The Bombay High Court has asked the central government to consider amending the Aadhaar Act, 2016, to create a mechanism that would help authorities trace foreign nationals residing illegally in India, including those who have overstayed their visas or entered the country through irregular means. A division bench of Chief Justice Alok Aradhe and Justice Sandeep Marne made the recommendation while hearing a public interest litigation concerning the issuance of Aadhaar cards to non-citizens.
The court observed that foreign nationals have been able to obtain Aadhaar — India’s biometric-based identity document issued by the Unique Identification Authority of India (UIDAI) — by submitting documents such as visas and passports without adequate cross-verification by the issuing authority. The bench noted that this gap, combined with what it described as weak inter-agency coordination, had created a significant loophole in immigration enforcement and raised potential national security concerns.
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, does not currently distinguish between Indian citizens and foreign nationals. Because Aadhaar is widely accepted as a primary identity document across both public and private services, the court observed that the absence of a clear differentiation between citizens and non-citizens within the framework complicates the work of immigration and law enforcement agencies tasked with tracking individuals whose visas have expired or who entered the country without valid documentation.
The bench directed the Centre to examine the feasibility of amending the law to incorporate provisions that would help differentiate between citizens and non-citizens within the Aadhaar framework, and assist in identifying those who are in the country illegally.
Why It Matters
The court’s intervention comes amid continuing concerns over immigration enforcement in India, particularly in states bordering Bangladesh, Myanmar, and Pakistan, where the detection of undocumented foreign nationals has periodically generated political controversy. Reports of large-scale detection drives and detention of suspected illegal immigrants have appeared in several states, including Maharashtra, which falls under the Bombay High Court’s territorial jurisdiction.
The ruling draws attention to a structural feature of India’s identity ecosystem: Aadhaar, the world’s largest biometric identification programme covering more than a billion residents, was designed primarily as a tool for delivering welfare subsidies and financial benefits, not as a mechanism for verifying citizenship or immigration status. Its subsequent adoption across a wide range of government and private services has, however, made it the de facto identity document for residents regardless of legal status.
The court’s observation that Aadhaar is being issued to foreign nationals on the basis of visas and passports without adequate cross-verification points to what the judges described as a coordination gap between UIDAI, the Ministry of External Affairs, the Bureau of Immigration, and the Foreigners Regional Registration Offices (FRROs), which maintain records of foreign nationals staying in India.
Background and Context
The Aadhaar Act, 2016, was enacted to provide for the targeted delivery of subsidies, benefits, and services funded from the Consolidated Fund of India to individuals residing in the country, using biometric and demographic data. The Act defines “resident” broadly, including individuals who have resided in India for 182 days in the 12 months immediately preceding the date of application, irrespective of citizenship status. Foreign nationals holding valid visas of a certain duration are therefore eligible to enrol for Aadhaar.
The Act does not require proof of Indian citizenship, and Aadhaar enrolment is based on documentary verification through a list of approved documents, which include passports and other identity papers held by both citizens and non-citizens. While UIDAI has issued guidelines requiring the capture of visa details and other immigration information for non-citizens applying for Aadhaar, enforcement of these guidelines has been uneven, according to the observations recorded by the court.
The Supreme Court of India, in its 2017 judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India, upheld the constitutional validity of Aadhaar but imposed restrictions on its mandatory use, holding that it could not be made a precondition for accessing certain services. The judgment, however, did not directly address the question of Aadhaar enrolment by non-citizens.
The Bombay High Court’s recommendation adds a new dimension to the ongoing debate about the scope and limits of Aadhaar, particularly in relation to immigration enforcement. The court has not issued a formal ruling mandating amendments to the Act but has asked the Centre to consider the feasibility of changes that would enable differentiation between citizens and non-citizens within the Aadhaar framework.
What to Watch Next
The central government’s response to the court’s suggestion will be a key indicator of the direction of policy. Any amendment to the Aadhaar Act would require legislative action and would likely need to address several complex issues, including data privacy protections, the scope of biometric collection for non-citizens, and the interoperability of Aadhaar data with immigration databases.
A central question will be whether the government considers it feasible to create a distinct category within the Aadhaar framework for non-citizens, or whether it opts for a separate registration mechanism for foreign nationals. The court has also flagged the need for better coordination between UIDAI and immigration authorities, which may prompt administrative changes even in the absence of legislative amendment.
The outcome of the ongoing public interest litigation, and any further directions the court may issue, will provide additional clarity on the specific measures the judiciary expects the government to consider. Legal experts are also likely to examine the implications of any proposed amendment for the privacy safeguards established under the Aadhaar Act and the broader legal framework governing the use of biometric data in India.
Analysis
The Bombay High Court’s recommendation reflects a structural tension at the heart of India’s identity infrastructure. Aadhaar was designed as a welfare delivery tool, not a citizenship verification system, yet its near-universal adoption across public and private services has made it the default identifier for anyone residing in the country, regardless of legal status. The court’s suggestion to amend the Act to address this gap raises complex questions about the appropriate scope of Aadhaar, the adequacy of data privacy protections for non-citizens, and the practical limits of biometric identification.
Any amendment would need to balance national security and immigration enforcement objectives against the legal framework governing Aadhaar’s use, including the Supreme Court’s rulings on mandatory linkage and privacy. The court’s intervention also reflects broader concerns about the absence of a comprehensive, real-time immigration database in India that can be cross-referenced with civil identity records. While the creation of such a database is beyond the scope of the Aadhaar Act, the court’s observations suggest that judges see the existing identity infrastructure as inadequately equipped to support immigration enforcement, and are open to legislative solutions that would close the gap.
Conclusion
The Bombay High Court’s suggestion to consider amending the Aadhaar Act to help trace foreign nationals staying illegally in India underscores the growing intersection between India’s identity infrastructure and its immigration enforcement challenges. The recommendation, though advisory rather than mandatory, signals judicial recognition that the current design of Aadhaar — broad in scope, agnostic to citizenship — has created vulnerabilities that have been exploited. The Centre’s response, and any subsequent legislative or administrative action, will determine whether the gap identified by the court is addressed through changes to the Aadhaar framework itself, through improvements in inter-agency coordination, or through the creation of a parallel system for tracking non-citizens.
Sources
The Hindu – https://www.thehindu.com/news/national/consider-amending-aadhaar-act-to-help-trace-foreigners-staying-illegally-in-india-bombay-high-court-to-centre/article71393172.ece
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Story synopsis gathered from: The Hindu – National — source
