Will the Aadhaar Act Stand The Test of Time?

Aadhaar Act

The Aadhaar Act was notified by the Centre as on 26 March 2016. With this, Indian citizens now have a unique identification number assigned to them with statutory backing. The basis of the Act was to empower Aadhaar with the legal legroom to help transfer subsidies and government benefits to the beneficiaries through to their bank accounts.

Will the Aadhaar Act Stand The Test of Time

The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 provides a transparent delivery of subsidies and services to millions of beneficiaries. Approved by Parliament on 16 March, it was tabled in Parliament as a Money Bill after much discussion and deliberation.  While on the other hand Former Finance Minister, P Chidambaram said that Aadhaar Bill withheld the Rajya Sabha of having any say in it and missing out on hitting at the federal structure of governance mandated by the Constitution.

The Act augmented a lot of controversies and thereby brought about a number of litigations. The extent of discussions opened up by the Aadhaar Act is endless. One such example is the Supreme court judgment in Justice K.S.Puttaswamy(Retd) … vs Union Of India And Ors in  August 2017 where Right to Privacy was included among the fundamental rights.

Taking Shape: Right to Privacy

In order to understand how the Right to Privacy came about, we should dwell a little on our past. It was in 1954, that an eight-judge bench of the Supreme Court, during the MP Sharma case held that there was no need to import the Right to Privacy in the Indian Constitution. After 10 years, in the Kharak Singh case, a six-judge bench reiterated that the invasion of privacy does not violate the fundamental rights.

In the Naz Foundation case, it was held that Section 377 of the IPC discriminated against a particular section of society based on sexual orientation. But, the provision has not been stricken down but the judiciary nor the Parliament does not have a role in its enforcement.

In this case, while discussing privacy, the apex court laid down three categories based on personal liberties. This includes the three trip test, where:

(i) It must prescribe a procedure;

(ii) The procedure must withstand a test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation, 

(iii) It must also be liable to be tested with reference to Article 14.

In the more recent Justice K.S. Puttaswamy case or the Aadhaar case, the Supreme Court passed a historic judgment that reaffirms the constitutional right to privacy. It was declared that privacy would be an integral component under Part III in the Constitution of India. It lays down the fundamental rights which range from equality rights (Articles 14 to 18), freedom of speech and expression (Article 19(1)(a)), freedom of movement (Article 19(1)(d)) and protection of life and personal liberty (Article 21) among other rights.

Aadhaar Cannot Be Insisted On Services Except Subsidies

Justice K.S.Puttaswamy(Retd) vs Union Of India & Ors judgment suggests that no person should suffer if they have not enrolled for an Aadhaar Card and not get their entitlements unless they are illegal immigrants. This paved the way for the Aadhaar Act not to insist on the Aadhaar except for subsidies.  

The deadline for linking Aadhaar to bank accounts and mobile phones by March 31, 2018, has been extended indefinitely by the Supreme Court except for disbursing subsidies. The Centre and States cannot insist on Aadhaar for any service which includes the issuance of passports. This extension will continue until a final judgment is made.

This judgment has been ordered under the five-judge constitution bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan that hear the petitions that challenge the validity of Aadhaar. This interim order was created on December 15, 2017, that links the services to possession of the unique identity number.

Aadhaar linkage is exempted from all services except subsidies. These services include bank accounts, mobile phones, passport insurance and employee pension. As per the judgment, the change in the deadline for Aadhaar linkage “shall apply, besides the schemes of the ministries/departments of the Union government, to all state governments in similar terms”.

Senior Advocate Arvind Datar citing as explained to the CJI-headed bench that based on the interim order, the government should not have revoked Vrinda Grover, a lawyer-activist’s Tatkal Passport application. Based on the Supreme Court’s interim order, this is a violation of this interim order of insisting on Aadhaar before March 31, 2018.

Disbursing of Subsidy

The Justice K.S.Puttaswamy(Retd) vs Union Of India & Ors judgment as explained earlier suggests that the Aadhaar Act should not come in the way of subsidies and benefits. Section 7 of the Aadhaar Act, 2016 should not be diluted as it mandatory for people to continue receiving their subsidies. This section provides that “for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt there-from forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment: provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service”.

