On 14 September 2016, the Unique Identification Authority of India (UIDAI), the authority responsible for issuing and authenticating Aadhaar numbers, notified five regulations on the issuance and administration of Aadhaar numbers. Unfortunately, the regulations, which were meant to clarify the implementation process of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, are surprisingly vague.
In order to understand the problem with the regulations, it is necessary to understand the practice of delegated legislation. When the parliament enacts legislation, it usually concentrates on substantial legal and policy issues while delegating the procedural specifics to the government, which then creates the procedure for implementation through delegated legislation called rules or regulations. The problem in India is that, since most legislation is drafted by the government, it tends to delegate extensive powers to the government itself.
Simply put, the bureaucrats who actually run the government enjoy wide discretion and little accountability in how they implement parliamentary legislation. The Right to Information Act, 2005 is a perfect example of this problem. The act lays down the nature of the right to information, but the specifics of its implementation are delegated to various public authorities such as the state governments and high courts. Several of these authorities, especially the judiciary have abused this delegated power to specify prohibitively high RTI fees for filing an RTI application, additional fee per page, and appeal fees. For instance, the Allahabad High Court charges an application fee of Rs 250, as opposed to the central government’s rule, as applicable to central ministries, which charges Rs 10.
Earlier this year, I wrote in this publication that one issue with the Aadhaar bill was that it delegated too much power to the UIDAI. These powers included drafting the grievance redressal mechanism for Aadhaar users; the schemes, benefits and services that would be linked to an Aadhaar number; and the process for the authentication of the Aadhaar number.
The Aadhaar number is quickly becoming a necessity to access various subsidies and services. Given this context, the UIDAI had a moral duty to prescribe a foolproof procedural mechanism that would enforce the legislative scheme outlined in the act. Any such procedure would have to factor in the convenience of citizens and accountability of the UIDAI and its agents. The regulations notified by the UIDAI last month fail on most of these counts. If anything, they validate the criticism levied against the act. Not only do the regulations confer a wide discretion to the UIDAI in the deactivation of Aadhaar numbers but also fail to provide an effective grievance-redressal mechanism to tackle such deactivation. This grave oversight becomes ever more worrying since news reports suggest that, on the ground, Aadhaar numbers have de-facto become mandatory for a number of government services and subsidies. The legal position on whether the Aadhaar number can be made compulsory for government schemes is not yet clear: in September 2016, the Supreme Court noted that, in 2015, it had issued an order saying Aadhaar was “purely voluntary.” But the government has—through the act, and through its schemes—indicated its intention to make the Aadhaar number compulsory.