The Rights and Wrongs of Aadhaar as a Money Bill

The move by the Narendra Modi-led government to introduce the Aadhaar Bill as a money bill has got politicians, constitutional experts and rights activists worried.

The move by the Narendra Modi-led government to introduce the Aadhaar Bill as a money bill has got politicians, constitutional experts and rights activists worried. Many believe the government’s decision to introduce the money bill is aimed at bypassing any opposition in the Rajya Sabha, where the BJP and its allies are in a minority. The move is being termed by some as “colourable legislation”, wherein under guise of power conferred for a particular purpose, the legislature seeks to achieve another purpose, for which it is otherwise not competent to legislate on. Also, the government ostensibly did not want the Bill to meet the same fate as the Goods and Services Tax Bill in the Rajya Sabha.

Many policy-watchers are worried by the government’s attempts to push through a legislation that poses risks to the privacy and security of individuals, and the military security of the country. Concerns about the sharing and misuse of collected data have still not been addressed.

The Aadhaar Bill

The bill was first introduced as The National Identification Authority of India (NIDAI) Bill in the upper house of parliament on December 3, 2010 by the UPA government. A week later it was referred by the Lok Sabha speaker to the Standing Committee on Finance, but it could not become a law. The NIDAI Bill was finally withdrawn by the government from Rajya Sabha hours after Finance Minister Arun Jaitley introduced The Aadhaar (Target Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 on March 3.

Jaitley claims the Aadhaar Bill seeks to provide statutory backing for the transfer of government subsidies and benefits, and to put in place a regulatory framework to protect the core biometric information of Aadhaar cardholders from any unauthorised disclosure or sharing. The government has been keen on pressing for this legislation as about 95% of the adult population has already been covered and about 98 crore unique identity or Aadhaar numbers have been issued.

Jaitley defended the introduction of the money bill – on which the Rajya Sabha can only make recommendations but no amendments and which has to be returned to Lok Sabha within 14 days else it is considered approved – on the grounds that it was significantly different from the previous version.  

The finance minister contended that it satisfied the requirements of a money bill laid down by Article 110 of the Constitution. Recalling how the Congress had in the 1980s brought legislations relating to juvenile justice and workman injury compensation as money bills, Jaitley said it was for the speaker to decide if the Aadhaar Bill qualified as a money bill.

Alluding to the importance of the Bill, Parliamentary Affairs Minister M Venkaiah Naidu told the lower house that it would result in saving of 20,000 crore rupees by avoiding the leakage of subsidies. The government is also keen on the legislation as direct cash transfers related to subsidies and services are expected to grow substantially in the future.

Opposition to the money bill

The introduction of the bill was opposed by Congress members Mallikarjun Kharge and Jyotiraditya Scindia, who demanded that the Aadhaar Bill should go to the Rajya Sabha too, as it impacted the lives of all citizens. Biju Janata Dal’s Bhartruhari Mahtab, who was a member of the panel to which the earlier bill was referred, said, “There are many contentious issues related to Aadhaar number and so the matter was also referred to the Supreme Court.” However, Speaker Sumitra Mahajan allowed the introduction of the Bill.

Senior opposition leaders continued their protest outside the House, questioning the logic of introducing a money bill. Sitaram Yechury of the CPI(M) was among the most vocal in criticising the manner of introduction.

“It is not a money bill. The whole Rajya Sabha has taken that position. The position is that you cannot decide on money bills according to your own whims and fancies. My personal view is there is one clause in the Constitution, which stipulates that in the case of a dispute over a money bill, the ruling of the Speaker is final and binding. That clause is what is being misused today. So, personally in my opinion that clause should go from the Constitution…You find another adjudicating authority because the Speaker of the Lok Sabha, unlike the Chairman of the Rajya Sabha, is one of the elected members of Parliament. Elected on the ticket of one particular political party. And if that political party forms the government then you will always have such predicaments,” Yechury was quoted as saying.

Deputy Leader of the Congress in the Rajya Sabha Anand Sharma also questioned the logic behind the new bill. “If a bill is exclusively dealing with revenues or taxes, then you can categorise that as a money bill. But we find it very strange that where there is only transfer of benefits using the Aadhaar card or the identity of the person concerned or the services of the state…you categorise that also as a money bill. You are talking about cooperative federalism and you are cutting out the Council of states.”

Privacy and security issues

The opposition to the Aadhaar scheme stems from the fears surrounding the issues of personal liberty and national security. Gopal Krishna of the Citizens Forum for Civil Liberties – which has been campaigning against the biometric information-based Aadhaar scheme since 2010 and had appeared before the Yashwant Sinha-headed Parliamentary Committee to give its testimony – who, while referring to the contents of SpyChips: How Major Corporations and Government Plan to Track Your Every Move with RFID (radio frequency identification) by Katherine Albrecht and Liz McIntyre, said, “It is apparent that RFID and UID/aadhaar projects are going to do almost exactly the same thing which the predecessors of Adolf Hitler did, else how is it that Germany always had the lists of Jewish names even prior to the arrival of the Nazis? The Nazis got these lists with the help of IBM which was in the ‘census’ business that included racial census that entailed not only count the Jews but also identifying them. At the US Holocaust Museum in Washington, DC, there is an exhibit of an IBM Hollerith D-11 card sorting machine that was responsible for organising the census of 1933 that first identified the Jews.”

Another major area of concern is the possibility, however small, of the centralised database being handed over to other governments or enemies by someone who works closely with it, or that it would get stolen, as it had in Greece.

If these fears of profiling, selective targeting through the use of technology and theft or misuse of data persisted when the bill was first introduced by the Congress-led government, they have only grown with the Modi government trying to move it with reduced scrutiny.

In fact in the wake of his phone being allegedly tapped in 2013, Jaitley had in an article clearly elucidated his concerns about how Aadhaar could be used as a tool to violate someone’s right to privacy. “This incident throws up another legitimate fear. We are now entering the era of the Aadhaar number. The Government has recently made the existence of the Aadhaar number as a condition precedent for undertaking several activities; from registering marriages to execution of property documents. Will those who encroach upon the affairs of others be able to get access to bank accounts and other important details by breaking into the system? If this ever becomes possible the consequences would be far messier,” said the senior BJP leader, who was the leader of the opposition in the Rajya Sabha at that time.

What could have prompted him to change tacks now? The answer probably lies in the government being unable to mandatorily link the Aadhaar number scheme to various subsidy schemes and services. In October 2015, the Supreme Court had categorically stated that the use of the Aadhaar card would only be allowed on voluntary basis for government schemes.

Subsequently on December 1, 2015 the Standing Committee on Finance, under the chairmanship of Veerappa Moily, had found the “reply of the Ministry on the pending legislation on UIDAI to be repetitive.’’ Observing that it ”had time and again urged the Government to address the key issues related to the UIDAI Bill, particularly in light of recent Supreme Court Judgment,” it had exhorted the Government to immediately address the key issues relating to Unique Identification Authority of India and initiate measures for early legislation on the subject.