Next week on Monday, the 25th April, 2016 the Supreme Court will hear a writ petition filed by Jairam Ramesh that challenges the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. As per press reports the grounds of challenge are restricted to the Aadhaar Act, 2016 being passed as a Money Bill through parliament.

 

The Rajya Sabha functions as a revising house of parliament and often makes amendments to legislations introduced in the Lok Sabha. This power of amendment is not available to the Rajya Sabha only in cases of Money Bills. It can only make recommendations which can be disregarded by the Lok Sabha. Given this limitation on the Rajya Sabha’s power Money Bills are restrictively defined under the Constitution.

 

As per several experts on parliamentary procedure the Aadhaar Act, 2016 cannot be in any way considered as a Money Bill. These experts further state that making the Aadhaar Act, 2016 through the Money Bill route has prevented proper scrutiny and debate and ultimately undermined the right to privacy.

 

Rushing through the Aadhaar Act, 2016 as a money bill

 

Rushing the Aadhaar Act, 2016 as a money bill (as distinguished from an ordinary bill) necessary parliamentary scrutiny has been avoided. Wide debate and public consultation on the law was required given the surrounding circumstances around the Aadhaar Scheme as listed below.

 

  • Though the Aadhaar Act, 2016 may promise several benefits it also will impact the privacy of individuals. A batch of petitions in the Supreme Court challenging the Aadhaar scheme have been collectively referred to a constitution bench to examine whether a constitutional right to privacy even exists. Today, the very existence of the right to privacy as a constitutional right is in doubt. It is clear that the Aadhaar scheme poses questions of privacy which merit wide debate and consultation.
  • The Aadhaar Act, 2016 is not a completely fresh legislation. The legislature has in the past tried to give the Aadhaar Scheme statutory backing by introducing the National Identification Authority of India Bill, 2010 as an ordinary bill. This bill came in for severe criticism (as it was an ordinary bill) was referred to a parliamentary committee. This committee by its report not only suggested several amendments but questioned the viability of the Aadhaar Scheme itself pointing out clear breaches of privacy which would result from it. The Aadhaar Act, 2016 does not incorporate these suggestions adequately. As an earlier law on the same subject was introduced as a non-money bill, using the money bill route for the Aadhaar Act, 2016 only undermines public trust.
  • Since the Rajya Sabha had limited powers to review the Aadhaar Act, 2016 it could only make non-binding recommendations. It made 5 amendments which would have had made the Aadhaar Act, 2016 more citizen friendly by increasing privacy rights and user control over data. However, as the Aadhaar Act, 2016 was introduced as money bill all 5 recommendations were rejected by the Lok Sabha.

 

Privacy beyond Aadhaar (starts within Aadhaar)

 

Privacy as a topic goes well beyond the Aadhaar ID scheme. Interactions in our increasingly digital lives put our personal data in the control of third parties. This includes the government and private companies. It is in the public interest that privacy is recognised as a right which puts individuals at the center and in control of their data. This requires several measures, but at first a recognition as to the constitutional right to privacy.

 

Any recognition of the constitutional principle of privacy will only be given meaning by a law which helps its enforcement. A law that has the ability of defining privacy and improving it continuously. Also, in case of breaches to privacy providing a system of penalties which can be availed easily by everyday Indians. This requires a substantive privacy legislation which has been delayed over years. Any such legislation should be brought through an open, public consultation as was recently done for the Network Neutrality campaign.

 

These two measures, (a) express recognition of the constitutional right to privacy; and (b) a comprehensive privacy legislation through a public consultation, are expected to take time. We believe the Government of India acting in the best interests of citizens will work towards both. In the interim there is an urgent need to hold a public consultation on the Aadhaar Act, 2016 given it is yet to come into force. This need is urgent as the Aadhaar ID scheme continues enrollment and is today being used by many government agencies and private companies as well.

 

Any legislation which impacts privacy requires proper parliamentary scrutiny and deserves to be deliberated in an open and transparent manner through a public consultation. The Aadhaar Act, 2016 being rushed through Parliament, as a money bill has set a worrying precedent. This can today be mitigated by organising a public consultation towards making amendments in the Aadhaar Act, 2016 safeguarding personal privacy.

 

 

Further resources

According to experts and commentators the Aadhaar Act for several reasons does not qualify as a Money Bill (read more here).

In addition to this we have created a separate list of resources which contains their analysis with links to relevant documents (read more here).

Readers are encouraged to go through them both.