The Central Government on January 2, 2019 introduced Aadhaar and Other Laws (Amendment) Bill 2018 (the Bill) to modify the existing laws (Aadhaar Act,2016; the Indian Telegraph Act,1885 and the Prevention of Money Laundering Act, 2002) in tune with the judgment of the Supreme Court in Puttaswamy case, WRIT PETITION (CIVIL) NO. 494 OF 2012, which had upheld the constitutional validity of ‘Aadhaar’ but limited the scope of the controversial biometric identity project, ruling it as, not mandatory for bank accounts, mobile connections or school admissions.
It had also held in the Puttaswamy case that, there was nothing in the Aadhaar Act that violated right to privacy of an individual and had cleared the use of Aadhaar for welfare schemes. The court had held that Aadhaar will remain mandatory for the filing of Income Tax (IT) returns and allotment of Permanent Account Number (PAN).
The salient features of the bill are as follows:
- Section 5(3) of the bill allows the use of Aadhaar for authentication and offline verification on a voluntary basis (including for private services).
- Section 4 of the bill explicitly prohibits denial of services for children and others unable to authenticate because of age, infirmity or illness.
- Section 3 talks about alternate 12-digit virtual ID as a privacy measure to secure the Aadhar number disclosure.
- Amendments to Section 33 of the Aadhaar Act, which allows disclosure of Aadhaar information in certain circumstances seems to be ostensibly inserted to comply with the Supreme Court’s directions.
- Section 30 of the Bill specifies a civil penalty of up to Rs 1 crore for contravention of the Aadhaar Act by any one part of the “Aadhaar ecosystem”.
- Amendment of the Indian Telegraph Act and the PMLA in Section 24 and 25 of the Bill to specify Aadhaar as a mode of verification for clients for mobile services and financial services (banks) respectively.
- Section 23 of the bill deletes Section 57 of the Aadhaar Act which was the old provision used to link Aadhaar to private services.
- As per Section 12 of the Bill, the authority who can issue orders to disclose Aadhaar information has been proposed to be changed as ‘High Court judge’ from ‘District Judge’ as per Section 33(1).
- The Bill proposes a new chapter VIA specifying civil penalties for collection, use, and disclosure of Aadhaar information in contravention with the violation of the provisions of the Act. Cognizance can now be taken on a complaint of the holder of Aadhaar number. TDSAT & SC are being proposed as appellate authorities to try the cases on civil penalties.
The matter now will be presented to the Rajya Sabha, after the Lok Sabha passed the bill despite its introduction being opposed by MPs Shashi Tharoor, NK Premachandran and Sougata Roy.
- Aadhaar Authentication for Private Services- Even though the Supreme Court judgement in Puttaswamy’s case had struck down making Aadhaar authentication as compulsory by private entities, in the current bill it has been added back with a sense of ambiguity in the form of voluntariness and excessive delegation.
- Provisions on Disclosure of Information- While allowing the disclosure of Aadhar information on concerns of ‘National Security’ was allowed by the Supreme Court, it had specifically mentioned that judiciary should be part of this disclosure. But the bill has not mentioned the same in the proposed Amendment.
- The bill being passed as Money Bill- Even though the bill has been passed in the Lok Sabha, it has not been presented as a Money Bill, which means it will need to be debated in the Rajya Sabha as well. If that happens, it is unlikely to pass without significant amendments. If it is again railroaded through Parliament as a Money Bill or somehow gets past the Rajya Sabha, the amendments sought here do seem liable and possible to be struck down for violating the Supreme Court judgment.