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New Delhi : Government on March 2, 2019 notified 'The Aadhaar and Other Laws (Amendment) Ordinance, 2019 which amends Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, Indian Telegraph Act, 1885 and the Prevention of Money-Laundering Act, 2002.
These amendments enable use of Aadhaar for identity verification by Banks & Telcos since earlier provision (Section 57) in Aadhaar Act was struck down by the Constitution Bench of the Supreme Court, led by Chief Justice Dipak Misra, on 26 September 2018.
The ordinance necessitated because the Rajya Sabha could not approve a 'The Aadhaar and Other Laws (Amendment) Bill, 2019' after its passage by the Lok Sabha as it was promulgated on Saturday.
Highlights of the Ordinance:
Amendments in Aadhaar Act -
Recently introduced Virtual Identity equated with Aadhaar number for its use and protection.
Provisions for Offline Verification is introduced.
Voluntary enrolment of child with consent of parent or guardian and gives option to child to cancel aadhaar number on attaining 18 years of age.
Its made clear that Voluntary means informed consent of Aadhaar number holder.
Compliance with privacy and security standards under regulation is prerequisite for allowing entity to perform authentication.
UIDAI to decide whether entity can be permitted to use actual Aadhaar number or only Virtual Identity during authentication.
Entity to whom authentication request is made shall inform Aadhaar number holder alternate and viable means of identification and shall not deny any service for refusing authentication using aadhaar.
Mandatory authentication of Aadhaar number holder for provision of any service only if its required by law made by Parliament.
Consent mandatory for offline verification as well and information collected for offline verification to be used only for purpose of verification.
Offline verification seeking entity not allowed [as per sec 8A(4)(a)] to use authentication and also can not [as per sec 8A(4)(b)] collect, use or store an aadhaar number or biometric information of individual for any purpose.
Comment: Without collecting and using aadhaar number, not sure how offline verification is possible.
Substitution in section 29 (a)(3) makes it mandatory for entity to inform purpose in writing at the time of submitting any information for authentication or offline verification and disclosure for any other purpose than informed in writing is not allowed.
Substitution in section 29 (a)(4) does not permit publishing, displaying or posting publicly demographic information and photograph along with earlier covered biometric information and aadhaar number.
Changes in section 33 of the act allows disclosure of information only by orders of Judge of High Court provided that no order by court shall be made without giving opportunity of hearing to authority (UIDAI) and the concerned Aadhaar number holder.
Chapter VIA Civil Penalties has been inserted where section 33A.(1) gives provision of penalty up to one crore rupees for each contravention i.e. failure to comply with the provisions of the act by any entity in the Aadhaar ecosystem with an additional fine of up to Rs. 10 lakh per day in case of continuing non-compliance after the first contravention.
For adjudication of complaints under section 33A.(1) of VIA Civil Penalties, authority shall appoint adjudication officer equivalent to Joint Secretary or Government of India and having relevant qualification and experience. Only authority (UIDAI) can make complaints under this section.
The Telecom Disputes Settlement and Appellate Tribunal established under section 14 of the Telecom Regulatory Authority of India Act, 1997 shall be Appellate Tribunal for hearing appeals against decision of Adjudicating Officer and appeal has to be filed within 45 days from receipt of the order.
Provisions of imprisonment for offences under section 38 and 39 of the act have been changed from "three years" to "ten years".
Insertion in section 47 allows court to take cognizance of complaints made by Aadhaar number holder or individual pertaining to offence punishable under section 34 to 37 or section 40 or 41.
The ordinance omitted the Section 57 of the Aadhaar Act relating to the use of Aadhaar by private entities.
Amendments in The Indian Telegraph Act -
Insertion after sub-section 2 of section 4 allows licensed entities (telecom providers) to use aadhaar authentication or offline verification on voluntary choice of the person for providing its services. Its mandatory for entity to make other modes identification available to the person and services cannot be denied for not having Aadhaar number.
For identification of person, storage of neither his core biometric information nor aadhaar number is allowed.
Amendments in The Prevention of Money-Laundering Act -
Section 11A introduced which allows verification of identity of its client and beneficial owner upon voluntary choice of individual by aadhaar authentication by reporting entity if its banking entity or else offline verification. Its mandatory for entity to make other modes identification available to the person and services can not be denied for not having Aadhaar number.
Entity has to consult with UIDAI and regulator for issuing notification for use of this aadhaar based identity verification provision.
For identification of person, storage of neither his core biometric information nor aadhaar number is allowed.