Can the Assam chief minister make NRC a condition for Aadhaar?

From October, residents of Assam who had not applied to be included in the National Register of Citizens might not be eligible to get Aadhaar.

The NRC, a mammoth exercise to identify illegal immigrants in the state, was undertaken between 2015 and 2019 and ended up excluding 19.06 lakh applicants.

On September 7, Chief Minister Himanta Biswa Sarma announced that the process of issuing Aadhaar numbers will henceforth be “strictly regulated in Assam”.

Aadhaar is a unique 12-digit number identity number issued to residents of India by a statutory body, the Unique Identification Authority of India.

“Only applicants who applied [to be included in] NRC can procure Aadhaar, irrespective of whether they made it to the NRC or not,” he said. “This will make sure that no suspected foreigners can access Aadhaar cards in Assam and it will stop the influx of illegal foreigners.”

The chief minister’s statement, however, raises several questions. As lawyers and activists told Scroll, the Assam government does not have the power to make the NRC a condition for Aadhaar. “To make a legal tenable case of this [declaration], they have to amend the Aadhaar Act and the concept of Aadhaar per se which has larger ramifications, both domestically and internationally,” said technology lawyer Nikhil Narendran.

What the UIDAI can do

Human rights activist Usha Ramanathan, an authority on the Aadhaar project, was sceptical of Sarma’s announcement. “This is just the chief minister’s expansive understanding of his powers,” she said.

She added: “The law does not give him any authority to tell the UIDAI who they can enroll, or to add anything to the information that the UIDAI may require during enrolment. If the UIDAI follows the directives of the chief minister, it will be in clear violation of the law.”

Under the current rule and regulations, the NRC is not among the list of documents that are needed for Aadhaar enrolment.

“Only the UIDAI can make regulations on the eligibility criteria for Aadhaar and the UIDAI functions under the central government,” a lawyer, who works on areas of privacy, told Scroll.

Second, Aadhaar is currently not contingent on citizenship. Under the Aadhaar Act, any person who has resided in India for “182 days or more in the 12 months immediately preceding the date of application for enrolment” is eligible for Aadhaar. But the Assam government’s proposal will link Aadhaar to citizenship claims under NRC. “Right from the start, the UIDAI project steered clear of citizenship,” said Ramanathan.

NRC not notified

Moreover, the NRC, which is meant to be a list of “genuine” Indian citizens living in the border state, has still not been notified by the central government, after objections from the Bharatiya Janata Party-led Assam government and Assamese nationalist groups.

“The government of Assam and the government of India have not notified the NRC,” pointed out Rajya Sabha MP from the Congress, Sushmita Dev. “There is no clarity on whether the NRC is valid or not. So, why should it be a basis for anything at all?”

“Suspected foreigners”

The move to toughen the Aadhaar application process came after the Assam government found that some districts allegedly have more Aadhaar card holders than its “projected population”. The chief minister did not explain what the basis of these projections are.

According to Sarma, at least four districts – Dhubri, Barpeta, Morigaon and Nagaon – all of which are Muslim-majority, have more Aadhaar card holders than their projected population. This led him to surmise that there are “suspected” foreigners who might have gotten the Aadhaar in these districts.

When asked whether the state government can make separate rules for Aadhaar, an official at UIDAI Guwahati office said that the state government “has some control” over Aadhaar enrollment.

“In one part of the process, the state government has to reject or approve the applicant in the state portal,” the official said. The official did not elaborate on what he was referring to.

The official, however, said there has been no direction from the government on making NRC an eligibility criterion yet.

“You have to understand the larger context,” a senior home department official told Scroll. “The process of NRC application had begun in 2015. This [new rule] is only being brought in so that no new people [illegal migrants], who came after 2015, can claim Aadhaar in the state.”

He went on to explain: “Suppose, some people from another country came to Assam after 2015 and started to settle here. If they apply for Aadhaar but can’t give an NRC application number, it means they came after 2014 and they are foreigners,” he said.

Officials in the state home department told Scroll that the process will be clearer once the government clarifies the standard-operating procedure through a public notification.

An earlier NRC-Aadhar ‘link’

A connection between NRC and Aadhaar in Assam was first made in 2018-’19, following the publication of a draft citizens’ register in July 2018, which left out over 40 lakh applicants.

Those excluded had another chance to prove they were citizens. Others had to defend themselves against objections to their inclusion in the draft NRC.

During this process, the biometric data of lakhs of applicants was collected by the state home department authorities, in collaboration with the Unique Identification Authority of India.

“Once the final NRC has been published such persons who are included in the NRC will be given the usual Aadhaar number as applicable to legal residents in the country,” said a document laying out the procedure for claims and objections.

The lakhs of people who provided their biometric details between February and August 2019 – in the run-up to the publication of the final register on August 31, 2019 – struggled to get Aadhaar for five years.

Their biometrics remained frozen, in some cases threatening to cut them off from food rations – until last month.

In 2022, Congress’s Sushmita Dev filed a petition before the Supreme Court seeking Aadhaar cards for those people who were included in the NRC but had their biometrics locked and were not assigned a unique identity number. The petition is pending before the court.

She questioned the use of an Aadhaar-NRC link in detecting foreigners. “A person who is applying for an Aadhaar card, whether he is in the NRC or not, has already entered your state. So, how is it stopping the influx of illegal foreigners?”

Congress leader and advocate Aman Wadud criticised any attempt to set “a separate benchmark for Aadhaar in Assam” as violating “ the principle of equality.” “There are a number of Indian citizens who could not apply for the NRC, it would be discriminatory towards them if NRC receipt is made the criteria for Aadhaar.”