by sflc_admin    |    March 19, 2016

The Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016 (hereinafter Aadhaar Bill) was discussed, voted and passed in the Lok Sabha on 11th March, 2016. The many contentions raised,clarified and debated upon by the Government and the Opposition were heard, but not considered. The bill was passed in its original form through voice vote to the Rajya Sabha by the evening. On 16th March, 2016, the Rajya Sabha, which effectively had no say in the matter, but ample recommendations to add, discussed this bill for almost five hours. Some amendments were passed through the process of division and were added to the recommendations sent to the Lok Sabha. The very same evening, the Lok Sabha rejected the recommendations and passed the Aadhaar Bill in the form it was introduced on 3rd March, 2016. As per Article 111 of the Constitution, with respect to a money bill, the President cannot return the bill with recommendations to the Lok Sabha. He is mandated, without discretion to give his assent to a money bill. In short, Aadhaar bill, 2016 will in a matter of days be a law governing the ‘residents’ of India.

Following is a report of the parliamentary proceedings that took place in the two houses in this week on the Aadhaar Bill, 2016

LOK SABHA

The Finance Minister, Arun Jaitley was clear of his point of view, he amicably addressed all the questions raised by the opposition and while answering, stated his position back to them. Everyone was patiently given their talking time, the vote was awaited, which in all fairness is the flaming baton of democracy, and the winner is always the majority. During the discussion, majority of the opposition in the shameful quorum of 73 out of 545 Lok Sabha members, believed that the Aadhaar Bill was wrongly introduced as a Money Bill. Article 110 of the Constitution lays down the criteria for bills to be introduced as money bills. For the sake of explanation, clause (1) of the Article says that a bill would be deemed a money bill ‘only’ if its provisions deal with the criteria specified in sub clauses (a) to (g). The Government has tried using to their defence, Article 110(c) that relates to the payment of moneys into or the withdrawal of moneys from Consolidated Fund of India, along with sub clause (g) that includes ‘any matter incidental to any of the matters specified in sub clause (a) to (f)’. There has been a plethora of discussion outside the Parliament on the status of the Bill, wherein many have interpreted Aadhaar as a legislation for identification that entitles residents to a unique identification number. In tandem, the Bill creates a regulatory body, lays down clauses for the administration of the unique identification number from the information that needs to be collected, to how it can be shared, and penalties for misuse and other offences. During the Lok Sabha discussion, Rajeev Satav from the Indian National Congress questioned the legitimacy of a Bill that in Section 57 permits the use of Aadhaar to private entities for the purposes of establishing identity, but claimed to be linked only to expenditure from Consolidated Fund of India. In his response, justifying the money bill, Arun Jaitley, described Aadhaar as an ‘enforcement mechanism’ and only ‘incidental’ to the entire process of expenditure incurred from Consolidated Fund of India. He argued that the expenditure for subsidies and other government welfare schemes formed the core of the Bill proposed; thereby, making it a money bill.

One of the most persuasive and coherent voices during the Lok Sabha discussion was that of Tatagatha Satpathy, from the Biju Janata Dal. With clarity, he addressed the contentious issues by highlighting the consequences of lack of privacy protection, the incorrect use of Article 110, and the loopholes in outsourcing the collection of data to private contractors. He argued that collection of such data, along with its linking to everyday activities like banking, and health makes it a medium to construct or de-construct a citizen. He further linked this with the menace of mass surveillance and issues of profiling with the example of NSA revelations in the United States by Edward Snowden. In a candid statement, Satpathy said that leaving room for other biological attributes to be added to the list of biometrics (as per Section 2(g)), could mean the future collection of DNA of the population, and a possibility for ethnic and racial cleansing. In addition, he cited a report of 20,000 fake Aadhaar cards being issued in a state and linked that with the manipulation that can happen in the entire database if the outside contractors, responsible for collection of personal information are influenced. Satpathy argued that the exception for disclosure of sensitive biometric information in interest of ‘national security’ was a vague and open ended provision. He ended with a strong statement to the Speaker filling in, “Sir, you know it, and I know it, this is not a Money Bill, Full Stop.”

