By Sarah Watson —
Implementing the Aadhaar Bill is a necessary step towards institutionalizing an initiative, the unique ID program, which could offer India enormous benefits. But the strong content of the bill, and the Modi government’s use of a procedural maneuver to get it through parliament, could taint the program in the eyes of India’s Supreme Court.
On March 16 the Lok Sabha passed The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The Aadhaar Bill was introduced as a Money Bill in the Lok Sabha (where it first passed on March 11), which meant that the Rajya Sabha, the Upper House of Indian Parliament, was only able to offer amendments. The Lok Sabha rejected these in their entirety in a second vote on the evening of the 16th.
The swift passage of the Aadhaar Bill (which had been pending in some form since 2010), was both a victory and a defeat for India’s Unique Identification (UID) initiative. On the plus side, it’s high time that an Indian government gave a statutory basis to a program that has assigned ID numbers to more than 980 million Indians. The Aadhaar initiative is aiming to allot every Indian a unique identity number backed with biometric data, such as iris scans and fingerprints. The program had previously been run as an annex to India’s now-defunct Planning Commission.
But the brief parliamentary debate over Aadhaar, and the small number of representatives who actually were present for the first vote in the Lok Sabha (73 of 545, according to multiple reports), could end up undermining the legitimacy of the program. The government added grist to the mill by controversially classifying the bill as a Money Bill. According to Section 110 of the Indian Constitution, Money Bills are those which contain “only provisions dealing with” or “incidental to,” taxes, appropriations, expenditures, or borrowing. Although the bill allows the Aadhaar number to be used to distribute public subsidies, claiming that the entire program is merely “incidental to” the expenditure of central government funds is a stretch — especially since, as Section 4 of the bill makes clear, Aadhaar numbers can be used for other purposes, like consumer banking.
Beyond its procedural context, the language of the bill enshrines a program with few restrictions on intra-government data-sharing. The bill assigns strict penalties for any outside sharing of or tampering with Aadhaar data, but Section 33 allows the government to have access to the database, “in the interest of national security.” Government requests for database access must be approved by a panel of senior government employees but not by any independent or even quasi-independent body. The data can also be divulged pursuant to a court order, but in that case the Unique Identification Authority of India (UIDAI), the agency responsible for administering Aadhaar, must be granted a hearing — i.e., some form of process must take place. Intra-government disclosure does not require that UIDAI be heard on the matter. Government directions to the UIDAI to share data are not required to be aimed at a particular person or group of persons and last three months, with apparently infinite possibility of renewal.
Furthermore, the bill’s says that “core biometric data” (defined as iris scans and finger prints) can never be shared, but restrictions on sharing other kinds of data are more lax. The government is free to identify new and even more data-rich forms of biometric identification (such as DNA) and make them requirements of receiving an Aadhaar number. These can then be classified as non-core data and shared within the limits of the law. Finally, Section 48 allows the government to take the program over entirely when it chooses (such as in the case of a national emergency), and Section 50 states that the government’s policy decisions regarding the Aadhaar program are final.
Now that the bill has passed, there is not much that opposition politicians and members of civil society can do to change it beyond the almost inevitable court challenge on procedural grounds. The Supreme Court has previously held, in the case of a state legislature, that a bill’s classification as a Money Bill is not justiciable. But there is also robust precedent for the proposition that nothing in Indian politics can avoid judicial scrutiny.
Leaving aside possible future cases, the government’s decision to push such a sweeping bill through parliament could have repercussions for a pending Supreme Court case that has the potential to effectively end the Aadhaar program. The plaintiffs in Justice K.S. Puttaswamy v. Union of India (WP(C) 494 of 2012) claim that the program violates privacy rights guaranteed in India’s Constitution. Following the most recent substantive hearing in the case, in August 2015, a three-justice bench of India’s Supreme Court forbade the government from requiring the Aadhaar number as a condition of receiving public subsidies and limited its use, even on a voluntary basis, to a list of subsidy programs.
Furthermore, after a brief examination of the arguments for and against the presence of privacy rights in India’s constitution, the justices concluded that court precedent is divided on the question and that the “cases on hand raise far reaching questions of importance involving interpretation of the constitution.” In October, therefore, they referred the case to a five-justice ‘constitutional’ bench. There are no reports indicating that oral arguments have begun in the case, which may in fact end by referring the matter to an even larger justice panel.
The contents of the Aadhaar Bill technically should have no effect on the court’s reasoning as to whether or not the Indian Constitution guarantees a right of privacy. But the bill offers the court a clear and immediate example of the kind of legislation that will be preserved and passed should the justices decline to read a right to privacy into the constitution. The fact that a bill that touches on such delicate and divisive questions can be passed as a Money Bill — and thus with the assent of only one house of parliament — might give the court further pause.
Ms. Sarah Watson is an associate fellow with the Wadhwani Chair in U.S.-India Policy Studies at CSIS. She would like to thank Nick Robinson of Yale Law School for his guidance on Indian Supreme Court procedure.
Sarah Watson is an associate fellow with the Wadhwani Chair in U.S.-India Policy Studies at CSIS.