A Letter to UIDAI

[The Joint Forum against NRC, a platform of mass organisations, civil society groups and individuals formed in August 2019 at Kolkata, to defend the citizenship of all Indian people from exclusionary processes like the NRC. The Forum is opposed to any nation-wide NRC exercise, which can potentially exclude millions of poor, vulnerable people from Indian citizenship; particularly the post-Partition refugees, Scheduled Castes, Scheduled Tribes, religious and linguistic minorities, Other Backward Classes and undocumented migrants; rendering them Stateless. Prasenjit Bose, the petitioner on behalf of the Forum in W.P.(C) # 001512/ 2019 has challenged the constitutionality of the Citizenship Amendment Act (CAA), 2019 and Section 14A of the Citizenship Amendment Act, 1955. The petition was admitted and is currently pending before the Hon'ble Supreme Court of India.

Prasenjit Bose wrote a letter on February 23, 2024 to Sri Amit Agarwal, CEO, Unique Identification Authority of India (UIDAI) to draw his immediate attention, the utter chaos and confusion created by notices issued by the Ranchi Regional Office of UIDAI containing information about 'deactivation' of several Aadhaar numbers to a large number of residents in the State of West Bengal. We publish below a slightly shortened version of the letter written by Prasenjit Bose who is convener of Joint Forum Against NRC.

The Forum has received several communications from affected persons whose Aadhaar numbers have been deactivated by the UIDAI, purportedly under regulation 28A of the Aadhaar (Enrolment and Update) Regulations, 2016, stating that the "requirements for your stay in India are not fulfilled.]

1.   Such abrupt deactivation of Aadhaar numbers by the Authority has instilled significant anxiety and fear in the minds of not only the recipients of the notices but also a vast majority of other residents of West Bengal who have enrolled for Aadhaar. The total number of Aadhaar enrolments in West Bengal stands at 10,21,86,948 as on date, as per data provided in the UIDAI Aadhaar Dashboard.

2.   It is hereby submitted that Regulation 28A of was not a part of the Aadhaar (Enrolment and Update) Regulations, 2016 till very recently. The Authority vide the Aadhaar (Enrolment and Update) Amendment Regulations, 2023 [F. No. HQ-21026/1/2022-LEGAL-HQ (E)] dated September 29, 2023 has inserted Regulation 28A in the Aadhaar (Enrolment and Update) Regulations, 2016.

3.   The text of Regulation 28A reads as follows:
"28A. Deactivation of certain Aadhaar numbers.—Without prejudice to anything contained in regulation 28, in respect of a foreign national who is seeking enrolment or is an Aadhaar number holder, Aadhaar number may be deactivated—

(a) upon expiry of the period of validity of their visa for stay in India; or

(b) where the Authority is satisfied that such foreign national does not fulfil the requirements for his entry into or stay in India under the Passport (Entry into India) Act, 1920 (34 of 1920), the rules made thereunder and guidelines issued by the Ministry of Home Affairs in this regard from time to time.”

4.   Thus, the entire Regulation 28A is concerned with foreign nationals, and therefore anybody receiving notices under such regulation is purportedly a foreign national in the eyes of the Authority. However, the process through which the Authority has satisfied itself that aAadhar number holder "does not fulfil the requirements for his entry into or stay in India under the Passport (Entry into India) Act, 1920" is unspecified in Regulation 28A. This makes the process opaque and arbitrary.

5.   Regulation 29 of Aadhaar (Enrolment and Update) Regulations, 2016 states that "(1) Any case reported or identified as a possible case requiring omission or deactivation may require field inquiry which may include hearing the persons whose Aadhaar number is sought to be omitted or deactivated...(2) An agency nominated by the Authority shall examine/inquire and submit a report to the Authority as per the procedures as may be specified by the Authority for this purpose. (3) The Authority may initiate necessary action upon receiving the report and the decision to omit or deactivate an Aadhaar number shall lie with the Authority".

6.   Several recipients of the recent Aadhaar deactivation notices issued by the Authority have confirmed that the process of conducting field inquiry and hearing the concerned persons prior to deactivation of Aadhar numbers, as laid down in Regulation 29, has not been followed before deactivating their Aadhaar numbers. These recipients have complained that their access to several essential services like the public distribution system, banking, life and health insurance, telecommunications etc. besides a host of welfare schemes of the central and state governments, have been jeopardised because of the deactivation of their Aadhaar number.

