The Aadhaar Programme Violates Democratic Process and Constitutional Rights

Tax-paying Indians now face a choice between obtaining an Aadhaar card to comply or being ascribed the status of a criminal. Jonathan Torgovnik/Getty Images
05 April, 2017

It is difficult to understate the scale and significance of Aadhaar, the government’s programme for a national identification card for every Indian. More than one billion Indians have already been enrolled, and their personally identifiable information—biometrics, bank-account and demographic details—are already held in a government database, the legality and security of which is contested. Disagreements about Aadhaar are disagreements about no less than what it means to be a citizen in a democratic state, as the unfolding litigation challenging the Aadhaar programme attests.

Several petitions challenging Aadhaar are pending before the Supreme Court. Until the court pronounces its final judgment on the programme’s legality, this much is clear from its previous orders: enrolment into Aadhaar is “purely voluntary.” This ruling has been honoured in its repeated breach by the government. The latest breach has been in the passage of an amended Finance Bill, 2017, which would make an Aadhaar number mandatory for the filing of tax returns.

The cases before the court raise two classes of questions about the Aadhaar programme and the Aadhaar Act, which enables it. Both classes relate to their compatibility with the Constitution of India, in terms of its text as well as the value commitments that the text necessarily implies. Chief among these is a commitment to our republican form, which requires a recognition that sovereign power vests not in any political party or constitutional functionary but rather in us all, as citizens. At play in the Aadhaar cases are all the corollaries of this commitment: that the government, parliament and courts are mere custodians of political power, that Indian citizens are not subjects, and that they are entitled to a government that is transparent, accountable and solicitous of citizens’ rights above all else.

The first class of questions before the court relates to matters of the everyday life of a democratic government and how it ought to look. These arguments posit that Aadhaar conflicts with both constitutional structure and process. They rest on the notion that only democratic processes can yield democratic and constitutionally defensible outcomes. They are a call for a government that operates in good faith.

The most recent impetus for concerns in this class is the passage of the Finance Bill, 2017—a money bill—in the Lok Sabha on 30 March. Money bills are a special species of legislation. Article 110 of the Constitution leaves no doubt as to their contents: a money bill “contains provisions only dealing with” matters relating to public finances. The same provision empowers the speaker of the Lok Sabha to make the final decision in instances where any question as to whether a bill has the character of a money bill arises. Article 109 of the Constitution, which lays out the procedure through which a money bill is passed, gives the Rajya Sabha little effective say: a money bill can only be introduced in the Lok Sabha, and unlike ordinary legislation, the Rajya Sabha can only recommend amendments to the bill, which the Lok Sabha is free to disregard if it chooses.

Each year, the Union’s budgets are passed this way. This year’s finance bill included 40 amendments, none of which had any discernible link to public finances in the way that Article 110 envisions. Among these was the amendment that would make Aadhaar mandatory for filing tax returns and applying for a Permanent Account Number (PAN) card. Almost exactly a year ago, the Aadhaar Act was also pushed through the parliament as a money bill amid protests by the opposition. (A challenge to the speaker’s decision to certify the Aadhaar Bill as a money bill is presently pending before the Supreme Court.)

At the Supreme Court, the central government will likely evade meeting arguments from Aadhaar’s critics about the use of the money bill. It could do so by arguing that the speaker’s determination about the nature of a proposed legislation is beyond the pale of the court’s powers of judicial review. As a matter of parliamentary procedure, the speaker determines which legislations are tabled in Lok Sabha, how they’re categorised, and the length and context of the discussion of the legislation in the house. The position allows for a wide discretion, but it comes with the presumption that it will be exercised responsibly. But to ensure the good health of democracy, it is equally important that we, as citizens in whose interest the speaker should act, subject the speaker’s decisions to careful scrutiny and call it to account whenever necessary.

Another omission in complying with parliamentary procedure was the government’s failure to give effective notice of the amendments to the bill before the finance minister introduced them in the Lok Sabha. The amendments were circulated less than 48 hours before the introduction of the bill in parliament, and had found no mention in his budget speech on 1 February. In order to facilitate these amendments, the speaker suspended the rule that requires amendments to a bill to be within its scope. As a result, members of parliament were not given a real opportunity to present a well-prepared, reasoned disagreement with the bill. When one party has a strong majority in the Lok Sabha, the need to afford everyone else the opportunity to present their best criticisms is particularly pressing. The failure to do so undermines the parliament’s commitment to open and inclusive decision-making processes. It further denies the majority’s own position the opportunity of being tested and sharpened by competition with opposing ideas.

