Public Interest Litigations (PIL) challenging mandatory linking of Aadhaar with various services, including bank accounts, are multiplying with every passing week. The latest PIL filed with the Supreme Court contends that the government of India has wilfully misinterpreted the SC’s order in the Lokniti Foundation case by making Aadhaar-based eKYC mandatory for both prepaid and postpaid subscribers via Department of Telecom (DoT) circulars dated 16th August, 2016 and 23rd March, 2017. This was first reported by Bar&Bench.
The Government of India is wilfully misinterpreting the order of this Hon’ble court and asserting that this Hon’ble court directed them to make Aadhaar mandatory for obtaining a new mobile connection, and for re-verifying existing prepaid and postpaid subscribers… All that, this court directed was that in the interest of national security a proper verification of mobile subscribers should be carried out.
The petition also asks the SC to provide “a direction to the Telecom Service Providers’ to stop advertisements as well as SMS and misinforming the citizens of India about the actual import of the said order.”
Besides the government, the Unique Identification Authority of India (UIDAI), Bharti Airtel, Vodafone India, Idea Cellular and Reliance Jio Infocomm have also been made Respondents to this petition.
To begin with the petition argues that as per the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 there is no provision that allows linking of an individual’s Aadhaar biometric details with his/her mobile number to be made mandatory:
“[The Aadhaar] Act was passed to provide for proof of Identity and was to be used for identification of beneficiaries for transfer of benefits, subsidies, services and other purposes. Section 7 of the said Act, which provides that such subsidy, benefit or service would have to be incurring expenditure or the receipt there-form forming part of the Consolidated Fund of India, does not permit linking Aadhaar to mobile number to be made mandatory. Section 8 of the said Act at the most allows for Aadhaar to be used for the purpose of authentication, should the subscriber after exercising his or her choice after due consideration and explaining of the process chooses to do so. Of late, the Government of India is making Aadhaar necessary to avail of a service which has no direct link with the Consolidated Fund of India.
The petition then succinctly illustrates how the DoT’s stance changed across the two circulars mentioned earlier:
16th August, 2017: DoT’s circular “introduced Aadhaar based eKYC as an alternative process of authentication to the already existing Proof of Identity/Proof of Address methods.
6th February, 2017: The SC’s judgment in the ‘Lokniti Foundation v Union of India’ case addressed “the issue of verification and re-verification of mobile subscribers, [and] expressed its hope that a process ensuring proper verification would be carried out as far as possible within a period of one year.”
23rd March, 2017: DoT’s second circular “declared that the Supreme Court of India had essentially directed them to make Aadhaar based eKYC mandatory for obtaining new connections and for re-verifying existing subscribers, and proceeded to make it mandatory for both Prepaid and Postpaid subscribers to connect their Aadhaar cards with their phone numbers.”
Note the SC’s judgment in the Lokniti Foundation case had only addressed re-verification of existing prepaid mobile numbers. Plus, in case of postpaid numbers, a thorough check of both proof of identity and proof of address, including a physical visit to the subscriber’s residence is already carried out. Why then is an Aadhaar based eKYC necessary?
The petition also addresses the concerns regarding how the Aadhaar data is stored and protected by private telecom operators:
Further, there is no procedural guarantee against abuse of such interference, insofar as there is no data protection law, to regulate how this information is collected, used, or disseminated, or what is to be done in case of a breach. The consequences of having the Government share with a private Telecom Service Provider, information which was entrusted to it, thus would not survive any of these tests.
Read the entire copy of the petition here.
Government might tweak Aadhaar-mobile number linking process
Earlier this month, the government of India was considering tweaking the Aadhaar and mobile number linking process to address difficulties faced by customers, especially senior citizens. Apparently, it held discussions with telecom operators and the UIDAI to come up with a solution. Some of the options that are being considered include using an online OTP (one time password) in case of mobile numbers already registered with the UIDAI, iris scans (instead of fingerprint authentication) for people with unclear fingerprints, and home visits for senior citizens. Another option that is being evaluated is proxy authorization, whereby senior citizens will be allowed to nominate a person to carry out the Aadhaar-mobile number linking process on behalf of them.
In January this year, TRAI recommended DoT to implement Aadhaar-based verification for SIM cards. Following which, DoT made it mandatory for all telecom operators to ensure that their subscribers link mobile numbers to Aadhaar number within a year. The deadline currently is 6th February, 2018.
Over the past few months, most major telecom operators have been bombarding customers with messages asking them to link their Aadhaar details to their mobile numbers, and in some cases even threatening disconnection of service if it is not done immediately. In fact, in August, the Cellular Operators of India (COAI) said that telecom operators will continue to link mobile phones to Aadhaar for eKYC for subscriber verification despite the Supreme Court’s judgment in the Right To Privacy case.