Thread by @internetfreedom

The pilot program introducing Aadhaar-based facial recognition for COVID-19 vaccination has begun in Jharkhand. The new "Good Governance" Rules allow this.

Thread on how they do it, and why we have approached authorities about their unconstitutionality.
internetfreedom.in/bad-rules-for-…

In 2016, the Aadhaar Act brought Aadhaar to India, giving the UIDAI decision-making power over its use. This year, the "Good Governance" Rules came into play, empowering the Centre to allow some entities to engage in Aadhaar authentication (like the facial recognition drive).

Aadhaar has been criticised for years - the 2016 Economic Survey showed severe exclusion due to authentication failure. Jharkhand itself saw a 49% failure rate. The data security and privacy issues surrounding Aadhaar are also widely known.

1. According to the Aadhaar Act, authentication can be used for *certain* subsidies and services. But due to vague wording of the Rules, any govt project can propose it. Thus the Rules expand the scope of the Act, which is unconstitutional (especially since it was a money bill).

2. The SC's Aadhaar Judgement limits the govt's use of authentication and disallows private use. But what if a ‘requesting entity’ (which is not defined) is a public-private partnership? Since the 2019 Amendment permits private parties access to Aadhaar numbers, this is worrying.

3. The Rules are supposed to be voluntary, but the Government pushes Aadhaar to become India's preferred mode of verification/authentication, making it de-facto mandatory. E.g. The Road Transport Ministry has proposed to use Aadhaar for online applications for driver's licenses.

4. The Rules include vague terms like ‘good governance’, ‘social welfare benefits’, ‘spread of knowledge’, ‘satisfied', etc. They lack guidelines to help authorities decide how they will operate, or to what extent. This amounts to excessive delegation which would be illegal.

5. For the Rules to be accepted, these conditions must be met:
a) Legality/existence of a law,
b) Legitimate state aim,
c) Proportionality of objectives and means to achieve them.
The objectives are vague and do not define the State aim so they fail the proportionality test.

We have approached the Chairpersons of the Lok Sabha and Rajya Sabha Committees on Subordinate Legislation petitioning them to take up the Rules for review and test them for constitutionality. We thank Maansi Verma, founder of Maadhyam, and @no2uid for this collaborative work.