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THE CHALLENGE TO AADHAAR ACT AND ITS PASSAGE AS A MONEY BILL

INTRODUCTION-

This blog takes us on the journey of Aadhaar, a flagship programme of the Government of India. Starting from the day of its introduction in the public domain, in the year 2010, the Aadhaar scheme and the Aadhaar Act, 2016[1], have faced a lot of hurdles. Sometimes questions were raised about the constitutional backing of Aadhaar, whereas other times the government’s way of passing the Aadhaar Act, 2016 as a money bill was criticized. This blog also contains the landmark judgments that gave a new direction and meaning to the Aadhaar Scheme. While some favoured the scheme to a great extent, other cases questioned its validity and demanded a judicial review.

HISTORY AND BACKGROUND-

A national identity project had long been on the radar of the Indian government. As a part of the National Common Minimum Programme, launched by the UPA government on May 27th, 2004, the government realised that there was an ardent need to revamp government subsidies.[2] Thus, in 2006, the government unveiled a plan for a unique identity for below-poverty-line (BPL) families, but the plan clashed with the National ID plan of 2002. On January 28th, 2009, the government finally established the Unique Identification Authority of India (UIDAI), an associated office under the Planning Commission (now NITI Aayog). While on July 12, 2016, the Government of India formed UIDAI as a statutory entity in accordance with the requirements of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016 (“Aadhaar Act 2016”).[3] The UIDAI was an agency entrusted with the task of issuing Aadhaar, “Aadhaar is a 12 digit individual identification number issued by the Unique Identification Authority of India on behalf of the Government of India.

Several petitions were filed in the Supreme Court against Aadhaar. The first among them was filed by a retired Karnataka High Court judge, KS Puttaswamy, in the year 2012. He challenged the legitimacy of Aadhaar by terming its issuance as a violation of the fundamental right to privacy. On March 3, 2016, the government proposed a money bill in Parliament to support Aadhaar, and on March 11, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016 (Aadhaar Act 2016). The Aadhaar Act, 2016, was passed by the government in an effort to quell opposition to the system (Aadhaar Scheme), although it was once again met with criticism for bypassing the Rajya Sabha and being introduced and passed as a money bill.[4]

DISPUTE BETWEEN AADHAAR ADVOCATES AND ITS CRITICS

The government justifies its decision to introduce Aadhaar by saying that it would lead to a more inclusive implementation of welfare schemes. On the other hand, critics term Aadhaar as a source of mass surveillance for the government. They claim that the state will track residents’ movements, evaluate their routines, and ultimately change their behaviour using this centralised information to create profiles of them. Profiling will eventually provide the state with the ability to silence any opposition to its policies and sway political judgments. It would result in a situation in which every basic facility would be linked to Aadhaar and one would be unable to live without an Aadhaar number.[5]

AADHAAR-RELATED LANDMARK JUDGMENTS-

The initial petition challenging Aadhaar was submitted by eminent Justice Mr. KS Puttaswamy in 2012; however, the actual process for this didn’t begin until a decision from the Supreme Court in October 2015. Furthermore Chief Justice Dipak Misra appointed a nine-judge bench in the case known as Justice K.S. Puttaswamy (Retd.) and Anr. v Union of India and Ors[6] in July 2017 and issued a ruling that the Right to Privacy is protected as an intrinsic part of the Right to Life and Personal Liberty under Article 21[7] of the Constitution of India. The majority 4:1 decision in the said case upheld the validity of the Aadhaar Act while striking some of its provisions.

The majority contested the claim, that Aadhaar is a surveillance tool, noting that while it does collect demographic and biographic data, it does not keep track of transactional details like the reason for the transaction, where it took place, or any other facts. The bench also disregarded the claim that Aadhaar is unlawful. The panel further rejected the claim that Aadhaar infringes the right to privacy, saying that it passes the three-part test outlined in the Justice K.S. Puttaswamy case. The Puttaswamy test states that in order for an act or law to violate the right to privacy, it must fail [8]-a) Legality  b) Necessity  c) Proportionality

Aadhaar’s constitutional legitimacy was upheld, although the bench invalidated a number of its clauses as mentioned below-

  1. a) Section 2(d)[9], declared unconstitutional as a collection of metadata conducive to a surveillance state.
  2. b) Upheld Section 7[10], which made Aadhaar mandatory for receiving state subsidies, benefits, and services.
  3. c) Removed the section of Section 57[11] that allowed corporations and individuals to seek Aadhaar authentication.
  4. d) Supported Aadhaar-Pan Card Linking as it passed the 2017 three-fold test
  5. e) The linking of Aadhaar to banks and SIM cards were rejected because it failed the proportionality test.

Section 2(d)[12], Section 33(2)[13], and Regulation 27[14] of the Aadhaar (Authentication Regulations) Act 2016 have all been repealed. Whereas Section 47[15] was partially struck down.