Decriminalising Homosexuality

Another subject in contention is Section 377 of the IPC which dates back to 1861 which ‘criminalizes sexual activities against the order of nature, including homosexual activities.’ The bench was headed by CJI Dipak Misra with a panel comprising of Justice AK Sikri, Justice AM Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan looked into the matter concerning the decriminalization of homosexuality.

The Supreme Court hears the case on the legalization of homosexuality. Here, the top court could strike down a 158-year-old colonial era that criminalizes gay sex in India. A panel headed by Chief Justice of India Dipak Misra heard arguments against Section 377 of the Indian penal code. This case brings in a wide-ranging impact on how gay, lesbian, transgender and bisexual citizens are treated. Here, the impact would be on how society looks at these people based on perception and jobs. As stated earlier, the Naz Foundation, a non-government organization working on sexual health and HIV has questioned Section 377 in the court of law. At the same time Subramanian Swamy, the veteran politician stated, “It is not a normal thing” and further added, “We cannot celebrate it. It’s against Hindutva. We should invest in medical research to see if it can be cured.”

PAN and e-KYC

The court has extended the deadline to make it mandatory to link Aadhaar with several services and welfare schemes till 31 March 2018. This however is not the case for PAN as it should be used to file returns. The judgment in Binoy Viswam vs Union of India will continue to prevail as far as the requirement of Aadhaar for PAN under the Income Tax Act is concerned. This court upheld the validity of Section 139AA of the IT Act which makes it mandatory to link IT returns with Aadhaar. The bench also overruled the Triple Talaq judgment over the decision of Binoy Vishwam’s case citing the judgment of Justice RF Nariman.

As per the growing number of financial institutions, one of the consistent methods for banks to collect information is through e-KYC. This fulfills the ‘Know Your Customer’ or e-KYC formalities that make Aadhaar compulsory. It also provides the process of making Aadhaar the main process for underlining all financial transactions.

Right to Privacy

The Supreme Court pronounced a 9:0 judgment that declared that Right to Privacy as a Fundamental Right. This judgment was celebrated with much gusto by pro-privacy advocates. With this judgment by the Constitutional Bench, it could pose as a wedge to the enactment of the Aadhaar Act in the future. It is a fundamental right under Article 21 without bearing the Aadhaar Act.

But Soli Sorabjee, former Attorney General of India explained that you cannot make this blanket a categorical statement that bans Aadhaar or deems it unconstitutional. He explains that no fundamental right is absolute and it is subject to reasonable restrictions. Thus the Right to Privacy could save the Aadhaar as a reasonable restriction. It was also suggested that though cracks could slip in through arbitrary restriction like National Security and this is a larger question that privacy at this moment.

On the topic of privacy, Finance Minister Arun Jaitley explained, “The legislation has been passed and I’m sure it will stand the test of constitutionality. Even while upholding the idea of privacy as an important constitutional guarantee, the Supreme Court said that it is the question raised just now. (Violation of privacy) could be imposed by law but they have to be obviously reasonable.”

This creates a growing need for strict privacy laws that move towards digital financial transactions and growing e-commerce. If these privacy laws were enacted, India would be among the advanced economies which include the US, UK, Australia, France & New Zealand.

JAM Trinity

There has been a lot of chatter over the significance of the JAM trinity which will help empower rural India and bring them into the mainstream financial inclusion. “The JAM Trinity — Jan Dhan Yojana, Aadhaar and mobile numbers — may well be a fish bait to trap unsuspecting citizens into the world’s biggest transnational biometric database to turn them into subjects under surveillance forever in the name of a set of welfare and anti-poverty policies,” suggests Gopal Krishna, a member of the Citizens Forum for Civil Liberties. Having said this, there have been 30 crore Jan Dhan Yojana accounts that have created and this will help the public distribution system produce basic necessities like wheat, kerosene & rice. The next scheme is to connect Post Offices to reach out to close to 90% of rural India. This can be done if aadhaar linked benefit-transfer architecture is applied to IFSC codes that seed Aadhaar linked accounts.

DNA Profiling Bill

Though the DNA Profiling Bill was prepared in 2007, it had undergone several changes before it was finally labeled, “Use and Regulation of DNA Based Technology Bill, 2017.”

