New Delhi: Five years ago, the Supreme Court said it was unconstitutional for private companies to use Aadhaar data to establish someone’s identity.But the Union government is now proposing that private companies should be allowed access to people’s Aadhaar data, as long as such use promotes “ease of living” and enables “better access to services.”Critics of the government’s proposed legislation say that the government’s use of vague wording in trying to expand access to Aadhaar data poses a risk to individual liberties.“This legislation is pregnant with potential for mischief as the term ‘ease of living’ is undefined, nor is it made clear how one can gain ‘better access’ and to which services,” former Supreme Court judge Justice B.N. Srikrishna and Swapnil Kothari said in an opinion piece for the Hindustan Times, adding that the legislation runs the risk of violating the Supreme Court’s 2018 unconstitutionality judgment.On the other hand, the government believes that its proposal to expand Aadhaar access to private companies will not run afoul of the top court’s decision.“The concern then was the private sector accessing Aadhaar, but under the new proposal, no private entity will have access to Aadhaar details of a person – it is a simple yes or no authentication to establish one’s identity,” a senior government official told the Indian Express.The government has invited comments to its draft and recently extended its deadline to May 20.Aadhaar is a biometric identification system that the Indian government initially introduced to expedite access to food subsidies and welfare benefits, but it has become increasingly necessary for accessing services such as bank accounts, SIM cards and internet connections. It is the world’s largest system of its kind.What the government proposed in April is a draft amendment to an older legislation called the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020. According to this law, the Union government may authorise Aadhaar access to “requesting entities” if they want to use it to verify someone’s identity with the purpose of using digital platforms for good governance, preventing welfare benefits from leaking, or “enabling innovation and the spread of knowledge”.Srikrishna and Kothari say these terms are overly broad as well.“What do these phrases mean? Was there any debate on them, any public discussion, or were they decided in the cloistered chambers of the executive? These rules seem to afford sufficient grounds for invalidation on the “void for vagueness” [doctrine] or [“over-broadness”] when tested on the anvil of constitutional principles,” they said.After the Supreme Court’s unconstitutionality verdict, the government had to amend existing legislation in order to allow banking and telecommunication companies to authenticate their customers for ‘know your customer’ (KYC) requirements, the Express‘s report said.On May 6, the government expanded the range of non-banking companies that can use Aadhaar data for KYC requirements to 22 financial entities, including Amazon Pay (India) Pvt. Ltd, Aditya Birla Housing Finance Ltd and IIFL Finance Ltd. This decision falls under the ambit of the Prevention of Money Laundering Act, 2002 (PMLA), which allows certain non-banking financial entities to rely on Aadhaar data for user verification.
