Rejoice! Aadhaar, that hated enemy of the lefty-liberal types, can no longer be used as a bogeyman to scare people! The Supreme Court doesn’t even need to set up a 5-judge bench to decide whether Aadhaar violates privacy, because Aadhaar is no longer required for anything! Nobody is forcing you to link Aadhaar to anything!
At this point you’re probably blaming us for selling you fake news, or perhaps wondering why I’m saying such preposterous things.
Well, just ask Minister for Law & Justice and Information Technology, Mr Ravi Shankar Prasad. When asked why the government was making Aadhaar mandatory for all facilities, he replied unequivocally that:
But is that really true? Despite what Mr Prasad tweets, there are at least 6 basic facilities for which you are being forced to have Aadhaar for, whether by government decree or not.
Mobile Numbers
Are you being forced to link your mobile number to Aadhaar?
Yes.
Who’s forcing you?
Mobile phone companies, who say the Central Government requires this.
Was Mr Prasad wrong?
According to him, no, because the Supreme Court has ordered this.
But that’s an alternative fact, i.e. about as true as a parent’s explanation to a 3-year-old of where babies come from.
The Supreme Court never ordered anything of the sort. In February, they dismissed a petition filed by Lokniti Foundation (asking for better verification for prepaid mobile numbers), noting that the government assured the Court that linking to Aadhaar would solve the problem. The Court issued no directions.
What’s the legal basis?
A Department of Telecom circular on e-KYC procedures, dated 23 March, 2017, which claims that the Supreme Court order in February amounted to a direction to them. But this claim is far removed from facts.
Is there a way out?
Leave it till February 2018 and hope the Supreme Court holds that Aadhaar is unconstitutional.
Will that work?
Only if the Supreme Court hears the matter urgently. And even then there’s no guarantee. So not the best idea.
Bank Accounts
Are you being forced to link your bank account to Aadhaar?
Yes.
Who’s forcing you?
Banks, who are required to do this because of a notification issued by the Central Government, and who are threatening you with your account being clocked if you don’t.
Was Mr Prasad wrong?
Appears to be.
What’s the legal basis?
The Prevention of Money-laundering (Maintenance of Records) Rules, 2005 (amended by a notification dated 1 June 2017).
Is there a way out?
Rule 9 which requires Aadhaar to be part of the client information that must be verified, technically only applies at the commencement of an account-based relationship, or when transactions worth Rs. 50,000 or more are carried out, or when international money transfer operations are carried out.
So if you already have a bank account, and never engage in a transaction (or series of connected transactions) worth Rs. 50,000 or send or receive money abroad, you can get away with not linking your Aadhaar details.
Will that work?
Your bank won’t let you do this without a fight, and you’ll probably end up on the radar of the RBI and the Income Tax Department, so not really a great idea. Plus, what happens if you receive or have to make any large payment?
Death Certificates
Are you being forced to quote an Aadhaar number to get a death certificate?
Yes. And not just the number of the deceased, but the Aadhaar number of the person applying for the certificate as well as the Aadhaar number of the deceased’s spouse and parents.
Who’s forcing you?
The Registrar General India, Ministry of Home Affairs, i.e., the Central Government.
Was Mr Prasad wrong?
Obviously. Nobody raised this in direct response to his tweet, but it is another example of disingenuousness by the government relating to Aadhaar.
Of course, the Central Government tried to clarify that Aadhaar was not mandatory for getting a death certificate, since if an applicant doesn’t know the deceased’s Aadhaar number, they will be required to provide a certificate that the deceased person “does not possess Aadhaar number to the best of his/her knowledge”.
Note that this is an exception to the rule of providing the Aadhaar number and that this exception only applies where you declare that you don’t think the deceased had an Aadhaar number. So if they did, but you can’t find the number, you can’t claim the exception. Note also that if you give a false declaration (for eg where you know the person had Aadhaar but can’t find it), you’ll have committed a criminal offence.
What’s the legal basis?
Notification by Registrar General India, Ministry of Home Affairs, dated 4 August 2017 – press release available here.
Is there a way out?
The notification doesn’t apply in Jammu & Kashmir, Assam & Meghalaya. If you’re not from there, make sure you plug your ears and make “lalalalalalala” noises anytime anyone you might need to get a death certificate for starts to talk about Aadhaar. Or make for the hills anytime anyone you know dies.
Will that work?
Don’t count on it.
Income Tax Returns
Are you being forced to link your income tax returns to Aadhaar?
Yes.
Who’s forcing you?
The Central Government and the Income Tax Department.
Was Mr Prasad wrong?
I’m afraid so. The Government doesn’t even deny that they’re forcing people to do this, with Finance Minister Arun Jaitley happily admitting to it in Parliament.
What’s the legal basis?
Section 139AA of the Income Tax Act, 1961, inserted by the Finance Act 2017 earlier this year with essentially no Parliamentary scrutiny.
Is there a way out?
Not anymore. Unless the Supreme Court finds Aadhaar to be unconstitutional before the next time you have to file your tax returns.
Will that work?
Totally… not. See section on Mobile Numbers.
NEET & Other Exams
Are you being forced to link your income tax returns to Aadhaar?
Yes.
Who’s forcing you?
The Central Board of Secondary Education, as directed by the Union Human Resources Development Ministry.
Was Mr Prasad wrong?
Definitely.
What’s the legal basis?
Regulations framed under the Indian Medical Council Act,1956, details of which can be found in this public notice from the CBSE dated 31 January, 2017.
Is there a way out?
Not unless you’re in Jammu & Kashmir, Assam & Meghalaya. Or if you just don’t want to appear for NEET.
Will that work?
If you’re happy with giving up any dreams of becoming a doctor, yes. Or whatever other examination/course next requires it (JNU and DU are already being hauled up for demanding Aadhaar numbers of students to sit for exams).
Delhi Government Schools
Are you being forced to link your income tax returns to Aadhaar?
Yes.
Who is forcing you to?
The Delhi Government, according to various news reports.
So Mr. Prasad was wrong?
Indeed. Though at least in this case, the Central Government has nothing to do with it (though there have been issues with the CBSE and other state governments in demanding Aadhaar numbers from students).
What’s the legal basis?
That’s not entirely clear. The Delhi Directorate of Education has supposedly issued a notification about this, a lot of witnesses have come forward, and the matter is to be challenged in the Delhi High Court. You can read more about this here, and the effects it is having on migrant children here.
Is there a way out?
Sadly, no. The Delhi government allowed provisional admission of 24 kids from Chilla Khadar who didn’t have Aadhaar, but gave them 30 days to enrol in the system.
Will that work?
N/A
To Conclude: Was Mr Prasad Getting Creative With Facts?
Well, strictly speaking, no, his statement was technically true. He said that nobody was forcing you to link Aadhaar to all facilities. So as long as there are some things Aadhaar is not linked to, he can’t be accused of pulling a Kellyanne Conway.
The list of such things is of course growing shorter, with everything from LPG subsidies to midday meal schemes already linked to Aadhaar, and with many more such plans in the pipeline, including for driving licences and regulatory filings.
So he can still rely on that technicality for a few more weeks. But the information we are being provided about Aadhaar’s linkage to various facilities is problematic, as discussed earlier, and no amount of semantic nitpicking can get around that.
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