Though this is the biggest concern, it has left the task of defining privacy and security safeguards. This requires the implementation and sufficiency of protection for appropriate use and dissemination of DNA information. These are based on information, security, accuracy and of course, the confidentiality of DNA information with the ease of removal of inaccurate DNA information. This is made possible through the Aadhaar based authentication and it helps in providing this sensitive information through secured information sharing for Aadhaar related purposes.

On the utilization of Aadhaar based services, PRS Legislative Research expressed, “It allows private persons to use Aadhaar as a proof of identity for any purpose. This provision will enable private entities such as, airline, telecom, insurance, real estate, etc. companies, to require Aadhaar as a proof of identity for availing their services.” This is undoubtedly one of the best tools for human surveillance and this is considered as one of apex tools for good governance to function

Here’s the rundown of why the Aadhaar Act is imperative:

  • Aadhaar lead the breakthrough of the Right to Privacy
  • All major services are exempt from Aadhaar linkage except subsidies
  • The Aadhaar Act has a hand in decriminalizing homosexuality
  • PAN and e-KYC should be mandatorily linked to Aadhaar
  • JAM Trinity tries to reach out to 90% of rural India through benefit schemes
  • Aadhaar Act paved the way for the DNA Profiling Bill which helps in Aadhaar authentication.

Conflicts between the Aadhaar Act and the Right to Privacy Bill, 2011

The Supreme Court ruled that citizen’s biometric details under the Aadhaar scheme were collected without any prescribed law. This should be brought subsequently under a statute.

Further to this, the bench came out with the law in 2016 to prove that it was not collecting data since 2009 without authorization. It was based on the due consideration that the data is collected despite it being compromised.

Speaking on the subject, the bench, comprising of Justices A K Sikri, A M Khanwilkar, D Y Chandrachud & Ashok Bhushan, suggested, “Our (Privacy) judgment said that there has to be a law. They enacted a law to take away the basis of the argument. The absence of law can be cured, but there may be other issues like whether the data collected (earlier) had the same statutory safeguards. What will happen in case of a breach.”

Under the five-judge constitution, the bench headed by CJI Dipak Misra asked what would be the position of the court in regard to a breach that took place in 2009 and 2016. This was at two important junctions when Aadhaar was launched and when the law came into force.

This is where the Aadhaar Act (2016) becomes questionable when it infringes on ‘our fundamental rights of citizens and the invasion of privacy,’ as regarded by Senior Advocate Gopal Subramanium. He added that it ‘unlawfully collected information and this cannot be cured.’

The Justice B.N. Srikrishna Committee suggested that the Right to Privacy judgment should be constituted as a first-of-its-kind data protected framework and this law should not be retrospectively enforced.

This ensures that the data collected under Aadhaar would be out of the scope of this proposed law. This recommendation does not find favor with those that have opposed the unique identification system. This is based on the grounds of collection and dissemination of Aadhaar data which could make citizens vulnerable to data theft. This means that the draft report needs adequate time and that this allows for new legislation and regulatory framework.

Here the acts list the crimes included for obtaining transfer, disclosure, and sale of sensitive and personal data. This is also based on re-identification and de-identified personal data. Though this move may anger activists, there are strong privacy and data protection laws that the Committee’s draft report exonerates if the crime is committed without the knowledge of the concerned representative and measures are taken to prevent such a crime from taking place.

When the discussion on making Aadhaar mandatory for the poor descended, he remarked that it was a “moral judgment on the poorest of the poor in saying they make ghost cards.” This is the crux of the issue when beneficiaries are left high and dry and when even when they have their Aadhaar in place, they still cannot avail their subsidies due to blatant errors in the system. In this manner, there are methods to track corruption and pilferages but every person needs to be treated with a sense of dignity. This is where the Aadhaar Act surfaces and only time will tell before it gets axed or certain amendments would produce a good amount of breathing room for Aadhaar cardholders. However, there is scope for retrospective action and the Aadhaar sensitive information would be outside the scope of the Right to Privacy Bill.

The Aadhaar Act is here to stay as these provisions would come under reasonable restrictions. Also, the Act would pave the way for better methods of providing services and benefits to the masses.

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