The far-reaching impact of the Supreme Court upholding the constitutionality of the Aadhaar Act is yet to be ascertained with finality, especially in view of the current fluidity of the definition of who can even apply for an Aadhaar.
The most basic question that arises is whether the Aadhaar system has any synergies with the emerging framework of citizenship in India, and is there any clarity in law about what this means?
On July 31st 2019, the Ministry of Home Affairs notified the decision to prepare and update the National Population Register of India – an exercise that is being envisaged to be carried out in all of India between April and September, 2020. What is more, the very definition of who qualifies to be an Indian citizen has been pending adjudication before a Constitutional Bench of the Supreme Court of India since 17th December 2014.
Despite this, what has been effectively done through Aadhaar is that biometric information and other identity information of 1,244,406,839 (1.2 Billion+) people has been collected.
Under the process that is scheduled to unfold between April to September 2020, every individual will be called upon to prove their inclusion in the National Population Register of India, and the UIDAI will continue to hold this information whether the said person qualifies for inclusion or not.
The UIDAI may continue to hold this information, under no specific mandate or authority of law, and in the absence of any legal protection for the use, and storage of this data – in view of the lack of a data protection law in India.
What does Aadhaar mean?
While the question of who can possess an Aadhaar seems to be dealt with much fluidity, what does holding an Aadhaar make one entitled to? And what kind of a relation does the Aadhar holder have with the state? To put it even more simply, what are the additional advantages of possessing an Aadhaar number or card?
This question goes to the essence of the Indian Constitution – the Fundamental Rights. Article 21 states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The practical application of Article 21 manifests in the system of subsidised food grain (ration), pension scheme and other similar schemes.
Aadhaar, as per the Act, is voluntary, but if one chooses not to enroll, the repercussion then is to forgo these Fundamental Rights that are guaranteed by virtue of Indian citizenship or by the mere fact of being in India.
Various High Courts have time and again reiterated that Aadhaar is not a proof of citizenship, and in its final judgement, the Supreme Court remained silent on this issue; the Act says that the card may be issued to a resident – being any individual who has resided in India for at least 182 days in the one year period just before the date of application.
This requirement has however been recently relaxed for Non-Resident Indians (NRIs) who possess an Indian passport, and can enroll for an Aadhaar number upon arrival in India, a recent circular by the UIDAI stated.
Could there be any further departure from the objective of the legislation itself, which is stated as furthering a smooth “efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India…”?
Aadhaar and NRC
The Home Ministry and the Government of Assam have collected biometric information of people during the NRC process. Once they are included in the NRC, they are issued an Aadhaar. However, it has been clarified by the Home Ministry that those who are not included in the NRC, and are even pending adjudicating of their citizenship status, will not be issued an Aadhaar.
People who have applied to be included in the NRC have normally been residing in India, at least since much before August 2015 – when the first round of applications were submitted. They also possess other forms of identification, which in fact is the basis of an NRC Application, and sufficed for accessing their Constitutional entitlements.
Therefore, while Aadhaar will be issued to NRIs in possession of an Indian passport, persons excluded from the National Register of Citizens (NRC) in Assam are being denied the same, with the potential of being denied their constitutional entitlements.
The implication of the Aadhaar requirement is actually taking away from Article 21 rights, and other fundamental rights; denying genuine citizens of their rights – for the want of an Aadhaar. Therefore, is Aadhaar then a mere system of convenience for selective exclusion and inclusion?
In the above NRC context for example, a person who is not included in the NRC, does not then have access to Aadhaar, and thereby, for the period that the status of their citizenship is pending adjudication, will they still be able to access these entitlements, which are paid for from the consolidated fund of India, at all?
If not, then what is the alternate system? And if there is a viable alternate system for accessing these rights, then would that not make the Aadhaar redundant in the first place?
The lack of forethought in implementing these systems, and carrying out projects with the potential of mass exclusion have time and again, failed people who are entitled to these rights.
It is clear that the precarious situation which such ill-thought out policies and laws put most of India’s population in, has no space in the political or judicial imagination.
It is worth recalling what the “notorius’ RBG [Ruth Bader Ginsburg]”, a United States Supreme Court Justice, once said, “I think it is important for people to realise that law is not some kind of abstract exercise. It affects real people, and judges should be cognizant of how the law affects the people that the law is meant to serve.”
(Tripti Poddar is a lawyer practicing in Delhi)