A final issue of significance, in relation to the first class of questions about Aadhaar, is the government’s  persistence in disregarding judicial orders that Aadhaar cannot be made mandatory. Since January 2017, Aadhaar cards have been made mandatory for at least 22 different schemes. The government has even gone as far as to revive the very measures in relation to which these judicial orders were passed. In September 2016, the Supreme Court had issued a stay against a measure that would link scholarships for higher education to the Aadhaar card. One among the slew of schemes notified since January is a notification of 16 February 2017 that makes Aadhaar mandatory for the very same scholarships.

The government’s single-mindedness in making Aadhaar mandatory also extends to disregarding the terms of laws it has itself passed. Section 55 of the Aadhaar Act requires that regulations made under the Aadhaar Act be laid before both houses of Parliament for a period of 30 days, which may comprise more than one session. The Unique Identification Authority of India (UIDAI)—the authority responsible for issuing and authenticating Aadhaar numbers—notified five regulations concerning enrolment, authenticating, and the security of Aadhaar in September 2016. These regulations were placed before the parliament on the last day of the 2016 winter session. All five are yet to satisfy the 30-day requirement of Section 55.

Arguably, the provision facilitating the government’s efforts to make Aadhaar mandatory is Regulation 12 of the Aadhaar (Enrolment and Update) Regulations, 2016. It provides that any government department or agency that “requires” a potential beneficiary to have an Aadhaar number to avail “any subsidy, benefit or service” shall “ensure enrolment.” In doing so, the regulations, which were framed and notified by the government in exercise of a power given to it by the parliament under the act, appear to be exceeding their remit. Section 7 of the Aadhaar Act—which allows the government to introduce schemes that require an Aadhaar card—sets out that if an otherwise entitled beneficiary of a scheme does not have an Aadhaar card, an alternative identity proof would suffice.

The second class of questions that the petitions pending before the court  have raised relates to questions of whether, and how far, the Aadhaar programme affects our constitutional rights. These legal criticisms centre mainly on the right to privacy and the disproportionate degree of interference with it because of Aadhaar’s data collection, retention and aggregation policies.

Aadhaar’s capacity to serve as an unchecked instrument of mass and secret surveillance is evident from three circumstances. First, there is the function creep that has characterised its rollout—the ever expanding list of uses that Aadhaar numbers are being put to now includes tracking tax compliance. Second, there is the admitted reality that the government will be able to combine Aadhaar database with other government databases. Finally, there is the statutory license for law enforcement agencies to access its contents. Typically, authorities would need to show good cause before treating its citizens as suspected criminals and interfering with their rights. Aadhaar, by enabling indiscriminate surveillance, normalises that exception—effectively making the state’s capacity to treat its citizens as suspects an acceptable, even routine practice. As a result, it is susceptible to several points of criticism that are applicable to surveillance systems not overseen by a neutral body: it does not limit the persons under surveillance; it does not define the period or purpose of surveillance; and it does not notify the subjects of the database of the surveillance at all.

The special character of privacy harms is also worth noting: unlike a ban that can be lifted or a piece of land that can be returned to its rightful owner, once our data is collected and collated into a centralised government database, the harm is done and  it is done irreversibly. So, the longer we must wait for the Supreme Court’s verdict on the Aadhaar programme, the more likely it is that it would be too late to make a difference. Five judges of the Supreme Court—a constitution bench—had noted the “urgency” in hearing this matter on 15 October 2015. But a bench of three others, including the Chief Justice of India JS Khehar, denied a request for an urgent hearing on 5 January, and on 27 March, when the request was made again in the wake of amendments to the Finance Bill, 2017. The matter is next listed for 10 April.

The Finance Bill, 2017 has introduced an additional route for the erosion of democratic rights. The failure to properly file tax returns is a criminal offence. So, tax-paying Indians now face a choice between obtaining an Aadhaar card to comply or being ascribed the status of a criminal. This is not new. Similar choices—between doing without employment or elementary education on one hand, and obtaining an Aadhaar card on the other—have previously been offered to Indian citizens.

In defence of the move to make Aadhaar mandatory for the filing of tax returns, the government proffers the argument that it would reduce tax evasion. If this is true, its position would amount to the unconscionable one of privileging expedience in the pursuit of its interests—presumably law enforcement in this instance—over respecting the fundamental freedoms that democracies themselves are constructed to preserve. Every arm of the Indian state exists at the pleasure of, and in service to Indian citizens. The Aadhaar programme suggests that the government is losing sight of this fact.