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Economy Dec 19, 2012

Delhi govt makes Aadhaar compulsory, Centre tells court it is voluntary

By Pallavi Polanki

New Delhi: "Aadhaar Card is compulsory from 1st January 2013 for access to every government service" warns a public notice by the Delhi Government published in leading newspapers on Sunday. Ignore at your own peril is the straightforward message from Chief Minister Sheila Dikshit to Delhi's residents.

But a completely contradictory one from what the Unique Identification Authority of India (UIDAI) told the Madras High Court less than a month ago.

UIDAIwas responding on behalf of the Centre, the Planning Commission and the Tamil Nadu government to a notice by the Madras High Court that is hearing a PIL challenging the constitutional validity of the Nandan Nilekani-led UIDAI and its issue of UID or Aadhaar numbers.

The Aadhar card's constitutionality has been challenged in court. PTI

"I respectfully submit that it is to be noted that UIDAI is not issuing any card but is intimating the UID number through a letter. Enrolment for issue of UID is purely and totally voluntary," said the Assistant Director General of UIDAI, Bangalore, in the counter-affidavit submitted in the Madras High court.

At various points in the counter-affidavit, the UIDAI denies that Aadhaar is compulsory. To quote a few examples: "Enrolment for the UID is not mandatory"; "The UIDAI is not making Aadhaar mandatory"; "The statement of the petitioner that the UID project is mandatory for BPL (Below Poverty Line) and voluntary for others is wrong and incorrect."

Nevertheless, the Delhi Government only three days ago declared that Aadhaar will become 'compulsory' in less than three weeks "for access to every government service."

Further, the same affidavit that describes Aadhaar as being 'purely and totally voluntary', goes on to state that: "once the UIDAI programme is fully rolled out and Aadhaar numbers are issued to all residents, it would only be logical to make it a necessary condition for availing public benefits and services since Aadhaar would eliminate the possibility of a person getting double benefits under the same programme."

The purpose of Aadhaar, the counter-affidavit, states is "to promote inclusion and benefit marginalised sections of society who have no formal proof of identity vis--vis the State and hence experience difficulties in accessing various welfare schemes....The key role of UID number is that of an enabler - a number that helps governments design better welfare programmes, enables residents to access resources and services more easily wherever they live, and allows agencies and programmes - such as the NREGA, PDS, SSA - to deliver benefits and services effectively and transparently."

So when the government is intent on making a citizen's access to livelihood, services and benefits dependent on Aadhaar, what does it mean to state that the 'enrollment for UID is not mandatory'?

UIDAI's response has been to simply wash its hands off the matter and pass the buck on to government departments. In the counter-affidavit, the UIDAI official states that: "The UIDAI is not making Aadhaar mandatory. A service provider such as the Ministry of Petroleum may choose to use the UID number as a means to verify the identity of a resident. This is a policy matter of the service provider and not something the UIDAI can comment on. The authority does not define the nature of benefits and services.

"It is the Ministries/Departments which decide whether delivery of the benefits and services should be linked to Aadhaar number and the extent to which the number should be used."

The petitioner has been given six weeks to reply. The PIL was filed in December 2011 by a lawyer, S Raju, a member of Human Rights Protection Centre and was perhaps the first such petition to challenge the constitutional validity of UIDAI and collection of biometric data by it.

More recently, in November, the Supreme Court issued notice to the centre on another PIL that has sought a stay on the issue of Aadhaar on similar grounds. (Read story here)

The PIL in the Madras High Court describes the executive order that constituted the UIDAI as being "arbitrary, illegal and unconstitutional." It argues that it is the Parliament alone, and not an executive decision, that can authorise the formation of a body such as the UIDAI, which by collecting biometric data is intruding upon a citizen's fundamental right to privacy.

The National Identification Authority of India Bill, 2010, that seeks the formation and defines the functions of the UIDAI is yet to be passed by Parliament.

The PIL has argued that the amendment to the LPG Supply Rules, 2000, makes it mandatory for domestic users of LPG to have an Aadhaar number and is therefore no longer a choice. "By these rules, the Aadhaar card becomes mandatory even if it is not specifically admitted by the respondents. It is evident that it is a clear piece of compulsory testimony of personal information."

Denying services and rights to citizens Below Poverty Line (BPL) if they are unwilling to part with their personal information for Aadhaar is "highly impermissible and discriminatory" and a violation of the fundamental right to life and personal liberty, states the PIL.

The government in its counter-affidavit has called legal challenges raised by the PIL as 'false, untenable and unsustainable,' maintaining that "the UID project does not violate any of the constitutional rights of the people of India. The UID scheme is not mandatory and residents have a choice not to enroll and provide their biometrics should they choose to."

by Pallavi Polanki

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