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Government’s Aadhaar Ordinance for commercial use is another Fraud upon the Constitution

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Late in the evening of February 28, 2019, in the midst of a critical situation at the Indian border, the Central Government issued the Aadhaar and Other Laws (Amendment) Ordinance, 2019, which seeks to revive the commercial use of the biometrics-linked 12-digit Aadhaar number which the Supreme Court had specifically struck down as being unconstitutional in September 2018. By promulgating this ordinance, the government is attempting to push through the Amendments to the Aadhaar Act, which it had failed to pass through Parliament and in particular the Rajya Sabha where it lacks a majority. The passage of this ordinance shows the Central government’s contempt of democratic and legislative institutions and signals the further weakening of our most basic democratic structures. 

The Lok Sabha had passed the Aadhaar and Other Laws (Amendment) Bill, 2018, on January 4, 2019. Failing it’s passage through the Rajya Sabha, the Bill lapsed. The ordinance has the same text as this Bill.

When introducing the Bill in the Lok Sabha, Minister for Law and IT, Mr. Ravi Shankar Prasad, misleadingly claimed the amendments were “in compliance with the SC”. Since the SC's judgment on Aadhaar, the government has disingenuously attempted to manipulate the Court’s judgment in order to expand Aadhaar’s commercial applications to allow use by private entities, with Finance Minister Arun Jaitley signaling this within a day of the SC judgment. 

On January 31, 2019, just prior to the start of Parliament's Budget Session, 294 citizens and organisations wrote to both the Prime Minister as well as the Vice President (who is also the chairperson of the Rajya Sabha); these included petitioners in the Aadhaar case, eminent jurists, political leaders, former civil servants - including a former chairman of TRAI and a former Secretary of the Department of Information Technology, citizens who have served in the armed forces, academics, artists, management professionals, and activists cautioning against this. They urged the MPs to refer the Bill to a Select Committee for sufficient scrutiny of the proposed amendments.

By promulgating the ordinance, which features the same language as the Aadhaar Amendments Bill, the government is abusing its privilege as  the Executive, using Constitutional provisions (Article 123) which should only be used as an exception, when urgent action is required such as in armed conflict or natural calamities. 

The ordinance is the latest in a series of unconstitutional, illegal, and coercive steps successive governments have adopted in expanding the Aadhaar project, violating citizens’ welfare and privacy rights. The Aadhaar Act was passed as a Money Bill bypassing the Rajya Sabha as the government claimed it dealt only with welfare provisions, subsidies, and public services paid for by the Consolidated Fund of India. 

While undermining citizens’ legal entitlements and unleashing havoc on food, pensions, scholarships schemes through use of Aadhaar-based automated systems, the government is yet again encouraging Aadhaar’s commercial applications, which allow private profiteering through data collected for public purposes.

We are deeply concerned about the government’s eagerness to safeguard the commercial interests riding on Aadhaar, even at the cost of undermining citizens’ rights and social protections. We demand:

  • that the President of India NOT promulgate this Ordinance

  • that the Ordinance be withdrawn at once by the present government 

  • that any government formed after the general elections halt such blatant attempts to allow commercialisation of citizens’ data.

  • that any future legislative action on Aadhaar be focused on and ending the coercive use of Aadhaar-based biometric authentication for disbursement of social benefits which has affected the most impoverished and marginalized citizens of India.

Further reading:

Reetika Khera writes in Bloomberg Quint "the truth is that Aadhaar is not really about welfare. Instead, it has everything to do with facilitating businesses that thrive on mining our personal data.”

Gautam Bhatia talks about the Constitutional concerns with the Amendments in the Hindustan Times.

We described earlier the serious concerns with this Bill. 

Read the letter from eminent citizens to the Vice President and Prime Minister.