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Non-exclusion and non-discrimination

Some aspects of universality can be addressed in the enabling legislation, but here, the focus is on ensuring that the ID system is not discriminatory or exclusive. In that sense, ID systems should not exclude linguistic, ethnic, religious or other vulnerable groups. Furthermore, the country’s identity ecosystem should cover both citizens and residents.

Multiple constitutional provisions, laws, international conventions, regulations, and policies have the potential to impact the inclusivity of the ID system, including many of the ID system enabling laws. This includes, for example, those related to:

  • The mandatory nature of the ID system

  • Who is eligible for the ID system, including citizens and non-citizens, children and adults

  • The definition and determination of nationality and legal status

  • The collection of sensitive biographic information and biometrics

  • Non-discrimination and protection of minorities (e.g., based on gender, race, ethnicity, religions, disability, etc.)

  • Migrants

  • Refugees

  • Stateless populations

  • Fees charged for ID services

  • Required identity evidence for enrollment (e.g., requiring proof of citizenship)

Such policies, laws, and regulations can therefore directly or indirectly affect the exclusion and/or targeted discrimination of multiple groups, including:

  • Individuals who do not speak an official language

  • Racial, ethnic, or religious groups

  • Women and girls

  • Persons with disabilities

  • The elderly

  • Individuals in remote or inaccessible areas

  • Undocumented adults

  • Undocumented children, or children of undocumented adults

  • Refugees

  • Migrants

  • Stateless persons

  • Gender and sexual minorities

  • Neglected, abandoned, or orphaned children

  • The mentally ill

  • Others

To ensure universal coverage of the ID system, the legal framework should therefore be updated to remove or amend the above laws to excise explicit instances of discrimination and other barriers to access. Practitioners should also ensure compliance with international norms and conventions that enshrine the right to recognition before the law and require governments to provide every refugee, stateless person, and internally displaced person with a means of identifying themselves (e.g., in the form of passports, identity documents, birth certificates, etc.), including the UN Convention relating to the Status of Refugees (Article 27), the Convention relating to the Status of Stateless Persons (Article 27), the UN Guiding Principles on Internally Displaced Persons (Principle 20), and the Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Article 13).

In addition to the above, practitioners should pay special attention to policies, laws, and regulations related to design-features of the ID system that have the potential to exclude significant portions of the population. This includes whether or not the ID is mandatory, which is discussed below, and topics discussed in a variety of other sections in this Guide, including who is eligible to register in the ID system (including citizens and non-citizens), which data are collected, registration procedures and strategies, what technology is used for credentials and authentication, mechanisms for public engagement, and more.

Box 14. Examples of legal measures for inclusion

In some countries, inclusion efforts are built into the legal framework for ID. In India, for example, the Aadhaar Act calls for special measures to ensure the inclusion of women, children, senior citizens, persons with disabilities, unskilled and unorganized workers, nomadic tribes and other categories of individuals as may be specified by regulations (Aadhaar Act 18 of 2016, §5).

Source: Adapted from the ID Enabling Environment Assessment (IDEEA).
Mandatory nature of ID

Some countries have ID systems that are explicitly mandatory, in the sense that the law imposes a sanction for failure to enroll. However, even where the ID system is ostensibly “voluntary,” it may become mandatory in practice if it is required to access to services and other transactions, making it impractical for anyone to opt out.

A strict conditioning of essential government services on the presentation of a specific ID can be problematic if access to that ID system is not universal or is applied in discriminatory ways. This problem can be particularly acute when IDs are required for services (like financial services that require KYC) but are provided only to nationals, unless alternative means are made for residents and other groups ordinarily living in a country—e.g., migrants, refugees, and stateless persons—to access public and private sector services. A number of jurisdictions have seen legal challenges to the constitutionality of mandatory ID systems, including India, Jamaica, and Kenya. In the United States, for example, certain religious groups challenged the requirement to obtain a social security number and were exempted (see Social Security - Program Operations Manual System).

In addition, some countries make it compulsory for people to carry physical identity credentials with them at all times and impose fines or other sanctions for failure to do so. Such systems have been criticized on the grounds that they create too many openings for abuse. Demanding that credentials be shown can be an avenue for police harassment of minority groups or persons who appear “foreign” and so are suspected of being undocumented immigrants, as well as serving as a prelude to more intrusive searches or investigations. It may also make people unnecessarily fearful of a situation where their ID credential is lost, stolen or destroyed. The mere fact of having to prove identity in a public space for no particular purpose may impinge on an individual’s privacy—such as laws applied in apartheid South Africa. However, public attitudes about requirements such as these may vary depending on the local legal and cultural attitudes.

Box 15. Additional resources on legal frameworks

For more on legal and regulatory frameworks, see