Sudhanva Shetty Shetty
Writer, coffee-addict, likes folk music & long walks in the rain. Firmly believes that there's nothing more important in a democracy than a well-informed electorate.
Last week, UIDAI (the statutory body that collects Aadhaar data) again reiterated its stance that the Supreme Court had “directed” the government to ensure that mobile SIMs are linked with Aadhaar before February 2018.
— Aadhaar (@UIDAI) September 30, 2017
Different telecom service providers have been sending customers messages regarding the same, pushing them to link their Aadhaar number with their mobile number. “As per government’s directive, it is mandatory to link Aadhaar card with your mobile number,” many of these messages read.
By “government’s directive”, the telecom service providers are referring to a directive from the Department of Telecommunications (DoT) dated March 23, 2017. This DoT directive called on all telecom operators to conduct an Aadhaar-based re-verification exercise of all existing pre-paid and post-paid mobile connections by 6 February 2018.
The DoT directive too cited the Supreme Court’s “direction”.
Firstly, what is in question is an observation by the SC, and not a direction. The former is a mere statement or reiteration of an argument while the latter is a binding order that has to be followed.
Secondly, the observation in question was made by the apex court in Lokniti Foundation v Union of India (read entire order here) on February 6. This case led to the Court directing the central government to ensure 100% verification of mobile phone subscribers with regard to their identity and ensuring that no fake or unverified identities should be accepted while issuing SIM cards.
The SC asked the government on how this could be achieved.
The government, in turn, filed a counter-affidavit regarding the same and explained how Aadhaar is a way of verifying numbers where authentication is based on consumers’ biometric and demographic data. Additionally, the centre opined that Aadhaar was the best form of e-KYC for new customers.
Know your customer (KYC) is the process of a business identifying and verifying the identity of its clients. The same when done online is called e-KYC. The centre argued that new mobile users could be verified via Aadhaar and existing pre-paid users could be verified when it was their turn for renewal.
The Supreme Court made note of the centre’s arguments and reverted to the issue of phone verification by saying that “a similar verification” would be completed in a year so as to ensure 100% verification of mobile phone subscribers.
Nowhere does the Court state that Aadhaar numbers should be linked with mobile SIMs. The Court merely took cognisance of the centre’s arguments and reverted to its case, hoping that a “similar” process would be adopted (more).
Moreover, nowhere is the plight of post-paid users discussed. This was again because of the fact that the statements made by the Court were an observation, not a directive. The order is only three pages long – how can it even appear to be a directive, which is supposed to be detailed and explanatory?
But the centre has interpreted the Court’s statements as a directive and issued its order directing telecom companies to see to the linking of Aadhaar to SIMs. This is yet another step in the government’s eagerness to increase the scope of Aadhaar. And it has also caused great confusion among consumers, with rumours that noncompliance will lead to deactivation of SIM cards.
Lawyer Apar Gupta, who assisted in the right to privacy case, called the centre’s justification “at best suspect and at worst damages the institutional credibility of the Court”.
It must also be remembered that the apex court is slated to hear pending litigation on Aadhaar in November this year. The elevation of the right to privacy as a fundamental right in August has changed the dynamics of the Aadhaar debate, and critics are saying the government’s haste to link mobile numbers with Aadhaar is uncalled for.
Last but not least, the government, the DoT and UIDAI have remained mum about the SC’s repeated reminders that Aadhaar cannot be made mandatory, in itself or for “any service”. Provided below are a few such instances.
- given the misinterpretation of the Supreme Court’s observations as a directive,
- given the incomplete nature of the Supreme Court’s observations (when it comes to post-paid users) in the first place,
- given that Aadhaar’s mandate has been seriously constrained following the Supreme Court’s right to privacy judgement in August,
- given that the legality of Aadhaar itself will be decided by the Supreme Court around November 2017,
- given that the Supreme Court has told the centre on numerous occasions in the past that Aadhaar cannot be made mandatory for “any” service,
the question arises as to why the DoT, UIDAI and the central government are not suspending their plans to link Aadhaar and SIM cards, clarify the widespread confusion and wait for an actual directive from the Supreme Court?
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