Why an Ordinance is Not the Right Approach to Amending the Aadhaar Act


Why an Ordinance is Not the Right Approach to Amending the Aadhaar Act

Illustration: Shruti Yatam

While seemingly every news anchor in the country was perfecting their warhawk impression during the tense confrontation in Kashmir between India and Pakistan, it slipped the public’s attention that rules surrounding the data privacy nightmare that is the Aadhaar card were changed, for what feels like the umpteenth time. Prime Minister Narendra Modi’s Union Cabinet approved the promulgation of an ordinance to make amendments to the Aadhaar Act 2016, Prevention of Money Laundering Act 2005, and Indian Telegraph Act 1885 late at night on February 28, two days after the Balakot air strike.  

It isn’t just the timing of the ordinance which seems problematic – nationalistic fervour that gripped the nation for the last two weeks of February acted as a smokescreen for the ordinance to be passed without much scrutiny. It’s also the very fact that the Cabinet has used the ordinance to bypass normal legislative process, which involves having their amendments to the laws pass through both Houses of Parliament.

The furore at the border meant that there was neither the time nor the mental space for people or the media to truly examine or debate the nature of this out-of-the-blue ruling. The unique identification system was itself birthed in controversy, having spent the first few years of its existence backed by no law. Then, in 2016, the Aadhaar Act was passed, but as a money bill, which meant it only required ratification by the Lok Sabha. The amendments in the current ordinance were originally drafted as part of a bill, which was passed by the Lok Sabha in December, but not by the Rajya Sabha, which meant the bill lapsed with the ongoing session of Parliament. This ordinance is a Hail Mary, to achieve through executive means what could not be achieved through the legislature.

The reason the Cabinet was pushing for this amendment was that in September 2018, a special five-justice bench headed by Chief Justice Dipak Misra, after a marathon hearing against UIDAI, pronounced its verdict. According to the SC verdict, a number of sections of the Act, including Section 57 which deals with the use of Aadhaar data by private companies, needed to be scrapped for breaching citizens’ privacy.

As per the SC recommendations, a draft amendment bill was proposed in January, which was rushed through for voting before a conclusive debate on it. Notably, Congress MP Shashi Tharoor pointed out how the act was essentially inadequate under the current set of data security and internet privacy laws in India, and should only be worked upon after India had an effective data security system in place.

Even though the Act passed through Lok Sabha, there was no effort to bring it through the Rajya Sabha. This was to avoid the Rajya Sabha’s ruling, which is less constrained by regular party politics and short-term gains, in an approach similar to 2016, when the bill was passed as a money bill. This time too, rather than putting it up for scrutiny in the Rajya Sabha, the bill was passed as an ordinance just a few weeks before the elections, after Parliament had been indefinitely adjourned.

When the amendment act was introduced in January, there were some suggestions that were welcomed, like the prospect of children to opt out of the Aadhaar programme once they turn 18, but in general it was seen as bypassing the SC ruling and its mandate.

The belligerent and bullying comportment of leaders like Union Minister Piyush Goyal or BJP spokesperson Sambit Patra in the past few weeks shows how willing they are to use rhetoric to obfuscate facts.

While our country genuinely lacks a secure data system, the SC recognises privacy as a fundamental right. For example, the use of Aadhaar as a form of verification is “voluntary”, according to the amendments. However, in some cases, the alternative documentation for verification is a passport ‒ a document most Indians do not possess. Given the accessibility of Aadhaar, it will be a form of identification used by people for phones and bank accounts, despite its genuine security concerns.  

While some people are hailing the amendment as an improvement, and it does cover some major contentions of the SC judgement, there also was heavy criticism against it, like the fact that private companies can still ask for your Aadhaar information. While there are obvious pros and cons, before any law comes into place, it must weather through all obvious loopholes, instead of constantly suffering from amendments as post-disaster protection.

Until the parliament is next in session, a passed ordinance holds the same weightage as any constitutional law. In the passing of an ordinance essentially the two Houses of legislation are bypassed, making the executive the most powerful body. It is therefore used sparsely and within good reason.

Gautam Bhatia, an advocate for the Supreme Court, also a part of the team that first challenged the constitutionality of the Aadhaar act warns against such high-handed behaviour on the part of the NDA. He writes, “In both its form and its content, therefore, the Aadhaar ordinance raises serious constitutional concerns. It remains to be seen how the government will defend it before the court.”

The government should not be looking to sidestep due process; it is meant to push through it to create a robust system. The NDA government has a reputation for using grey and sketchy regions of constitutional procedure in its actions, actively discouraging deliberation and dissent, which are basic requirements for a democracy. The belligerent and bullying comportment of leaders like Union Minister Piyush Goyal or BJP spokesperson Sambit Patra in the past few weeks shows how willing they are to use rhetoric to obfuscate facts.

While the government is all too eager to claim that it is protecting citizens from external threats like foreign aggression and terrorism, questions about who will protect our privacy and data continue to loom large.