Friday, April 23, 2021

Aadhaar verdict

Though with clear dissenting voices within the five-judge bench, the Supreme Court has virtually upheld the constitutional legality of both the unique identification project and the Aadhaar Act 2016, which was passed as a money bill. Though the final verdict, awaited for a long time, has drawn a list of what can and cannot be linked with Aadhar, the judgement is marked by several ambiguities and flaws. For one, it did not go into the very vital question of whether the bill could be passed as a Money Bill in the first place. The passage of the Bill as a Money Bill by-passed the constitutional authority of the Rajya Sabha, whose list of recommendations were outrightly rejected by the Lok Sabha, depriving the Rajya Sabha of its legitimate constitutional role. Constitutional propriety demands that dissent within the parliament cannot be over-ridden with the flag of majority opinion, it has to be accommodated through principle of dialogue. The BJP government which was in a tearing hurry to pass the bill ensured that all forms of discussion should be stone-walled. Justice Chandrachud has gone to the extent of calling the Aadhaar Act as a “violation of Article 110 and therefore liable to be declared unconstitutional”. On legal grounds, the Aadhar Act does not qualify as a money bill solely on grounds that the unique identification number is to be used for the purpose of services, benefits and subsidies. While expenditure for this is incurred from the Consolidated Fund of India, it does not deal with declaration of any expenditure as is the legal provision laid down for the money bill. The entire Aadhar scheme suffers from constitutional infirmities and violations of fundamental rights, right from its inception a decade ago. It subsumes the identity of an individual and reduces it to a 12 digit number, snatching from an individual the right to choose his or her identity and robbing him of his privacy through the world’s biggest and most centralized data-base system. The Act suffers from the serious lacunae of absolute silence on the prospect of theft and misuse of the data, which does not only infringe on the privacy of an individual but can also be used against his interests. Despite serious apprehensions raised and reports of cases of blatant misuse of the data and discrepancies, the Act does not place any institutional accountability upon UIDAI to protect the database of citizens’ personal information. The Act is completely silent on the liability of UIDAI and its personnel in case of non-compliance of the provisions of the Act or the regulations made under it and thus violates the right to seek remedy. There is neither any accountability mechanism, nor any grievance redressal mechanism if any breach or offence is committed by UIDAI itself. This is a grave flaw that the verdict completely over-looked. While the verdict has delinked use of Aadhar from schools, bank accounts and telecommunication services, it has made it mandatory for income tax assesses to quote their Aadhaar number in their income tax return and link it to their PAN cards and for social welfare schemes with the argument that the plea of exclusion was not sufficient to use Aadhar as a basis for the conduct of such schemes. With the linking of income tax assesses with Aadhar, punitive provisions have been introduced which is unjustified and will be used to hound individuals. Though bank accounts, mobile phones and schools will now be de-linked from Aadhar, who will ensure the destruction of the data already collected by them and whether or not it is already in circulation. The biggest flaw in the judgement is that over a hundred social welfare schemes that have mandated Aadhaar through notifications issued using the power of Section 7 of Aadhaar Act will still require usage of the biometric authentication programme, which obviously means that those who have no Aadhar cards or are unable to get them will continue to be deprived of the benefits that are essential for their existence.