The Assam government will collaborate with the Unique Identification Authority of India, which runs Aadhaar, to collect the biometric data of people reapplying to the National Register of Citizens.
About 40 lakh people were left out of the draft register published in July. They have filed fresh claims of citizenship, which will be heard by the officials responsible for updating the register. During the hearings, the biometric data of the applicants will be collected, according to a document laying out the standard operating procedure for the claims process:
“During the course of the hearings of claims and objections, the State Government in collaboration with UIDAI will undertake the process of biometric enrolment of all the applicants of NRC. The biometric enrolment in respect of persons who are part of claims and those persons objected upon will be distinctive and separate ID will be generated. Once the final NRC has been published such persons who are included in the NRC will be given the usual Aadhaar number as applicable to legal residents in the country. In case a person already has Aadhaar number who is also a part of the claim or objected upon, his Aadhaar number will be obtained.”
L Changsan, Assam’s home secretary, said the government and the Aadhaar authority are still working out the modalities. Those who do not make it to the final register can not be barred from getting Aadhaar since the biometric ID is only a proof of residence and not connected to citizenship, she added. Under the Aadhaar Act, “any person who has resided in India for a period or periods amounting in all to 182 days or more in the 12 months immediately preceding the date of application for enrolment” is eligible for Aadhaar.
It is not clear if the biometric data will be used to track the applicants who are not included in the register. Changsan has previously said those left out of the final list, and essentially declared non-citizens, can “move from one state to another – they can take up different identities”. The full details of what will happen to the biometric data of those who are rejected have not yet been finalised. “But some sort of interconnection would be there between the Aadhaar platform and the NRC,” Changsan said.
According to Aadhaar activists and lawyers, merging the citizen counting process and the collection of biometric data for Aadhaar strays into legally grey territory. The National Register of Citizens is governed by the Citizenship Act of 1955 and the Citizenship Rules of 2003. The citizenship statutes do not empower governments to collect biometric data, they pointed out, and the Aadhaar Act does not allow the UIDAI to collect biometric data for any purpose other than to generate the 12-digit identity number.
Aadhaar and the citizen
In Assam, unlike in other states, Aadhaar has grown entangled with fraught notions of citizenship. The National Register of Citizens, compiled only for Assam, is being updated for the first time since 1951. It’s to be a roster of “genuine” Indian citizens living in the border state.
Under the Citizenship Act, those who were born after January 26, 1950, but before July 1, 1987, are entitled to citizenship by birth. Any person born on or after July 1, 1987 may get citizenship by birth if either parent was an Indian citizen at the time of their birth.
But this law was amended in 1986 to include an exception for Assam. The changes were made to align with the provisions of the 1985 Assam Accord, the culmination of a six-year-long anti-foreigners’ agitation in the state. Under these provisions, anyone who could not prove they or their ancestors had entered the country before midnight on March 24, 1971 would be declared a foreigner in Assam. That is the date Pakistani tanks rolled into Dhaka, marking the start of the war that would lead to the creation of Bangladesh.
Anxieties about so-called “illegal migrants” entering the state from Bangladesh have endured. Aadhaar enrolment was stalled in the state in August 2014 because of fears that such individuals would use the identification number to claim citizenship. As of September this year, only 24.34 lakh of the state’s 3.4 crore people had Aadhaar. The state government decided to resume enrolment from October this year, only after the Centre clarified that Aadhaar did not confer or prove citizenship.
As claims and objections regarding the citizens’ register are heard, however, the two processes seem to be linked again. Officials with the National Register of Citizens said they will not be responsible for collecting biometric data. But there may be a convergence of the authorities monitoring both processes at the district level.
At this stage, the claims to citizenship will be decided after hearings. The standard operating procedure states: “The hearings will record the particulars and statements of witnesses and after due examination of all records and evidences a speaking order will be given by the authorised officer of DM”, or district magistrate.
Deputy commissioners, who act as district magistrates and collectors in Assam, have also been designated as district-level authorities for Aadhaar enrolment. The general administration department has reportedly identified six firms to carry out enrolment through 1,241 centres across the state.
No legal basis
Advocate Usha Ramanathan, who has petitioned against Aadhaar, felt that Assam’s move tampers with the voluntary nature of the biometric ID. “Under UIDAI, you are only entitled to enrol, not be compelled. People who are applying for citizenship are now being compelled to submit biometric data,” she said.
Apar Gupta, a lawyer who was involved with the legal challenge to the constitutional validity of Aadhaar in the Supreme Court, pointed out that “there has to be a specific statutory purpose for the collection of data”. The Supreme Court’s judgement on Aadhaar has considerably limited the scope for the collection of biometric data.
Section 7 of the Aadhaar Act lays down that the central or state government can ask for Aadhaar only to establish identity for providing subsidies or services funded from the Consolidated Fund of India. Additionally, biometric data can be collected under Section 139AA of the Income Tax Act, which requires PAN cards to be linked to Aadhaar numbers. “There is no third statute” that mandates the collection of such data, Gupta said. It would also be an infraction of the privacy judgement, he added, which requires legal backing for “the state to proceed with any activity that would invade privacy”.
Scroll.in has sent questions to the UIDAI about the legality of merging Aadhaar enrolment with the updating of the citizens’ register in Assam. This story will be updated when it responds.