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The Supreme Court last year upheld the validity of the Aadhaar Act, while striking down some potentially problematic provisions. However, some issues related to the Act – particularly those regarding data privacy – were left unaddressed.
In an attempt to correct its course, the Centre drafted The Aadhaar and Other Laws (Amendment) Bill, 2018. Tabled today in the Lok Sabha, the Bill aims to make certain changes to the 2016 Act.
Among other changes, the Bill envisions enhanced penalties for entities found to be in breach of the safeguards specified in the Act, gives minors enrolled under the Scheme the option to cancel their Aadhaar number upon turning eighteen, and provides that the Telecom Disputes Appellate Tribunal (TDSAT) will hear appeals against decisions of the Adjudicating Officer under the Act.
Below is a breakdown of the changes sought to be introduced by the Bill.
Aadhaar & Children
With the insertion of a new Section 3A, the agency is required to seek the consent of the parent or guardian of the child who is being enrolled. Importantly, a child enrolled under the Scheme has the option to cancel her Aadhaar number within six months of attaining majority.
Moreover, a child may not be denied any subsidy or benefit in case of failure to furnish proof of possession of an Aadhaar number.
Voluntary use of Aadhaar
Section 4 of the Act is amended in order to provide that an Aadhaar number holder may voluntarily part with his details by way of authentication or offline verification. Moreover, the entity is required to inform the card holder of alternative forms of identification. As per the Bill,
“(6) Every requesting entity to whom an authentication request is made by an Aadhaar number holder under sub-section (3) shall inform to the Aadhaar number holder of alternate and viable means of identification and shall not deny any service to him for refusing to, or being unable to, undergo authentication.”
For offline verification of Aadhaar, the requesting entity is required to disclose the following information to the card holder:
(a) the nature of information that may be shared upon offline verification;
(b) the uses to which the information received during offline verification may be put by the offline verification-seeking entity; and
(c) alternatives to submission of information requested for, if any.
The entity is barred from
(a) subjecting an Aadhaar number holder to authentication;
(b) collecting, using, or storing an Aadhaar number or biometric information of any individual for any purpose;
(c) taking any action contrary to any obligation on it as may be specified by regulations.
Further, no information can be used or disclosed by the entity, expect for informing the person applying for offline verification.
Earlier, Section 33 of the Act empowered a District Judge to pass an order requiring disclosure of Aadhaar information. As per the Bill, only High Court judges and superior judges may do so.
Further, the proviso to Section 33 has been amended to give both the Unique Identification Authority of India (UIDAI) as well as the Aadhaar card holder concerned the opportunity to be heard before such orders are passed.
It is also provided that core biometric information shall not be disclosed under this Section.
A new Section 33 provides that the TDSAT shall be the Appellate Tribunal for the purposes of hearing appeals against the decision of the Adjudicating Officer. Appeals against orders of the TDSAT shall lie with the Supreme Court of India.
Earlier, Section 47 of the Act provided that no court shall take cognizance of any offence punishable under the Act, except on a complaint made by the UIDAI or any officer or person authorised by it. The Bill has now added a proviso stating that a court may take cognizance of a complaint made by an Aadhaar card holder with respect to offences punishable under Sections 34, 35, 36, 37 or 41 of the Act.
Through the introduction of a new Section 33A, the Bill aims to punish entities failing to comply with provisions of the Act with civil penalties that may amount to a fine of one crore rupees for each contravention. In case of a continuing failure, a penalty of ten lakh rupees may be imposed for each day the failure continues.
The penalty for contravention of Section 38 of the Act, which deals with unauthorized access to the Central Identities Data Repository (CIDR), has been enhanced from a three-year sentence to a ten-year one. The same applies for anyone tampering with date stored in the CIDR in order to access or modify any Aadhaar number contained therein.
The punishment for offences for which no penalty is specified under the Act has been enhanced from one year to three years’ imprisonment.
Omission of Section 57
In line with the Supreme Court judgment that read it down, Section 57 of the Act has been omitted in the Bill. The provision gave the State or a body corporate the power to use Aadhaar number for establishing the identity of an individual for “any purpose”.
Read the full text of the Bill: