses.

Section 7 of the Aadhaar Act, described as a "condition precedent" in the November circular, allows central or state governments to ask those receiving "a benefit, subsidy or service" from the Consolidated Fund of India to furnish an Aadhaar UID as proof of identity.

Section 57 says "nothing contained in the Act" can prevent the use of Aadhaar for establishing an individual's identity "for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect". This allows for Aadhaar to be used as a primary identifier, although the agencies involved must conform to data protection and privacy provisions contained in the law.

The November circular directed all secretaries to the government to ask central ministries and state governments to "expeditiously" identify schemes that can use Aadhaar as "primary identification".

It offered detailed instructions on how to ensure these moves would stick: "In order to do so legally, the ministry/department or other agencies in their jurisdiction should amend their own rules, issue circulars, orders or guidelines under their laws thereby prescribing use of Aadhaar under Section 7 or 57 of the Aadhaar Act, as the case may be."
This contradicts the apex court's March 27, 2017, order that the government can demand enrolment with Aadhaar for accessing general public services, but cannot make it compulsory for claiming benefits under social welfare programmes. "For benefits, it [Aadhaar] cannot be pressed... for non-benefits, it can be done," Chief Justice of India J.S. Khehar said, reiterating the apex court's previous orders that had said Aadhaar would not be mandatory for obtaining benefits otherwise due to citizens.

Although the Unique Identification Authority of India (UIDAI), the statutory body collecting Aadhaar data and issuing UID numbers, claims Aadhaar is a voluntary identification option, the programme's mission statement says Aadhaar is expected to form "the basic, universal identity infrastructure" for "registrars, government and other service providers across the country".

The UID is envisaged as an easily verifiable number unique to each citizen, which will carry biometric and demographic information while eliminating duplication and fake identities. Supporters of the programme rubbish privacy concerns, pointing out the number does not carry details on an individual's religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history -- nothing beyond information contained in other proofs of identity, many of which are in the public domain.

So far, 530 social welfare programmes from 63 ministries -- of nearly 1,200 schemes from 75 ministries -- are ready to be linked to Aadhaar, according to the government's Direct Benefits Transfer (DBT) Mission website.

Started in 2013, DBT is a platform for the government to transfer subsidies and benefits from the Consolidated Fund of India directly into people's bank accounts. The UID programme is expected to play a key role in this.

The DBT has already undertaken "an exhaustive exercise" to identify "approximately 500 schemes" capable of notifying the use of Aadhaar -- in consultation with UIDAI -- under Section 7 of the Aadhaar Act, the Cabinet Secretariat said in its November circular.

In February 2017, around 335 million citizens benefited from DBT and roughly 168 million, or 50 per cent, received their welfare funds and subsidies directly through Aadhaar-linked bank accounts, according to this DBT report. Over 30 per cent of beneficiaries did not receive Aadhaar-linked payments despite holding Aadhaar-linked bank accounts, the report shows.

For non-welfare schemes, apart from filing taxes, Aadhaar will soon be mandatory for, among others:
- the Department of Telecom has moved to make Aadhaar-based e-KYC (know your customer) mandatory for mobile phone connections.

- the University Grants Commission has made it mandatory for undergraduate and graduate students to enroll for Aadhaar if they are to receive their degrees.

- the Road Transport Ministry has revealed plans for making Aadhaar identification necessary for new licences and renewals.

The Act provides for Aadhaar to be the primary identification tool for services that do not use funds from the Consolidated Fund of India, "such as issue of SIM cards, KYC (know your customer identification) for opening bank accounts, pension accounts etc.," the circular said.

Thus, while not declaring Aadhaar mandatory, these laws ensure individuals using government programmes and services provide Aadhaar as proof of identity or furnish an Aadhaar enrolment slip, or provide a temporary photo identification (such as a driver's license or voter identity card) until they get an Aadhaar UID. If the individual has still not enrolled for the UID programme, the agency concerned may even become a UIDAI registrar to help them do so.

Amid controversy and in seeming violation of a 2015 Supreme Court order, on March 22, the Lok Sabha passed the Finance Bill with 40 amendments. One of these includes a clause that makes it mandatory for Aadhaar to be linked to bank accounts and permanent account numbers (PAN) for filing taxes. The Bill also sets a deadline of July 1, after which unlinked PAN cards will be deemed invalid.

The Aadhaar-related aspects of the 2017 Finance Bill, particularly, have sparked controversy because they conflict with an August 2015 Supreme Court order, which had stated: "The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen." The court had specified that the government may not use Aadhaar for "any purpose other than" the Public Distribution Scheme and the LPG Distribution Scheme, and that the information obtained about an individual "shall not be used for any other purpose except as may be directed by a Court for the purpose of criminal investigation."
In October 2015 the court had modified this order to allow Aadhaar to be used for the following schemes too: the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), the National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions), the Prime Minister's Jan Dhan Yojana and the Employees' Provident Fund Organisation. Nevertheless, it had maintained that Aadhaar is "purely voluntary" and could not be made mandatory "till the matter is finally decided by this Court one way or the other".

Yet, in January 2017, the government made Aadhaar enrolment mandatory for beneficiaries of the Employees' Pension Scheme and MGNREGS, having enacted a new Aadhaar law four months earlier to pre-empt a legal challenge. Since then, it has made a growing number of services provided by government agencies and private enterprises conditional on providing one's Aadhaar number.

The November 2016 circular and the accompanying UIDAI guidelines for "notifying the use of Aadhaar" show the government's resolve to use Aadhaar as the "primary identifier" for all schemes and services.

However, the circular says such subsidies and benefits should not be denied to anyone who does not have an Aadhaar number; such persons can provide temporary enrolment details of Aadhaar, or an alternative photo identity card, bank passbook, etc., until an Aadhaar number is obtained.

In a subsequent Cabinet Secretariat meeting on November 24 to discuss notifying Aadhaar for various schemes, the Legal Affairs Department of the Law Ministry "advised" those present that the Aadhaar Act does not "necessarily mandate" issuing a notification for using Aadhaar as a primary identifier. However, UIDAI CEO Ajay Bhushan Pandey reiterated the programme's guidelines, adding that the UIDAI will take responsibility for getting the draft notification vetted by the ministry, the minutes of the meeting show.

(In arrangement with IndiaSpend.org, a data-driven, non-profit, public interest journalism platform, with whom Alison Saldanha is an assistant editor. The views expressed are those of IndiaSpend. Feedback at respond@indiaspend.org)

 

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