In what is likely to have been the last Cabinet meeting of Prime Minister Narendra Modi’s five-year tenure, the government announced on Thursday that it would promulgate an ordinance permitting private companies to use Aadhaar for authentication and verification. The ordinance featured the same language as that of a Bill seeking to amend the Aadhaar Act, which failed to make its way through Parliament earlier this year. Despite the Bill’s failure, its provisions will be the law of the land – if only for six months, until the ordinance lapses.

The ordinance makes a number of changes to the Aadhaar Act in light of the guidelines laid down by the Supreme Court in its judgment last year on the government’s 12-digit biometric identity project. In some cases, the ordinance attempts to adhere to the court’s guidelines, but in others, it attempts to circumvent them.

For example, the judgment struck down the use of Aadhaar by private entities. The ordinance brings this back, giving permission to private entities like banks and mobile phone sellers to use Aadhaar again.

Other provisions in the ordinance include a section that allows for non-biometric “offline” verification, more powers to the Unique Identification Authority of India so that it can evaluate and penalise all those that use Aadhaar, a Supreme Court-mandated option for children to opt-out of Aadhaar when they become adults and a provision that allows the UIDAI to fine companies within the “Aadhaar ecosystem” if they contravene existing rules.

Lies & Aadhaar

True to form when it comes to Aadhaar, the government has introduced the ordinance in a manner that should raise questions about propriety and legality. The proposed amendments were hurriedly passed by the Lok Sabha in Parliament earlier in the year, but failed to make their way to the Rajya Sabha. So, without any public consultation and in the face of failure or rejection in Parliament, the Modi government has passed an ordinance instead.

This approach, of disregarding convention, propriety and the law, has been a part of the Aadhaar project since the very beginning, when it operated without legal backing for the first seven years. Even after that, in 2016 the law itself was passed as a money bill, a piece of legislation that only needs the Lok Sabha’s nod, which dissenting Justice DY Chandrachud called the move a “fraud on the Constitution”.

The government also willfully disregarded the Supreme Court’s requirements that Aadhaar be kept voluntary except for welfare delivery schemes, and instead tried to coerce much of the population into enrolling. It would later acknowledge this dishonesty in the Court. Now, just days before the Election Commission is expected to announce dates for the General Elections, the government has made changes to the Act via ordinance.

Is it unconstitutional?

It is not just the attitude that the government took that seems to be problematic. Various lawyers have brought up questions about whether the altered provisions involve excess delegation or, indeed, whether the changes are even constitutional, considering the Supreme Court’s judgment from 2018. Some have promised to challenge the ordinance in the courts.

Whether the courts intervene, citizens should be prepared for the revival of demands from banks and telephone companies to link to their details to Aadhaar, and stay vigilant against allowing that which is meant to be “voluntary” to again turn effectively mandatory.

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