Cloaking 'Aadhaar' with the sanctity of a law on disputable grounds

venkatesh-nayak

Venkatesh Nayak | March 4, 2016


#judiciary   #law   #supreme court   #subsidy   #privacy   #parliament   #aadhaar   #UIDAI   #human rights  


The government of India has tabled the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 in the Lok Sabha. The proposed legislation seeks to give a legal basis for issuing Aadhaar = Unique Identity Number for every person residing in India for at least half the number of days of a 12 month period immediately preceding the date on which he/she seeks enrollment under Aadhaar. The Unique Identification Authority of India (UIDAI) will be the key institution responsible for implementing this law across the country (except in J&K). Demographic data such as name, date of birth, address and other details along with biometric information such as photo, fingerprints and iris scan will be collected, databased and preserved by the UIDAI for authentication purposes in future. This exercise begun under an executive resolution of the Central Government has databased more than 900 million people already.

Interestingly, Clause 9 of the Bill makes it clear that Aadhaar will not be proof of citizenship or domicile (permanent residential status) for any person enrolled under this law. It will also not cover people residing in Jammu & Kashmir.

Problem areas in the Aadhaar Bill

The Aadhaar Bill is flawed, fundamentally, in several ways.

1) Lack of uniformity of purpose of Aadhaar: The Aadhaar Bill does not contain a Preamble. Instead, the long title of the Bill (which is often mistaken to be the Preamble by many a reader) states that it is a law intended to provide for as a "good governance" measure, an efficient, transparent and targeted delivery of subsidies, benefits and services the expenditure of which is incurred from the Consolidated Fund of India by assigning Unique Identity or Aadhaar Numbers to individuals who get enrolled. That the Finance Minister talked about an "Aadhaar Card" while tabling the Bill is a different matter. UIDAI officials stoutly deny that there is any such thing as an "Aadhaar Card". You may click on this link for my Open Letter to UIDAI on this controversy. They are yet to respond to my letter sent in November 2013.

This seemingly innocent and noble 'good governance’ measure is contradicted by Clause 57 placed at the very end of the Bill:

"57. Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect:
Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI."

So the real purpose of Aadhaar is much clearer: it is a measure that will form the very basis of the gargantuan surveillance mechanism that the State is putting in place to database each and every individual not just for purposes of giving subsidies, benefits or services, but also for purely private transactions conducted by any other person or body corporate, not just under any law but also any contract that may be in place for any purpose.

Another question that the Bill does not seek to answer is why Aadhaar is necessary for providing 'any kind of service' even where such services are provided by the private or social sector. This makes Aadhaar much more than a mere 'good governance’ measure that ‘empowers’ not only the State but also non-State actors who are service providers in the name of 'efficiency'.

2) No penalty for non-State service providers: These non-State service providers are only subject to the procedures for seeking authentication of Aadhaar information from UIDAI and protecting the information from unauthorised disclosure. They will not be liable for any penalty under the law (ranging from a fine to imprisonment for three years) if they commit any of the offences listed in Chapter VII, as may be applicable to them, such as the unauthorised use of identity information or non-compliance with intimation requirements.

3) Expansion of the scope of 'biometric data' that can be collected by UIDAI: Clause 2(g) defines 'biometric information' to mean photograph, fingerprint and iris scan. However when read with Clause 23(2)(a), the UIDAI will be empowered to prescribe the collection of any other biometric information through the regulations at a later date. So this Bill leaves the window open for the UIDAI and eventually the Government to collect even DNA data about individuals in the name of Aadhaar. The decision to collect such 'other biometric information' will be ratified by Parliament post facto only (see Clause 55). Whether or not the MPs debate the immense potential for the misuse of this provision remains to be seen. The Government has already been working on a Human DNA Profiling Bill in the name of developing a DNA database of 'criminals', suspects of crime and missing persons apart from, believe it or not, "volunteers". The Aadhaar Bill creates a legal basis for the UIDAI to collect DNA data of all individuals living across the country (except J&K) in this regard.