Another vociferous speaker in the discussion was Asaduddin Owaisi from AIMIM, who highlighted the flaws in the Aadhaar Bill with respect to the Privacy principles recommended in the Justice A.P. Shah Committee Report of 2012; for example, the lack of notification to an individual if there is a breach of his personal data. He raised pertinent issues of the absence of a right to be heard by the data subject when as per Section 33(1), the District Judge decides upon the disclosure of personal information of the individual concerned. He added that the cherry on the cake is the prohibition on a court to take cognizance of an individual’s complaint as per Section 47, thereby limiting an individual’s recourse mechanism against the UIDAI. He also examined and expressed anguish with Section 7 of the Bill that gives an option to Central & State governments to make Aadhaar mandatory for availing subsidies, thereby moving away from the concept of Aadhaar being a mere entitlement as stated in Section 3(1). He also referred to the technical incapability of the biometric machinery to register accurate fingerprints of workers involved in mining and beedi manufacturing. (Side note: It was noted even in the Standing Committee formed in 2011-12 on the previous bill that it is difficult to get proper fingerprints of people who spend considerable time doing hard manual labour) Both, Asaduddin Owaisi and Tatagatha Satpathy raised a nuanced point about categorizing the subsidies that could be availed (and subsequently mandated) with Aadhaar; if these would be limited to the schemes eligible for Below Poverty Line (BPL) families, or even general government welfare schemes could be enveloped under this definition.

With the aims to answer the doubts raised, the Finance Minister gave a speech right before the voting on the Bill. He compared the present bill with the earlier National Identification Authority of India Bill, 2010 that was introduced by the UPA Government and reflected that the UPA bill had formulated the authority and the idea of biometric database, but the 2016 Bill improves upon it and instills in it the purpose of targeted delivery of benefits and subsidies. He said he would refrain from commenting on the issues of privacy, because the matter was still pending in the Supreme Court and it was upon the Hon’ble Court to decide on the constitutionality of this right. He added that Chapter VI of the Bill that details the clauses on security and protection of data are sufficient safeguards for an individual’s personal information. On the point of loosely drafted exception in Section 33(2) that allows for disclosure of an individual’s core biometric and other information in the interest of ‘national security’, Mr. Jaitely remarked that no legislation in the country defines this term. Its definition is contingent on the situation and if need be, it is upon the courts to decide its applicable scope.

During the proceedings, a considerable amount of members present in the Lok Sabha asked that the Bill be sent for further scrutiny to a Standing Committee. Nevertheless, the suggestion was not considered. At the closing of the discussion, the Aadhaar Bill was passed in its original form as a money bill through a voice vote in the Lok Sabha.

RAJYA SABHA

The discussion in the Rajya Sabha over this Bill on 16th March, 2016 was heated and insightful. It was mentioned by many members that a challenge to the constitutional validity of Aadhaar was pending in the Supreme Court and hence sub judice. The Finance Minister at the very outset clarified that the doctrine of sub judice applies only to matters of ‘individual culpability’, and not to parliament’s power to legislate. If such power of the legislature could be suspended, it would be against the principle of separation of powers enshrined in the Indian Constitution. On the point of privacy, Arun Jaitley remarked that ‘probably, privacy is a Fundamental Right; it is too late in the day to say it is not.’ With this, he further exclaimed that this right is not absolute and can be restricted based on fair, just, and reasonable procedure established by law. In his opinion, the Aadhaar Bill established such procedure and therefore, any restrictions on an individual’s privacy are lawful. Moving on his speech, he defended the status of the money bill by stating that the test to be applied is to analyze if the pith and substance of the proposed legislation is expenditure from the Consolidated Fund of India; merely because an authority is created for administrative purposes, does not obviate the status of a money bill.

