Tag: targeted benefits

The Aadhaar Act is Not a Money Bill

While the authority of the Lok Sabha Speaker is final and binding, Jairam Ramesh’s writ petition may allow the Supreme Court to question an incorrect application of substantive principles.

While the authority of the Lok Sabha Speaker is final and binding, Jairam Ramesh’s writ petition may allow the Supreme Court to question an incorrect application of substantive principles.

Credit: D J Singh, Flickr, CC BY 2.0

Passing off the Aadhaar Bill as a money bill could erode the Rajya Sabha’s supervisory role. Credit: D J Singh, Flickr, CC BY 2.0

Since its introduction as a money bill in the Lok Sabha in the first week of March, the Aadhaar (Targeted delivery of Financial and other subsidies, benefits and services) Bill, 2016 has been embroiled in controversy. The Lok Sabha rejected the five recommendations of the Rajya Sabha and adopted the bill on March 16 and only presidential assent was required for it become to become valid law. However, former Union Minister Jairam Ramesh filed a writ petition contesting the decision to treat the Aadhaar Bill as a money bill. The petition is due to be heard before the Supreme Court on April 25, and should the court decide to entertain the petition, it could have far-reaching implications for the Aadhaar project and the manner in which money bills are passed by the Parliament.

There are three broad categories of bills (all legislations or Acts are known as ‘bills’ till they are passed by the Parliament) that the Parliament can pass. The first kind, Constitution Amendment Bills, are those that seek to amend a provision in the Constitution of India. The second are financial bills which contain provisions on matters of taxation and expenditure. Money bills are a subset of the financial bills which contain provisions only related to taxation, financial obligations of the government, expenditure from or receipt to the Consolidated Fund of India and any matters incidental to the above. The third category is of ordinary bills which includes all other bills. The process for the enactment of all these bills is different. Money bills are peculiar in that they can only be introduced in the Lok Sabha where it can be passed by simple majority. Following this, it is transmitted to the Rajya Sabha. The Rajya Sabha’s powers are restricted to giving recommendations on the Bill and sending it back to the Lok Sabha, which the Lok Sabha is under no obligation to accept. The decision to introduce the Aadhaar Bill as a money bill has been widely seen as an attempt to circumvent the Rajya Sabha where the ruling party is in a minority.

Article 110 (1) of the Constitution defines a money bill as one containing provisions only regarding the matters enumerated or any matters incidental to them. These are a) imposition, regulation and abolition of any tax, b) borrowing or other financial obligations of the Government of India, c) custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of India, d) appropriation of money out of CFI, e) expenditure charged on the CFI or f) receipt or custody or audit of money into CFI or public account of India. Article 110 is modelled on Section 1(2) of the (UK) Parliament Act, 1911 which also defines the money bills as those only dealing with certain enumerated matters. The use of the word “only” was brought up by Ghanshyam Singh Gupta during the Constituent Assembly Debates. He pointed out that the use of the word “only” limits the scope of money bills to only those legislations which did not deal with other matters. His amendment to delete the word “only” was rejected clearly establishing the intent of the framers of the Constitution to keep the ambit of money bills extremely narrow.

While the Aadhaar Bill does make references to benefits, subsidies and services funded by the Consolidated Fund of India (CFI), even a cursory reading of the bill reveals its main objectives as creating a right to obtain a unique identification number and providing for a statutory apparatus to regulate the entire process. The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies funded by the CFI does not give it the character of a money bill. The bill merely speaks of facilitating access to unspecified subsidies and benefits rather than their creation and provision being the primary object of the legislation. Erskine May’s seminal textbook, ‘Parliamentary Practice” is instructive in this respect and makes it clear that a legislation which simply makes a charge on the Consolidated Fund does not becomes a money bill if otherwise its character is not that of one.