4) Requiring people to undergo authentication procedure for availing 'any service' for which money will be spent from the Consolidated Fund of India: Clause 7 authorises the Central or the State Governments to make it a conditionality for any person to undergo Aadhaar authentication for availing any 'service' for which cost will be incurred from the Consolidated Fund of India. Theoretically, an ailing person may be compelled to undergo Aadhaar authentication just to get enrolled at Safdarjung Hospital or at the AIIMS in Delhi before getting treatment. Or any person who wants to get a complaint filed by the Delhi Police might ascertain Aadhaar authentication of his/her identity before the FIR is actually lodged. In all three cases, Safdarjung, AIIMS and Delhi Police, the services rendered by them are paid for through Consolidated Fund of India. Furthermore, in order to get a child's birth, a marriage or even a death of a person registered by the authorities in the union territories like Delhi Aadhaar may become (or has already become) compulsory thanks to the Aadhaar Bill - all these agencies are paid for through the Consolidated Fund of India.

The proviso to Clause 7 does talk about offering an alternate means of identification if he/she does not have Aadhaar number. However such alternatives must also be "viable" in the opinion of the concerned Government. Unless clear guidelines are issued on what is to be deemed 'viable' in every context, there is every likelihood of a large number of people being denied essential services. Stories of genuine ration card holders being denied access to subsidised food grains at fair price shops because the biometric reader does not provide a positive and true match have started trickling in. So will poor technology and implementation trump the promise of efficiency? It remains to be seen.

5) Statutory protections for 'identity information' can be waived on grounds of "national security": Clause 33 of the Aadhaar Bill empowers disclosure of 'identity information' of an enrolled individual on grounds of "national security" if it is so directed by an officer of the rank of Joint Secretary or above. Consent of the individual concerned is not required in such cases. This decision will be valid for three months and subject to a review by a three-member Oversight Committee headed by the Cabinet Secretary and the Secretaries of the Depts. of Legal Affairs and Electronics and Information Technology serving as members. The Committee may extend the validity period of the decision by another three months. What the Aadhaar Bill does not provide for is an illustration of the kind of contexts in which this provision may be invoked, in other words - what would or would not fall under the rubric- "national security".

Another aspect about which the Aadhaar Bill is silent is what remedies are available to an individual against whom a direction is issued and it is later found to be patently illegal by the Oversight Committee. How will the 'disclosure' be unmade? This is another indication, that the law is less about what the long title of the Bill claims, namely, 'efficiency', 'transparency' etc. but more about the State wanting to exercise overbearing power on the people.

6) The labelling of the Aadhaar Bill as a "Money Bill": The Finance Minister explained that the Aadhaar Bill was being introduced in the Lok Sabha as a "Money Bill". The Opposition criticised the labelling of the Bill in this manner. The Minister reportedly explained that the "pith and substance" of the Bill is that whoever gets the benefit of any form of Government subsidies 'Aadhaar Card' production may be necessary. "It is on expenditure of the Government exclusively" he is reported to have said. The Opposition criticised this move pointing out that the Government wanted to bulldoze the Aadhaar Bill through the Rajya Sabha which has no power to amend or reject "Money Bills". The Speaker of the House will now have to rule on this issue and her ruling will be final. Under Article 110(4), she will be required to issue such a certificate while transmitting the Aadhaar Bill to the Rajya Sabha after Lok Sabha approves it.

In my humble opinion, the Opposition seems to be correct. The criteria for a "Money Bill" in relation to Parliament are given in Article 110 of the Constitution as follows:

"110. (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of India;
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
(g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).

(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.

3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final."


Clearly, from a close examination of the contents of the Aadhaar Bill, it becomes quite clear that it does not qualify as a Money Bill. Foremost, a Bill must be exclusively about one or more of the clauses (a) to (e) specified in Article 110. The Aadhaar Bill does not impose or abolish any tax. It is not about the custody of the Consolidated Fund of India or payments into it or withdrawals from it as is the case with Finance Bills and Appropriation Bills (collectively known as 'the budget'). Nor is it about declaring any expenditure that it is charged on the Consolidated Fund. By a laboured argument it may be covered by sub-Article (g). However, the Aadhaar Bill has several provisions that have nothing to do with Article 110, namely, the procedures for collecting and authenticating identity information about individuals, giving statutory cover to UIDAI and prescribing penalties for the violation of the law. So the Aadhaar Bill does not meet the criteria laid down in Article 110. However, all eyes will be now be on the Speaker. Whether she will do a repeat performance like the decision not to recognise Mr. Mallikarjun Kharge as the Leader of the Opposition in the Lok Sabha completely ignoring earlier Parliamentary debates on the issue or take a legally defensible decision, remains to be seen.