Arun Jaitely was vociferously countered by Jairam Ramesh from the Indian National Congress who produced a host of studies and statistics to corroborate his claims and rebut those of the Government. He produced a letter from a former Attorney General who confirmed Jairam’s point that in ‘pith and substance’, the Aadhaar Bill was not a money bill. He asserted that his fundamental departure from the present bill is based on the fact that Aadhaar not be made mandatory, but remain voluntary. Moreover, calling it a ‘Subsidy Sudhaar Program’, Jairam contends that Aadhaar will not decide entitlement for the subsidy, but will merely be a proof of identity. Similar to the concern raised by Tatagatha Satpathy, he also is worried that the power given under delegated legislation to include other biological attributes in Section 2(g) at a later stage might cause greater problems. While making reference to a report that held that 40% Jan Dhan accounts were facing problems when being authenticated/used with Aadhaar, Jairam Ramesh tried to point to the flaws of depending on an untested technology at a large scale. He ends his speech by urging the Finance Minister to send the Bill to a Standing Committee to produce an improved version for the law on Aadhaar.

The Rajya Sabha experienced a much diverse discourse on this bill as compared to the Lok Sabha. Nadimul Haque of AITC reminded the house of the report from the Standing Committee of Finance that analysed the earlier Bill had held that a national data protection regime is a per-requisite for Aadhaar’s operation. Satish Mishra from BSP reiterated the absence of a right to be heard in Section 33(1) and the lack of appellate mechanism in that regard. Rajeev Chandrashekhar, an independent Member raised significant concerns of the extension of this scheme to residents and not just citizens of the country. He asserted that ‘Aadhaar cannot distinguish between citizens and residents, non-citizens will be able to avail subsidies as a part of this scheme.’ In addition, he feared that this method could be misused by miscreants and non-citizens for the purposes of identity laundering, and therefore adamantly opposed the use of Aadhaar for establishing identity as has been permitted in Section 57 of the Bill. Chandrashekhar insisted on judicial oversight while deciding the disclosure of personal information for purposes of national security as in Section 33(2).

In closing, while clarifying and responding to the questions raised, Arun Jaitley maintained that the exception for disclosure for reasons of national security corresponded to the reasonable restrictions for ‘security of state’ to Freedom of Speech and in the Official Secrets Act. It was recommended by Jairam Ramesh that the phrases ‘public emergency’, and ‘public safety’ be transposed from the provision for interception of electronic communication in the Telegraph Act. The Finance Minister replied that these expressions would import a wider meaning and larger room for interpretation as compared to the phrase ‘national security’. On the mandatory nature of Aadhaar, he clarified that if one wants to avail a benefit or subsidy, enrolling in Aadhaar is mandatory. He drew parallels between the Social Security Number in the United States and the Aadhaar to maintain that both apply to residents, but do not imply citizenship of the country. While responding on the question of a right to be heard in Section 33(1), Jaitley remarked that in statutory interpretation, when the law is silent, it is general practice to read the right to be heard into the provision. Though, Sitaram Yechury from CPI (M) expressed dissatisfaction with the Finance Minister’s explanations, the moving and voting on amendments proceeded.

During the voting, most of the clauses passed without any changes, but Jairam Ramesh insisted for the process of division of votes (and not just a voice vote) for four of his amendments. All these amendments were passed in the division with very close calls. The first amendment amongst these was on Section 3 of the Bill and demanded that residents not be included for the purposes of Aadhaar. This amendment was passed with 76-64 votes. The amendment to Section 7 that permits Aadhaar to be made mandatory for securing benefits and subsidies of Government related schemes also passed the division process with the same margin of 76-64 votes. The third amendment pressed by Jairam Ramesh was the replacement of the phrase ‘national security’ to ‘public emergency or public safety’ in Section 33(2) and have an independent member like CVC or CAG in the Oversight Committee that reviews such directions for disclosure. This amendment passed with 77 Ayes and 64 Noes. The last amendment by him on the grounds of limiting the use of Aadhaar to only government schemes and not for other purposes as stated in Section 57 also passed with majority in the house by 76-65 votes. Subsequently, with the recommendations, the Aadhaar Bill was returned to the Lok Sabha for its perusal.

The Lok Sabha did not consider the recommendations on the Aadhaar Bill as given by th Rajya Sabha and passed it in its original form as had been released on 3rd March, 2016. In the present scenario where the Aadhaar Bill was passed as a money bill, the President does not have the power to return it with recommendations, but is mandated to give assent to it.

Disclaimer: This report is a first hand account of observing the proceedings of both houses and hence, may not be substantiated by secondary references.

Aadhaar   Aadhaar Bill   Aadhar   Parliament