Over the last two days media reports have emerged that the Unique Identification Authority of India (UIDAI), the body responsible for the implementation of the Aadhaar project, has issued notices to 127 people to “prove their claims to citizenship”.
The reports forced the UIDAI to release one of its classic denials, where it has claimed that “Aadhaar is not a citizenship document”, that “Aadhaar has got nothing to do with citizenship issues as such”, and that the notices were part of a routine inquiry to determine whether the Aadhaar numbers were “fraudulently obtained”.
The denial sparked legitimate outrage against UIDAI’s conduct, with politicians like Asaduddin Owaisi taking to Twitter to chastise the Aadhaar agency for its irresponsibility.
The central question at issue is the UIDAI’s legal authority to verify citizenship.
The powers of the UIDAI are drawn from, and limited to the terms of the Aadhaar Act, 2016. Section 9 of the Act states that “The Aadhaar number or the authentication thereof shall not, by itself, confer any right of, or be proof of, citizenship or domicile in respect of an Aadhaar number holder.” Conversely, it implies that citizenship itself does not imply that an Aadhaar card has been validly obtained.
Under the schema of the Aadhaar Act, the question of claims of citizenship does not arise. The issuance of an Aadhaar number is instead tied to claims to residency, and proof of residency is sufficient for enrollment in Aadhaar under Section 3 of the Aadhaar Act. Any of various documentary and non-documentary proofs may be sufficient for proof of residence (detailed under Schedule IV of the Aadhaar (Enrollment and Update) Regulations, 2016). Citizenship is a wholly distinct legal matter, which is to be determined under the terms of the Citizenship Act, 1955.
What, then, is the UIDAI’s justification in asking for proof of claims to citizenship?
The answer, as the agency’s statement briefly touches upon, may lie in an offhand direction issued by the Supreme Court of India.
In 2013, the apex court, in the course of the hearings challenging the Aadhaar project, ordered that “where a person applies to get the Aadhaar Card (sic) voluntarily, it may be checked whether that person is entitled to it under the law and it should not be given to any illegal immigrant.” The order was confirmed by the majority judgement in KS Puttaswamy v Union of India, which directed the UIDAI to take suitable measures to ensure that “illegal immigrants are not able to take such benefits.”
There are no documents to indicate that the UIDAI has taken any steps to implement this direction of the Supreme Court, which in itself is dangerously vague and capriciously framed. Admittedly, the UIDAI does have the powers (under Sections 28-30 of the Aadhaar (Enrollment and Update) Regulations, 2016) to cancel or deactivate any Aadhaar number, including where the enrollment ‘appears to be fraudulent’ or where valid supporting documents have not been obtained. The procedure involves a ‘field inquiry’ upon any case where cancellation of omission may be required, upon which the Authority may issue an order of cancellation or deactivation. However, even in the event that this exercise is borne out of the Supreme Court’s direction, and even if interpreted in its broadest manner, the UIDAI still has absolutely no authority to verify claims of citizenship or illegal migration.
The UIDAI is only empowered to check the validity of documents on the basis of which an Aadhaar number has been claimed, and cannot by itself go into the question of citizenship, or of the legality of a person’s entry or stay in India. The former is a question under the Citizenship Act, and the latter is a question to be determined under the relevant legal regime under the Foreigners Act, the Foreigners Order and related legislation. The UIDAI should not aspire to usurp the role of either the NRC or the Foreigner’s Registration Office in attempting to determine questions of citizenship or validity of entry and stay in India.
The UIDAI’s exercise is plainly dangerous, arbitrary and illegal. In falling back on the vague Supreme Court direction, the UIDAI has entered into the contentious fray of determining ‘citizenship’ and claims to Indian nationality. As Owaisi points out, the arbitrary power conferred by such determinations will likely have a disproportionate impact on the poor, Muslims and Dalits, who are already the targets of excessive violence occurring from the frenzy around the exercises for the determination of citizenship.
The end of the road could result in denying essential government services linked to an Aadhaar number on the basis of this arbitrary exercise, realising the worst fears about the Aadhaar project and the debate around citizenship.
Divij Joshi is an independent legal researcher.