Should citizens be databased?
Aside from all these technicalities is the larger issue that cloaks Aadhaar. Is databasing of people as if they are unidentified species of plants, insects or animals, a violation of human rights? Interestingly, the Aadhaar Bill does not mention the term 'privacy' even once. It is mentioned only once in para 5(f) of the Statement of Objects and Reasons attached to the Bill. Of course, this Bill is quite different from the National Identification Authority of India Bill introduced by the previous UPA Government in 2010 which lapsed with the dissolution of the Lok Sabha. But that is no saving grace.

To hold that the State will assign 'numbers' to its people in order to "identify" them lawfully, for whatever purpose, sounds eerily like the numbers assigned to inmates of prisons - clearly a violation of the self-determinational autonomy of the individual. No doubt, the Aadhaar Bill nowhere states that it is compulsory and provides some protections against misuse of the personal information of those enrolled under Aadhaar. However Clause 57, discussed above, does open up the possibility of Aadhaar becoming mandatory for everything from birth to death.

In 1983, the German Constitutional Court had this to say when a similar effort was made by the Federal Government to database its citizens through a Census law:

"It has been acknowledged up to now that compulsory collection of personal data without restriction is not permissible, in particular if such data are to be used for the purposes of administrative enforcement (for example, in connection with taxation or allocation of social benefits)... Compulsory disclosure of personal data presupposes that the legislature has specifically and precisely defined the intended area of use and that the information is suitable and required for that purpose. The collection of non-anonymised data to be stored for purposes that are not or have not yet been specified would not be compatible with this. All government entities that collect personal data to fulfil their duties will have to restrict themselves to the minimum required to achieve the specified purpose." [Census Act Judgement of 1983- Decisions of the Federal Constitutional Court (Entschiedungen des Bundesverfassungsgerichts - BVerfGE) 65, 1]

Clearly, the Aadhaar Bill does not meet these strict standards which have become the basis for data protection laws across the European Union and elsewhere.

Aadhaar Bill in the age of confusion about the fundamental right to privacy
One aspect of the context in which the Aadhaar Bill has been introduced is very important to take note of. In relation to a Public Interest Litigation (PIL) suit filed by a retired High Court judge from Karnataka opposing the making of the erstwhile Aadhaar enrolment compulsory for availing services like subsidised LPG cylinders etc., the Hon'ble Attorney General of India succeeded in sowing doubts in the mind of the Hon'ble Justices of the Supreme Court as to whether citizens of India have a fundamental right to privacy through a convoluted reading of some earlier judgements on the issue. Please see my comments on this controversy from last year. This matter has been referred to a larger Constitutional Bench which in October 2015 called upon the Chief Justice of India to constitute another Bench to dispose of the matter urgently.

While the constitution of this new Bench is awaited, the Apex Court has now recognised the right of privacy of patrons of the controversial "dance bars" in Maharashtra not to be filmed on CCTV cameras while the artistes perform in front of them. The Apex Court modified its earlier order on granting licences for running such 'dance bars' stating as follows (see 2nd attachment):

"Having heard learned counsel for the parties, Dr. Rajeev Dhawan, learned senior counsel, who sought permission to file an application for intervention and Mr. Sandeep Deshmukh, learned counsel for the 5th respondent, we are inclined to modify the said condition to the extent that CCTV cameras shall be fixed at the entrance of the premises in question but shall not be fixed in the restaurant or the permit area or the performance area."

It is puzzling to be told that patrons of dance bars can have the right to privacy while 1.2 billion other citizens of India have to wait for a Constitution Bench to rule on whether the have a fundamental right to privacy to trump the ever expanding reach of the State into the personal lives of citizens.

In the days to come the Aadhaar Bill will be debate. The Government is likely to push for its passage in the Lok Sabha and then influence the Hon'ble Speaker to certify it as a Money Bill. Once so labelled, such a certificate attains finality and cannot be challenged before the Courts. It is important for all citizens to talk to their MPs and demand that they raise hard questions about the Bill and how it empowers the State. John Locke once wrote:

"The end of law is not to abolish or restrain, but to preserve and enlarge freedom."

What the Aadhaar law will do with regard to people's freedoms needs urgent debate.

 

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