On Feb. 13, 2019, the same day the 16th Parliament prorogued, the government issued a gazette notification announcing further amendments to the Prevention of Money-laundering (Maintenance of Records) Rules, 2005. While the lapsing of the Aadhaar Amendments Bill and the DNA Bill due to the proroguing of Parliament were widely reported, the gazette notification seems to have escaped everyone’s attention. For anyone tracking the government’s (lack of) response to the Supreme Court’s 2018 Aadhaar judgment (in K.S. Puttaswamy vs the Union of India), however, the latest notification can be seen as a significant retreat curtailing the function creep of the Aadhaar project, with regards to financial services.
Even as successive governments sought to expand the Aadhaar project, incremental efforts from researchers and activists on the ground reached critical mass in the courts, forcing the Supreme Court to constitute not one but two Constitution Benches to first adddress the diversionary question of the Right to Privacy (upheld unanimously in the 2017 Puttaswamy judgment) and then review the constitutionality of the Aadhaar project itself. Briefly, while the majority opinion of the SC judgment gave the Aadhaar project partial judicial sanction, the judges declared that mandating Aadhaar linkage for the purpose of identifying money launderers was disproportionate; the earlier PMLA amendments were therefore struck down. The Feb. 13 notification essentially complies with this part of the judgment. However, given that the PMLA amendments were the rationale for the Reserve Bank of India updating its own master directions to mandate Aadhaar linking for all bank accounts, the gazette notification thus forces the RBI’s hand once again. Perhaps RBI officials will be cursing releasing a new version barely few months ahead of the SC judgment, in April 2018.
It is instructive to note that, in response to the SC judgment specifically striking down provision of Aadhaar number for mobile services, the Department of Telecommunications issued its notification on October 26, 2018, following up from UIDAI’s letter of October 1. However, as we see from the amendments proposed to the Telegraph Act (as well as the Prevention of Money Laundering Act) as part of the Aadhaar Amendments Bill, the government did seek to bring back Aadhaar linking for both mobile and banking services. Was it merely an oversight then, that the notification amending the PMLA rules in compliance with the SC judgment was not issued until the very last day of the 16th Parliament?
The lapsing of the Aadhaar Amendments Bill does not however signal the extinguishing of the government’s ambition to revive the use of the Aadhaar number and Aadhaar-based authentication by private entities; it is still likely that an ordinance to the effect will be issued if the BJP is confident of its chances in the upcoming elections and, subsequently, of controlling the Lok Sabha yet again. It is in this latter light that the timing of the gazette notification becomes all the more significant. Does the notification represent an attempt by the BJP to eliminate, in the pre-election period, any visible difference between its “version” of Aadhaar and the INC’s version? As things stand currently, all governmental actions on Aadhaar since 2014 stand nullified with the sole exception of the passing of the Aadhaar Act, 2016. The alarming expansion in the remit of the Aadhaar number to services offered by private entities stands checked – for the time being. And there is every indication that a large number of citizens will continue to resist enrolling for and/or linking the Aadhaar number with their PAN.
The ideal state of functioning in a democracy is one where government policies are drafted bottom-up, based on evidence of shortcomings or gaps in governance, involving a large number of the public as stakeholders with the process at worst affecting adversely the the smallest minority, if at all. Importantly, this well-oiled machine is receptive to feedback, allowing for corrective measures to be implemented with the least amount of social friction. While it may appear that the most un-ideal state of functioning would be one where government policies are riddled with malfeasance regarding the welfare of the people, it is arguably worse for people and government to participate in a system that behaves without clarity as to motives. The government’s policies may or may not involve evidence-based research and consultation; public feedback may or may not be taken into consideration; in effect there is no clarity on the government’s functioning.
India’s nine-year-long engagement with the Aadhaar project falls largely into this last category. The inception of the project and the early stages of its implementation coincide with a phase wherein social movements proved effective in getting the government of the day to pass laws guaranteeing people’s right to food and nutrition, right to a livelihood and, no less importantly, right to information regarding government actions. Thus, the belligerence with respect to the Aadhaar project and utter disregard for citizens’ concerns by the government as well as the UIDAI are an affront to citizen engagement, while giving rise to the viewpoint that the project is being driven by private entities who stand to profit via exploiting citizen data collected ostensibly for public purposes, at taxpayer expense, by the government.
Even with the Aadhaar Amendments Bill, there were concerns that the government was playing to the private gallery. Unless there is an ordinance passed bringing the Aadhaar (and other Laws) Amendments Bill to life, private parties will likely have to hedge their bets upon the upcoming election. Either way, citizens do not have – and will likely never have – absolute clarity on what, specifically, is driving governmental actions – irrespective of who forms the next government. All that we are told– thanks (but no thanks) to the SC, both the INC and the BJP, and the UIDAI, is that Aadhaar is a boon for welfare schemes and has supposedly helped the government save thousands of crores in subsidy expense. All of this comes guilt-wrapped in the legislative fiction that is the Aadhaar Act, 2016. The savings claims are as mythical as the claims that the Aadhaar database is safe. Anyone who is anyone within the Aadhaar ecosystem has long shut their ears and adopted the convenient tactic of denial after denial. Now, mysteriously, the government has chosen not to deny the SC judgment.
It is left to us citizens to fathom whether this was done with a view to ensuring a “clean slate” for the BJP in the run-up to the elections vis a vis the Aadhaar project. It has been surmised that the growing Aadhaar-related exclusions and anger stemming therefrom was crucial to the BJP’s reverse in the Chhattisgarh elections. Citizens should now respond similarly to the BJP’s remorseless expansion of the Aadhaar project nationwide in the upcoming General Elections. If we can learn anything from our long history of social movements, it is that the continuous building up of incremental change can have monumental effect. The SC’s review of the Aadhaar project is but one such effect – we must now ensure Parliament hears and responds to us.