Today's Editorial

09 July 2017

Aadhaar ambivalence


Source: By Sam Rajappa: The Statesman


Aadhaar was conceived by the United Progressive Alliance government of Manmohan Singh as a scheme to provide every Indian a unique identity number with a view to enabling a fair and equitable distribution of benefits and subsidies. The Unique Identification Authority of India was constituted by a notification dated 28 January 2009 by the Planning Commission.

It did not have any statutory backing. Subsequently, draft legislation was introduced in the Rajya Sabha in December 2010 as an ordinary Bill. The BJP opposed it tooth and nail. A standing committee of Parliament expressed grave misgivings over privacy and data protection. In March 2016, the National Democratic Alliance government of Narendra Modi withdrew the 2010 Bill and introduced the Aadhaar (Targeted Delivery of Finance and Other Subsidies) as a money Bill which, according to the Constitution, could be passed by the Lok Sabha alone to become law.

Through this categorisation, the government was able to render the opposition in the Rajya Sabha redundant and pass the Bill by a simple majority in the Lok Sabha. It became Act No. 18 of 2016 within days. A plethora of public interest petitions were filed in the Supreme Court challenging the legality of the impugned Act as well as the legitimacy of the Aadhaar project. Among them is one by Jairam Ramesh, a Rajya Sabha member of the Congress.

The government, meanwhile, made Aadhaar indispensable for every citizen through a series of backdoor manoeuvres claiming the Aadhaar Act fulfilled constitutional requirements. The Act does not make it mandatory for citizens to obtain Aadhaar cards. Nevertheless, Section 139 AA of the Income-Tax Tax was enacted as an amendment to the 2017 Finance Act, making Aadhaar mandatory for fiing income-tax returns. Several notifications were issued by the government making Aadhaar mandatory for a series of welfare schemes and for accessing benefits.

Tuberculosis patients are the latest to be brought under the yoke of Aadhaar. A gazette notification dated 16 June says, “An individual eligible to receive benefit under the National Tuberculosis Control Programme is hereby, required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication.” According to the World Health Organisation, India was one of six countries which accounted for 60 per cent of the new tuberculosis cases in 2015.

From 1 July, one cannot have Divya Darshan of Lord Venkateshwara at the famous Tirupati temple without an Aadhaar number. One will not be able to get a new SIM card without an Aadhaar card. Phone numbers that are not linked to Aadhaar by 6 February 2018 could become invalid. The Deputy Superintendent of Police, Mamallapuram, Tamil Nadu, added his own bit by making Aadhaar a must to book a hotel room in the tourist town. Coercive methods are being used to enroll people for Aadhaar without adequate verification. Some States have registered more than 110 per cent of the recorded population, giving rise to concerns about fraud within the system.

According to the government’s own admission, 105.1 crore residents have enrolled for Aadhaar till the end of 2016. The government and the UIDAI are conflating acceptability of Aadhaar. On 9 June, the Supreme Court, while deciding three writ petitions of citizens, ruled that Parliament was fully competent to enact Section 139 AA of the Finance Act, 2017, which makes it mandatory to link the assessee’s Aadhaar number with his or her PAN. The petitioners had argued that this provision was unconstitutional as it infringed a number of fundamental rights.

The Income-Tax Act cannot make Aadhaar compulsory when the Aadhaar Act claims enrollment is voluntary. The court accepted the government’s argument that linking of Aadhaar and PAN would help eradicate black money and tax evasion without any empirical evidence to back its contention. A Bench of Justices AK Sikri and Ashok Bhushan said there was a need to strengthen PAN by linking it with Aadhaar and biometric information. “Parliament in its wisdom thought that one PAN to one person can be ensured by adopting Aadhaar for allotment of PAN to individuals,” the Bench said. But the Aadhaar Act itself was passed without observing constitutional norms.

Taking shelter under the Speaker’s ruling, which cannot be challenged in a court of law, the government got it passed as a money bill. Article 110 defines what constitutes a money Bill. Draft legislation is classified as a money bill when it provides for withdrawal of money from the Consolidated Fund of India and lists a set of seven features to be categorised as a money bill.

A careful reading of the Aadhaar Act makes it clear that it does not fulfill the constitutional requirements of a money Bill. The Speaker erred in classifying it as a money bill in clear violation of Article 110. Although the said Article says the decision of the Lok Sabha Speaker “thereon shall be final,” a Constitution Bench in Raja Ram Pal vs Lok Sabha Speaker held the court can review parliamentary pronouncements where the Speaker’s decision is grossly illegal or disregards basic constitutional provisions. A challenge to the Speaker certifying Section 139 AA as a money bill is pending before the Supreme Court.

That the government is determined to make Aadhaar mandatory even if it meant disregarding court orders is evident from making it mandatory for numerous schemes since the beginning of this year. Seven days after the Bench of Justices Sikri and Bhushan gave some concession to people without Aadhaar card, the finance ministry came with a notification requiring bank account holders to submit Aadhaar details by 31 December 2017, failing which the accounts will cease to be operational. This was obviously the government’s way of getting around the Supreme Court order preventing cancellation of PAN of those without Aadhaar. Apparently the order was dated 1 June but released to PTI on 16 June.

Did the finance ministry have foreknowledge of the Supreme Court’s 9 June judgment that it armed itself to nullify the concession shown on PAN? “For doing many activities of day-to-day nature, including in the course of business, PAN is to be given. Pithily put, in the absence of PAN, it will not be possible to undertake any of the aforesaid activities though this requirement is aimed at curbing tax evasion. Thus, if PAN of a person is withdrawn or is nullified, if definitely amounts to placing restrictions on the right to do business,” the judgment said.

Those who are holding out from enrolling for Aadhaar are doing so not in protest but to safeguard their privacy which they treasure. Any failure to protect privacy can have disastrous consequences that affect our abilities to determine for ourselves how we want to live. The Aadhaar Act hits at the core of this value. It permits the creation of a data base of not only biometric information but also various other private data without adequate safeguards to ensure their security. With the advent of advanced technologies which could replace humans with automation, the rich and the poor, the workers and the managers, would be defined by data.

Nobody’s information is secure in an era of big data. A recent report carried by tech news website Gizmodo revealed details of how 62 per cent of the population of the USA was exposed “accidently” by a marketing company. The details of US citizens compromised by the company include addresses, birthdates, phone numbers, Political orientation, views on gun control, stem cell research and abortion. Similarly, there were reports how several State and Union government websites, including that of Swachh Bharat Mission, leaked data of citizens who had enrolled in Aadhaar. Information leaked included their Aadhaar number, telephone number, addresses and in some cases even the LPG connection number. That a statute of such importance as the Aadhaar Act was introduced unconstitutionally as a money bill to deprive the Rajya Sabha of its legitimate legislative role is a sad reflection on our democracy.

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