The Aadhaar and Other Laws (Amendment) Bill is scheduled to be passed in Parliament on Thursday, June 27. The Bill that is being tabled overlooks privacy of Indians and gives prominence to the interests of businesses, more specifically the telecom companies including Reliance Jio and Airtel.
To understand it, we must go back to the Supreme Court’s September 2018 judgement in the in Justice KS Puttaswamy vs Union of India (Aadhaar judgment) case. This had declared that the use of the Aadhaar number and Aadhaar-based authentication by private entities as unconstitutional.
The judgment found the Department of Telecommunications (DoT) circular issued on March 23, 2017, which mandated linking of mobile connections with Aadhaar, a “disproportionate and unreasonable state compulsion”. The same judgment also deemed Rule 9 of the PMLA (Second Amendment) Rules, 2017, (which requires mandatory linking of Aadhaar with bank accounts) as unconstitutional.
The judgement was especially not kind to Mukesh Ambani-held Reliance Jio. “The ruling significantly impacted its pace of subscriber acquisition, which was based on Aadhaar-based e-KYC authentication. The UIDAI and the DoT rapidly came up with an alternative to assuage telecom companies that there were ways of still acquiring subscribers nearly instantaneously,” says Raghu, who is a part of the Rethink Aadhaar campaign.
Soon after the ruling, the Department of Telecom had sent letters in October asking companies to delete the Aadhaar data and stop verification using this method. In response to this letter, Mukesh Ambani-held Reliance Jio had stated that “while compelling a customer to use the Aadhaar for authentication would be violative of the Constitution, appropriate legislation narrowly tailored to enable an Aadhaar holder to use his number for authentication would be constitutionally valid”.
“Jio, in fact, suggested that the government must change the law to enable Aadhaar authentications. The company’s business model rested on Aadhaar and being a part of the Aadhaar universe, especially because almost 90% of their subscription was through Aadhaar,” explains Srinivas Kodali, an independent researcher working on Aadhaar. In the response, they reveal that Reliance Jio Infocomm Limited (RJIL) has been the largest user of Aadhaar authentication services. They even state that not using Aadhaar will endanger ‘national security’.
In the latter half of their response, they urge the government to work with DoT, and “implement appropriate amendments to the to the Aadhaar Authentication Regulations, 2016, that engrafts and gives effect to DoT’s rules”. The response from Reliance adds that such new rules “will have the force of the law and will formally address the e-KYC authentication requirements of new subscribers”.
Then they go on to list out all the ways in which it will hamper their business monetarily and eat into their profits. The letter states that “the Customer Acquisition Form (CAF) requires augmentation of resources, manpower acquisition at multiple levels. This will require enhancements at Call Centres and IVR mechanism for subscriber verification”. They state that DoT’s current request needs nine months to comply.
They in fact also enlisted the services of senior counsel Harish Salve to respond to the letter from Dot, where they even state that if the use of Aadhaar is restricted, it is in fact violative of “the rights of a citizen to use his biometric data”.
“The opinion that Reliance Jio relies on fails to read the judgment correctly and as a whole and suffers from selective quoting from different places in the judgment (including those sections that deal with the submissions of the Respondent i.e. Union Govt), to come to a conclusion completely at variance with the true spirit of the judgment,” says Prasanna S, a lawyer for petitioners in the Aadhaar cases before the Supreme Court.
“Harish Salve’s opinion also fails to acknowledge the asymmetries of information and asymmetries of power at play when use of Aadhaar is sought to be allowed on a "voluntary" basis. A telecom operator faced with additional costs of paper CAF management will and is likely to seek and insist on Aadhaar authentication anyway, even as the rules provide for paper voluntariness. The Court was mindful of these issues when it struck down the part relating to "contract" in Section 57,” says Prasanna.
Section 57, which allowed the use of the 12-digit Aadhaar number for establishing the identity of an individual for any purpose, was held unconstitutional in the September ruling.
Justice Sikri, writing for the majority appears to have anticipated this, says Prasanna and adds that Sikri has given neat and operative summary of the judgment. “In the summary dealing with Section 57 of the Act, among other things, the Hon'ble Court struck down the following portions - "any contract" and "body corporate",” highlights Prasanna.
“Vodafone, in its response has stated that the exit plan of UIDAI, would have ‘grave ramifications’,” says Kodali. They however, do not state what those grave ramifications are. And then they go on to blame the subscriber for all issues. Vodafone states that the subscriber cannot be contacted, the paper process requires several hours for activation and affects national security.
Bharti Mittal-led Airtel in its submission stated that it had completely stopped re-verification of customers using the Aadhaar. But, then it states that Aadhaar-based verification addresses the security concerns of the country and is convenient to the customer. It included that they had issued 233 million SIM cards to 105 million subscribers using Aadhaar, so it is difficult to verify using paper.
Tata TeleServices and the Airtel letter reads similar and Tata also goes on to state that it had ended the re-verification of customers using Aadhar. Then, they too add, in language similar to the Airtel letter, that Aadhaar is secure and addresses the national security question.
“All these amendments are nothing but a way to help private companies. It does nothing for the citizens of the country. Some are more equal than others,” contends Kodali.