The majority judgement also upheld the passing of the Aadhaar Act as a money bill. The Hon’ble Justice Bhushan, who had a concurring opinion in the case too stated that passing of the Aadhaar Act as a money bill is justified. The Aadhaar Act’s passage as a money bill, on the other hand, was deemed an unconstitutional action via Justice DY Chandrachud. He contends that in order for an act to be authorised as a money bill, it should only encompass provisions addressing the issues listed in Article 110(1)[16], clause (a) – (g), of the Constitution but the Aadhaar Act governs a range of additional features of the Aadhaar programme that are outside the purview of Article 110 (1)[17]. Furthermore in the case of Roger Mathew v. South Indian Bank Ltd. and Ors[18] , a  five-judge Supreme Court panel voiced doubts about the accuracy of the 2018 ruling on Aadhaar by stating that the Aadhaar 2018 decision had failed to specify the parameters of Article 110 (1)[19] and forwarded the matter to a seven-judge bench.[20]

CONCLUSION-

The Roger Mathew decision was rendered about three years ago, but the Apex Court has yet to convene a larger bench to rule on the constitutionality of the government’s decision to approve the Aadhaar Act, 2016 as a money bill. By a vote of 4:3, the Supreme Court dismissed all review petitions contesting the legality of the 2018 Aadhaar ruling. This majority judgement was again dissented by Justice DY Chandrachud. Aadhaar has become linked to every sphere of our lives in today’s time. Aadhaar is a document that is required at all times. A document having this much importance still has vagueness on the point of its constitutional validity and, on top of that, the apex court itself dismissing the question of judicial review is a matter of concern. A judicial review of the 2018 Aadhaar judgement could be a better way to answer all the underlying questions behind the Aadhaar Scheme. Once these questions are answered, it can lead to a better implementation of the Aadhaar Scheme, and it is implied that if the implementation of Aadhaar is effective, it will definitely yield successful results.

Author(s) Name: Sejal Birani (Institute of Law, Nirma University, Ahmedabad)

References:

[1]‘Unique Identification Authority of India: Government of India’ (Unique Identification Authority of India | Government of India) <https://uidai.gov.in/images/Aadhaar_Act_2016_as_amended.pdf > accessed 08 August 2022

[2] ‘The Common Minimum Programme: The Complete Document’ (The Economic Times, 27 May 2007) <https://economictimes.indiatimes.com/news/economy/policy/the-common-minimum-programme-the-complete-document/articleshow/703712.cms&gt> accessed 08 August 2022

[3] ‘Unique Identification Authority of India: Government of India’ (Unique Identification Authority of India) <https://uidai.gov.in/&gt > accessed 08 August 2022

[4] Murali Krishnan ‘SC to hear pleas challenging Aadhaar verdict on June 9’ (Hindustan Times, 07 June 2020) <https://www.hindustantimes.com/india-news/sc-to-hear-pleas-challenging-aadhaar-verdict-on-june-9/story-F0fzhuen7DIhtbhIijNlzM.html> accessed 08 August 2022

[5] ‘Challenges against Aadhaar’ (IAS Parliament, 26 September 2018) <https://www.iasparliament.com/current-affairs/challenges-against-aadhaar&gt>  accessed 08 August 2022

[6] K.S. Puttaswamy and Anr. v Union of India (2017) 10 SCC 1

[7] Constitution of India 1950, art 21

[8] ‘Judgment in Plain English: Constitutionality of Aadhaar Act’ ( Supreme Court Observer) <https://www.scobserver.in/reports/constitutionality-of-aadhaar-justice-k-s-puttaswamy-union-of-india-judgment-in-plain-english/>  accessed 08 August 2022

[9] Aadhaar (Authentication Regulations) Act 2016, s 2(d)

[10] Aadhaar (Authentication Regulations) Act 2016, s 7

[11]Aadhaar (Authentication Regulations) Act 2016, s 57

[12] Aadhaar (Authentication Regulations) Act 2016, s 2(d)

[13] Aadhaar (Authentication Regulations) Act 2016, s 33(2)

[14] Aadhaar (Authentication Regulations) Act 2016, r 27

[15] Aadhaar (Authentication Regulations) Act 2016, s 47

[16] Constitution of India 1950, art 110(1)

[17] Constitution of India 1950, art 110(1)

[18]  Rojer Mathew v. South Indian Bank Limited, (2020) 6 Supreme Court Cases 1

[19] Constitution of India 1950, art 110(1)

[20] Apoorva Mandhani,‘Review pleas pending, 7-judge bench not formed — Aadhaar Act validity case languishes in SC’ (The Print, 04 January 2021) <https://theprint.in/judiciary/review-pleas-pending-7-judge-bench-not-formed-aadhaar-act-validity-case-languishes-in-sc/578834/pending-7-judge-bench-not-formed-aadhaar-act-validity-case-languishes-in-sc/578834/> accessed 08 August 2022