This week marks one year since the Supreme Court ruled on the constitutionality of the Aadhaar project. Delivered just a year after the same Court unanimously affirmed the fundamental right to privacy, the majority of the five-judge Constitution bench upheld the validity of Aadhaar. However, it did so with significant caveats.
Principal among these was its finding that enrolment of children for an Aadhaar number must be based on their parents’ consent. The Court also held that on attaining majority, such children who are enrolled by their parents are entitled to opt out, or have their record deleted from the centralised database.
It further went on to hold that Aadhaar could not be made mandatory for school admissions, as every child between the ages of 6 and 14 had a fundamental right to education. Therefore, school admissions – which were neither a service, nor subsidy or benefit – could not be made contingent on Aadhaar. This rationale was also extended to benefits under the Sarv Siksha Abhiyan (the Union Government’s scheme to achieve universal access to education and retention of students in schools).
This was heartening; especially because the Court based its finding on children’s incapacity to consent, implying that they were therefore incapable of appreciating the significance of parting with their demographic and biometric information. It accordingly held – in unequivocal terms – that foisting Aadhaar on children was a disproportionate restriction on their fundamental rights, and clarified that no child could be denied the benefit of any scheme for being unable to produce an Aadhaar number.
The significance of this victory cannot be understated. Passed in 2016, the original Aadhaar Act made no distinction between enrolment of children and adults. Forcibly enrolled at birth, such children had no right to opt out of a system that they had never decided to enroll into in the first place.
Before the Court’s verdict, the central government had either linked, or proposed to link several child related welfare schemes to Aadhaar. This included the mid-day meal scheme, which made children’s entitlement to their lunch subject to biometric authentication.
Purportedly to prevent pilferage in such schemes, the mandatory enrolment of children under Aadhaar and biometric authentication raised several practical as well as legal concerns. First, biometrics of children are known to rapidly change over time, making it more likely for authentication to fail. This had the effect of excluding legitimate beneficiaries from their legal entitlements, contrary to the government’s aims.
This is besides universal concerns regarding lack of proper electronic and internet infrastructure, which routinely result in authentication failures across the country. Given that the rationale for the mid-day meal and other related schemes is to ensure nutrition and better attendance of children in school, a mandatory Aadhaar regime for such schemes ended up adversely impacting an already vulnerable section of society.
Second, the government’s failure to distinguish between adults and children while designing both the enrolment as well as the authentication process also demonstrated its scant regard for children’s privacy.
In his separate but concurring opinion in the landmark right to privacy judgment, Justice Sanjay Kishan Kaul was mindful of the special protection that children’s privacy merits, given that data about them is being collected and stored at a time when they have little understanding of how it will be used and by whom.
As the Aadhaar Act makes clear, biometric and demographic information collected during enrolment is stored by the government in a centralised database known as the Central Identities Data Repository (‘CIDR’). Every time a child is made to undergo authentication, the CIDR creates and stores a record of it.
Over a large period of time, such authentication records can collectively be used to create a detailed profile of an individual. While Aadhaar’s infrastructure poses significant privacy risks for all individuals, the intrusion into children’s fundamental rights is more severe because this information is collected without their consent or understanding, and without any corresponding right to review or correct it.
It is for this reason that the Supreme Court’s ruling holding that Aadhaar cannot be made mandatory for children, and giving those who enrolled the right to opt out at 18 years of age, is so significant. However, one year on, the government still appears to be wavering in implementing the Court’s verdict.
The Aadhaar and Other Laws (Amendment) Act, 2019, which seeks to give effect to the Court’s ruling, was passed only as late July this year. The Act prescribes that children can apply to have their Aadhaar record deleted on attaining majority, provided they do so within six months of turning 18 ‘in such manner as may be specified by regulations’. However, no regulations have been issued by the Unique Identification Authority of India (‘UIDAI’) to operationalize this right till date.
On the contrary, violations of the judgment continue unabated. For instance, the Tamil Nadu government recently issued a circular mandating every school to collect Aadhaar numbers of students under the Samagra Shiksha Abhiyan. Schools in Karnataka have similarly been reported to insist on Aadhaar for admissions.
At a conference held in February this year, the Department of Social Justice and Empowerment under the Government of India made a presentation setting out Aadhaar seeding as one of the action items requiring states’ attention in the context of scholharship schemes for high school students. The Rajasthan government similarly continues to insist on Aadhaar numbers of children as a condition to process scholarship applications.
Welfare schemes related to children therefore continue to be implemented in defiance of the Supreme Court’s express ruling. The UIDAI, which is the regulatory body entrusted with implementation of Aadhaar and compliance with the extant legal regime, has thus far failed to take any steps to remedy this situation. The 2019 amendment to the Aadhaar Act also contemplates the appointment of an Adjudicating Officer to decide violations of the Act.
However, in over two months since this amendment came into force, the UIDAI has not thought it fit to appoint such an officer and lodge a complaint against such erring state agencies.
Schemes such as the mid-day meal and those related to scholarships often serve to empower children from the most disadvantaged backgrounds. However, the government’s and the UIDAI’s failure to ensure effective implementation of the Court’s ruling only perpetuates these disadvantages. If the government is serious about sabka saath, sabka vikas (solidarity with everyone, development for all), it would do well to plug these enforcement gaps urgently.
(Kritika Bhardwaj is an advocate and a Fellow with the Centre for Communication Governance at the National Law University, Delhi)