The Aadhaar confusion: Voluntary, yet mandatory

With the Supreme Court’s next hearing expected in November, one can wait for some more time before linking it to bank accounts and mobile numbers.

If you download the Aadhaar enrolment form from the Unique Identification Authority of India’s (UIDAI’s) website (https://goo.gl/zYVW76), at the top it states that “Aadhaar Enrolment is free and voluntary”. But, the government is going all out to ensure this 12-digit unique identity number becomes a necessity. Everyone, including banks, mobile operators, and even jewellers, want it. In the latter case, the government was quick to step in and clarify that there was no need to provide the Aadhaar or PAN card for transactions above ~50,000. Finance Minister Arun Jaitley recently hinted that Aadhaar might be needed for travelling abroad and buying a car as well.

Meanwhile, banks and mobile operators are sending messages, which ‘request’ that you link it immediately, in rather intimidating language. Going by the government’s diktat, an individual cannot operate his mobile phone or do banking transactions from 2018, if he does not have Aadhaar.

In June, the Supreme Court had said those who have Aadhaar need to furnish it for filing income-tax returns. It also said if one didn’t have an Aadhaar card, their PAN would not be cancelled for failure to comply.

It’s not that Aadhaar hasn’t done any good. Nandan Nilekani, former UIDAI chief and current non-executive chairman of technology major Infosys, recently said the Centre had managed to save $9 billion (over ~58,000 crore) by eliminating fake and duplicate beneficiaries of government schemes through the Aadhaar programme. Legal question: On August 24, the Supreme Court had ruled the right to privacy was a fundamental one protected under Article 21 of the Constitution, which upholds the right to life. However, fundamental rights guaranteed by the Indian Constitution are subject to reasonable restrictions. And, the imposition of Aadhaar still needs to pass the right to privacy test. However, many believe the government making Aadhaar mandatory doesn’t have legal backing. “According to the Supreme Court’s order, Aadhaar cannot be made mandatory for anything. Every agency making it compulsory is violating the apex court’s order, as well as the Aadhaar Act, 2016. The SC had in fact asked the Centre to advertise across print, radio and electronic media that Aadhaar is voluntary,” says Gopal Krishna, convener of Citizens Forum for Civil Liberties, which campaigns against surveillance technologies.

If you don’t have an Aadhaar number or are uncomfortable linking all accounts to one identity, it’s best to wait for some time. The Supreme Court is hearing a slew of petitions challenging the legal validity of Aadhaar, which are clubbed into one. The next date for the hearing of the case is in the first week of November. So far, Aadhaar is voluntary: “The only reason the government is going against the Act and SC is to boost the numbers of enrolments. When the case comes for the next hearing, the government can show that a high percentage of citizens have already linked their Aadhaar with various services, which demonstrates that citizens don’t have a problem,” says Usha Ramanathan, an independent law researcher.

Many high courts have already ruled in favour of the citizens. The Kerala High Court has allowed a lawyer to file income tax returns without furnishing Aadhaar. Similarly, the Karnataka High Court has passed an interim order for a woman to collect food supplies. Other courts have granted relief for mandatory usage of Aadhaar for pension and enrolment in schools and colleges. Though banks have been sending messages to link Aadhaar with bank accounts, if you look at the consent form by the banks; they also make you sign a paper that says the accountholder is voluntarily sharing his unique identity. Leakages, a worry: In August, the Bengaluru police caught a 31-yearold software developer who allegedly hacked and illegally accessed the UIDAI server and is suspected to have stolen data. If scammers get hold of such data, they can devise tricks to access your bank and other accounts. There are already cases where criminals changed the mobile number linked to an Aadhaar and stole money from the linked bank accounts. It is done by tricking the person into revealing the one-time password he receives on mobile to change the mobile number linked to Aadhaar. Recently, a Right to Information (RTI) application filed by Bengaluru-based Matthew Thomas revealed that contracts signed with foreign firms by the UIDAI give foreign firms ‘full access’ to classified data, including fingerprints, iris scan info, and personal information like date of birth, address, and mobile number of applicants. They were also allowed to store the data for seven years.

In such circumstances, a person has limited options. “Ask the institution to show you the notification or communication that states Aadhaar is mandatory,” says Wilfred D’Costa, Convenor at Indian Social Action Forum. New customers need to cite the SC’s orders in the letter. They also need to tell the organisations that their request is in violation of the court’s order and therefore not legal. They cannot mandate Aadhaar until the SC passes the final order. Also point out that according to the Aadhaar Act, it’s voluntary to enrol for it.