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.

Regulation 29 and Regulation 32 of the Aadhaar (Enrolment and Update) Regulations, 2016 deal with the procedure for the “deactivation” of Aadhaar numbers, as well as the grievance redressal mechanism to handle complaints regarding deactivation and other problems that may arise with the usage of the Aadhaar number. As per Regulation 27, Aadhaar numbers may be deactivated for four specific reasons and one omnibus reason. The four specific reasons are: where more than one Aadhaar number has been issued to the same person; where an existing photograph has been used instead of a photograph at the enrolment centre; where the biometric exception clause of people with deformities or injuries is wrongly use to avoid collection of fingerprints or iris scans; and where an adult has been enrolled as a child below five years to avoid capturing of biometric information. Finally, numbers can be deactivated in any other case where the enrolment appears to be “fraudulent to the Authority.”

The deactivation of Aadhaar numbers bears serious consequences. It may deprive beneficiaries of access to subsidies and a host of other services. Yet, the UIDAI has already deactivated lakhs of Aadhaar numbers. In response to a parliamentary question on 20 March 2013, the government informed the Lok Sabha that the UIDAI had deactivated 3,84,237 Aadhaar numbers under the biometric exception claus because enrolling agencies had misused the clause to waive the biometric requirement even from those who weren’t qualified for the exception.

On the issue of the procedure to be followed during deactivation, Regulation 29 states, “deactivation may require field inquiry which may include hearing the persons whose Aadhaar number is sought to be omitted or deactivated.”. The use of the word “may” which implies that such an inquiry is optional, when compared to “shall,” which would make the enquiry mandatory, is telling. This would mean that it is up to the UIDAI to decide whether it wants to afford a person an opportunity to be heard before deactivating their Aadhaar number.

Another sub-regulation under Regulation 29 states, “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.” The regulation makes no mention of the selection process of this agency, the qualifications of the persons carrying out such inquiry or the procedure the agency must follow. The last sub-rule then states, “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.” Again, there is no clarity around which officers within the UIDAI would be authorised to carry out such deactivation or what procedure they would follow prior to deactivating the Aadhaar number. The lack of such clarity vests a large amount of discretion with the UIDAI.

According to Regulation 30, any complaints by the number holder against a deactivation can be made through the “grievance redressal mechanism” set up under Regulation 32. This regulation states that the UIDAI shall setup a “contact centre” for the resolution of queries and grievances of residents. As per the regulation, the contact centre shall be “accessible to residents through toll free number(s) and/ or e-mail, as maybe specified by the Authority for this purpose.” The Aadhaar card does provide a toll-free number and an email address for grievances. But this mechanism appears to assume, erroneously, that all of those with Aadhaar numbers in India would have access to phones and emails to lodge complaints. This maybe a mistaken assumption given that the most frequent users of Aadhaar numbers are likely going to be the poor, who receive subsidies from the state. Even presuming that an Aadhaar number holder does manage to contact the UIDAI, the efficacy of this mechanism is not proven, given the Indian experience with resolving complaints through call centres.

The next sub-regulation states, “Residents may also raise grievances by visiting the regional offices of the Authority or through any other officers or channels as may be specified by the Authority.” As per its website, the UIDAI has regional offices in only eight states, all of which are located in urban centres. Implicitly, 21 states don’t even have the UIDAI on their soil. Once again, the regulations fail to mention the procedure the UIDAI must follow with respect to timelines and safeguards while handling complaints.

Any consequent delays in addressing a person’s grievance regarding the deactivation of their Aadhaar number would be taking place while such a person is devoid of access to any subsidies or services. This person could be a resident of a village looking for rations to feed their family or a senior citizen in an urban area, hoping to avail of concessions while booking a ticket with the Indian Railways.

As per Section 55 of the legislation, the next step for these regulations is for them to be placed before each house of the parliament for a total period of 30 days. During this period, either house can vote to amend the rules. But this vote is not mandatory, which means that unless an MP specifically moves a resolution for amendment or annulment, the regulations stand. It is unclear whether the opposition will choose to move such a resolution—in March, the Rajya Sabha, in which it has a majority, suggested five amendments to the Aadhaar Bill. At the time, the opposition could not vote against the legislation since the bill had been introduced as a money bill. But the Lok Sabha, where the ruling party holds more seats, rejected the recommendations.