On 11 March 2016, the Lok Sabha passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefit & Services) Bill, 2016. The legislation, introduced by the finance minister Arun Jaitley on 3 March 2016, is aimed at creating a legal framework to govern the aadhaar number scheme that was introduced by the UPA Government in 2010 as a means to create a unique identity for each resident. The uniqueness of the identity lies in the belief that the biometric data, such as fingerprints and iris scans required, to obtain the identification, are near-impossible to replicate, and would ensure that no single person is able to acquire multiple aadhaar numbers. At the time the project was conceived by the Planning Commission in 2006 the aadhaar number was projected as a foolproof remedy to plug leakages in the distribution of subsidies. A central government agency, the Unique Identification Authority of India (UIDAI) was set up to manage the collection of data, its verification and the issuing of aadhaar numbers. With time, the possible uses of UIDAI multiplied manifold, with several states demanding aadhaar number as proof for such as registration of land, or marriages.
Politically, the aadhaar project has been attacked by both the ideological right and left. The right accused the project of compromising national security by not requiring potential applicants to submit citizenship proof. This may, critics claimed, give illegal immigrants the opportunity to get a valid government-approved identity card, which would then allow them access to a wide range of government services. During the election campaign against Nandan Nilekani, the first chairperson of the UIDAI (Nilekani resigned in 2014, three days after joining the Congress), his opponent for the Bangalore South seat, Ananth Kumar of the Bharatiya Janata Party, had slammed the project. “If you illegally enter other countries, you are shot at or put in jail. But if anyone illegally enters India, he is given citizenship. This is the contribution of Aadhaar,” Kumar said. “Half of Assam is occupied by Bangladeshis. Aadhaar is the biggest fraud in the country.” Civil society activists on the left expressed serious concerns regarding the privacy implications of the project—that collecting personal data was an invasion of privacy, and subject to the danger of misuse—as well as the viability of the technology, since it had never been validated on a scale of a billion people. The privacy issue led to public interest litigation before the Supreme Court. The present Aadhaar Bill is a direct result of that litigation—it created uncertainty over the use of the aadhaar number, which the government was counting on as the key component of its Jan-Dhan-Aadhaar-Mobile (JAM) platform of governance. However, in its current form, the bill, like many legislations passed by the Indian parliament, is plagued with the problem of excessively transferring the power of law-making back into the hands of the government at the centre, and its appointed bureaucrats.
The Aadhaar Bill is based primarily on the former United Progressive Alliance government’s draft National Identification Authority of India Bill, 2010, which was rejected in 2011 by a parliamentary standing committee headed by the BJP leader Yashwant Sinha. Although the National Democratic Alliance government’s version of the bill was introduced with the intent of primarily putting to rest the privacy issues raised before the Supreme Court, the legislation takes care to completely omit the use of the word “privacy” in the bill. It does, however, incorporate certain safeguards to protect the “confidentiality” of the information collected and stored by the UIDAI. This change is noteworthy: there is a key legal distinction between both terms. Confidentiality is usually the result of a mutual contract, while privacy is the political right to be left alone. The omission of the term “privacy,” from the Aadhaar Bill is telling in the post-Snowden era, especially in a country like India where the national security establishment has adopted mass surveillance programs like the Centralised Monitoring System with almost no safeguards in place to prevent an abuse of power: it bolsters the fear that the government is not keen on defining a privacy right which could be used as a precedent in the future.
However, while national security and privacy are both important issues, the issue most likely to affect the poor and vulnerable is actually the language of the Aadhaar Bill, which, like the NIAI Bill, liberally delegates crucial law-making powers back to the UIDAI. This problem is not unique to this legislation, and is merely reflective of a larger problem in Indian law-making. In an ideal democracy, the parliament enacts legislation, the executive implements it, and the judiciary adjudicates disputes. Each arm of the state is meant to act as a check on the powers of the other, with the parliament—the most powerful of the three— being directly elected by the people. But in reality, the separation of powers between each arm of the state is not clearly defined. The executive, along with its adjuicatory powers, usually exercises some law-making powers as well. In a healthy democracy, the challenge is to maintain just the right balance between these different arms. In India, though most legislation is eventually enacted by parliament, it is first drafted by the executive, resulting in a tendency to draft laws that tilt the balance of power in its favour. This is most often done through the instrument of delegated legislation: bills introduced in Parliament contain provisions that allow the executive to draft “rules” or “regulations” for implementing the overall policy of the legislation, which the executive can draft after it has passed. When the bills are enacted into law by parliament, then, the government at the centre is allowed to exercise a law-making power of a substantial nature. While some form of delegation of rule-making power to agencies is legal, necessary, and perhaps even welcome, legislators in parliament need to be wary of it, because the bureaucracy that makes up the executive typically avoids strict accountability measures, making life difficult for the common citizen.
The gravity of this problem can be easily illustrated. For instance, the Right to Information Act, 2005 delegated some powers to individual public authorities to make rules for the implementation of the Act. This power included the mode of submitting an application and the fee to be paid with it. The registries of several high courts, which deal with the administrative side of the judiciary, used this rule-making power to fix the application fee as high as Rs 500, which is 50 times the fee prescribed by the central government in its own rules for each of its ministries The government of Uttar Pradesh has recently been in the news for proposing amendments to its RTI rules that impose a 500-word limit on RTI applications and do away with the requirement to publicly display the names of officers responsible for them. The centre is in the process of circulating these amendments amongst all states to solicit views of their governments—a move that activists have interpreted as setting the ground for amending the centre’s own RTI rules. Another example of delegated legislation is the Information Technology (Intermediaries Guidelines) Rules, 2011, for which the parliament delegated the rule-making power to the government as allowed under Section 79 of the Information Technology Act of 2001. The rules were meant to be provide a list of conditions that internet intermediaries were required to follow in order to not be held liable for the unlawful actions of their users. The government’s draft rules required users to take down even blasphemous content, despite blasphemy not being an offence under Indian law. These examples of delegated legislation, some of which are technically legal, end up frustrating the purpose of the law. The devil in the law making process, then, lies in the rules.