7.   The actions of the Authority have thus led to a severe disruption in the lives and livelihoods of those affected by Aadhar deactivation, as per the discretion of the Authority, and without any prior caveat or opportunity for the aggrieved person to represent their case. Hence, the entire action is in defiance of the principle of natural justice and amounts to a gross violation of Article 21 of the Indian Constitution.

8.  It is further submitted that through the insertion of Regulation 28A into the Aadhaar regulations, the Authority has arrogated to itself the power to determine or adjudicate whether an Aadhaar number holder is a foreign national, which is prima facie illegal and ultra vires of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 [hereinafter Aadhaar Act, 2016]. The Aadhaar Act, 2016 categorically describes itself as:

      "An Act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India [or the Consolidated Fund of the State], to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto."

      Thus, all "individuals residing in India" who are entitled to publicly funded subsidies, benefits and services are to be assigned Aadhaar numbers by the Authority. The determination of citizenship, nationality or legality of any migration is outside the scope of Aadhar Act, 2016.

10. The Forum wishes to further affirm that the power to determine Indian citizenship and decide whether a person is a foreign national is provided only under the Citizenship Act, 1955 r/w the Foreigners Act, 1946. According to Section 6A(1)(b) of the Citizenship Act, “detected to be a foreigner” means detected to be a foreigner in accordance with the provisions of the Foreigners Act, 1946, and the Foreigners (Tribunals) Order, 1964 by a Tribunal constituted under the said Order. In SarbanandaSonowal v. Union of India, the Hon’ble Supreme Court held that:

      “This amendment of the Citizenship Act makes it clear that the question of determination or detection of a foreigner is to be governed by the provisions of the existing Central legislation viz. The Foreigners Act, 1946 and the Foreigners (Tribunals) Order, 1964.”
Nothing in the text of the Aadhar Act, 2016 grants to the Authority any such power of determining and regulating citizenship. In other words, the Authority is not authorized to determine whether a person is an Indian citizen or a foreign national. As such, Regulations 28A and 29 of Aadhaar (Enrolment and Update) Regulations, 2016, which require the Authority to make such determinations, are ultra vires the parent statute.

11. The Forum further observes that Regulations 28A and 29, taken together, are not only colorably acting as a medium of determining the citizenship of an Aadhaar holder, but are also doing so in an inherently arbitrary manner. It appears as if the Authority has suddenly discovered that certain Aadhaar enrolments are not valid because such enrolled persons' entry or stay in India does not satisfy the conditions of the Passport (Entry into India) Act, 1920. The process of identifying such Aadhar enrolments is undisclosed.

12. The notices sent by the Authority to deactivated Aadhaar holders does not specify which requirement of stay under the Passport Entry Act has been violated or which guidelines of the Ministry of Home Affairs are applicable in this case. In any case, these conditions were non-existent when many of the recipients of the Authority's deactivation letters in West Bengal had applied and enrolled for Aadhar. To apply Regulation 28A, introduced only in September 2023, with retrospective effect and deactivate the Aadhaar of residents, whose Aadhar enrollment happened many years ago, is manifestly unjust and arbitrary.

13. It is a settled position of law that when rule-making power is conferred by an Act, it does not enable the rule-making authority to make a rule that travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto. Yet, that is precisely what has happened in the case of Regulation 28A of the Aadhaar (Enrolment and Update) Regulations, 2016.

14. The Authority had clearly held in May 2023 that its mandate was confined to issue Aadhaar to eligible residents under the Aadhaar Act, 2016 following the due process, and that Aadhar does not confer any right or proof of citizenship. The Authority had also held in June 2023 that issues relating to "illegal migrants" allegedly being issued Aadhaar are to be addressed by State Governments since "law and order" falls within their ambits. The about-turn from the Authority's stated position in May-June 2023, to the introduction of Regulation 28A in September 2023 and issue of notices of Aadhaar number deactivation to a large number of residents in West Bengal in February 2023, is quite bewildering.

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Vol 56, No. 41, Apr 7 - 13, 2024