This week the Government of India is set to bring a troubling amendment bill for its controversial national digital identity programme — Aadhaar — for a vote in the Lok Sabha, the lower house of the Indian parliament. This bill would replace an ordinance promulgated by the Indian government in March of this year. Lawmakers had previously introduced a similar amendment bill in the Parliament, but it lapsed after the dissolution of the Lok Sabha for general elections. The ordinance the new bill would replace — an executive order which serves as temporary legislation — was a way to prevent lapse of the previous bill. Such an ordinance, per the Constitution of India, is brought only when an emergency necessitates urgent action. Yet to date, the government has not provided any solid reasoning to show that urgent action was needed. Unfortunately, this new bill repeats the mistakes of the previous bill, and it would undo the Supreme Court’s adoption of several essential principles of privacy and data security for the Aadhaar project.
When the bill lapsed in March 2019, we wrote about the need for a holistic rethink of the Aadhaar programme, based on sound principles of human rights. We suggested that a patchwork of simplistic fixes would only further aggravate the plethora of issues and inconsistencies within the Aadhaar programme. The Government of India must, through public consultations and honest open dialogue, reevaluate the programme as a whole to see if the programme is able to serve the citizens of India, and protect their human rights. If the programme is not able to serve the citizens and protect their rights, steps must be taken to scrap the programme as a whole — as suggested in the dissenting judgement of Justice Chandrachud in the Supreme Court of India’s ruling on the legality of the programme last year. It is extremely concerning that the previous ordinance and the current bill have been brought forth without any public consultation process.
Further, this amendment Bill comes in the wake of the restrictions the Supreme Court of India imposed on Aadhaar in its ruling on the legality of the programme, yet it conflicts with the Court’s adoption of principles to protect privacy and data security. The Union Cabinet has referred to the new amendment bill as a “major move aimed at making Aadhaar people friendly.” Given that it effectively negates the restrictions imposed on the programme to protect the fundamental rights of Indian citizens, we find this terminology to be ironic.
The amendment bill is likely to be passed in the Lok Sabha, largely due to the massive mandate provided to the ruling coalition in the recent general elections. This move comes as one of the first initiatives in the five-year term of this Union administration. If it does pass, the bill shall be referred to the Rajya Sabha, the upper house of Indian parliament. The Rajya Sabha consists of representatives from the various state government in India and the current government does not enjoy the absolute strength of numbers, as it does in the Lok Sabha. The amendment bill may see some resistance in both houses, with certain members proposing amendments.
We will continue tracking and analysing the developments on the bill, including the initiatives led by the many in India concerned about digital identity and the future of human rights. We shall also endeavour to provide substantive updates on the contents of the eventual amendments, if passed by the Indian parliament, with the aim of helping to ensure the protection of those rights.