PDT Achary, former secretary general of the Lok Sabha, has expressed concern about the use of Money Bills as a means to circumvent the Rajya Sabha. He has written here and here, on what constitutes a money bill and how the attempts to pass off financial bills like the Aadhaar Bill as money bills could erode the supervisory role Rajya Sabha is supposed to play. This is especially true in the case of a legislation like the Aadhaar Bill which has far reaching implications for individual privacy as it governs the identification system conceptualised to provide a unique and lifelong identity to residents of India dealing with both the analog and digital machinery of the state and by virtue of Section 57 of any private entities. Already over 1 billion people have been enrolled under this identification scheme, and the project has been a subject of much debate and a petition before the Supreme Court. The project has been portrayed as both the last hope for a welfare state and  surveillance infrastructure. Regardless of which of the two ends of spectrum one leans towards, it is undeniable that the law governing the Aadhaar project deserved a proper debate in the Parliament. Even those who are strong proponents of the project must accept the decision to pass it off as a money bill undermines the importance of democratic processes and is a travesty on the Constitution and a blatant abrogation of the constitutional duties of the speaker.

The petition by Jairam Ramesh would hinge largely on the powers of the judiciary to question the decision of the Speaker of the Lok Sabha. Article 110 (3) is very clear in pronouncing the authority of the Speaker as final and binding. Additionally, Article 122 prohibits the courts from questioning the validity of any proceedings in Parliament on the ground of any alleged irregularity of procedure. The powers of privilege that Parliamentarians enjoy are integral to the principle of separation of powers. However, the courts may be able to make a fine distinction between inquiring into procedural irregularity which is prohibited by the Constitution; and questioning an incorrect application of substantive principles, which I would argue, is the case with the Speaker decision.

Amber Sinha is a policy researcher at the Centre for Internet and Society.

Three Privacy Principles that India Must Uphold

As Aadhaar and Digital India slowly become a reality, there also needs to be an unremitting, focused interest on the protection of individual privacy

As Aadhaar and Digital India slowly become a reality, there also needs to be an unremitting, focused interest on the protection of individual privacy

Privacy1

Secrecy, anonymity and autonomy. Three privacy principles that the Modi Government needs to protect. Credit: g4ll4is, CC BY 2.0/Flickr

Now that the comparatively easy work of freeing the Indian Internet from the greedy reach of the North American “platform” companies has been well advanced, the current government must squarely face the most important issue of our time: Do Indians have a right to privacy and if so what does it entail in the age of data science?

Last year, the Supreme Court had cut straight to the heart of the issue in the Aadhaar petitions. On behalf of all Indian citizens, it had asked the current government to address the most basic questions in a democracy governed by the law: what are the privacy rights of its citizens and are they protected equally? Then, the government passed the Aadhaar Bill with the stated object of providing efficient, transparent and targeted delivery of subsidies, benefits and services. In the present scenario where the Aadhaar Bill was passed as a money bill, the President does not have the power to return it with recommendations, but is mandated to give assent to it.

While multiple arguments have been advanced about the necessity of having Aadhaar, now that it is the law of the land those questions are rendered moot. To advance the discussion forward we must insist on a privacy and data collection framework that allows for UID to exist without its worst case scenarios turning into a harsh reality.

While it is arguable that the collection of vast troves of sensitive information is itself an invasion of privacy, its the use of this data that is rife with abuse. Innocuous data can  be used by many parties with severe consequence for innocent individuals. In the absence of any clear framework about collection, access and sharing of data, it can be shared widely and retained for years without the public ever knowing.

The essence

Privacy—as we use the word in our conversations now all around the world, and particularly when we talk about the net— really means three things.

The first is secrecy, which our ability to keep messages “private,” so that their content is known only to those who we intend to receive them.

The second is anonymity, which is our ability to keep our messages—even when their content is open—obscure as to who has published them and who is receiving them. It is very important that anonymity is an interest we can have in both our publishing and our reading.

The third is autonomy, which is our ability to make our life decisions free of any force which has violated our secrecy or our anonymity.

These three are the principal components of the mixture that we call “privacy”.  A precondition to the order that we call “democracy”, “ordered liberty”, “self-government”, to the particular scheme that we call freedom.

Without secrecy, democratic self-government is impossible. Because people may not discuss public affairs with those they choose, excluding those with whom they do not wish to converse.

Anonymity is necessary for the conduct of democratic politics. That autonomy is vitiated by the wholesale invasion of secrecy and privacy, that free decision making is impossible in a society where every move is monitored.

The government cannot adopt the posture that only one aspect of government’s protective responsibility matters — that the costs of privacy destruction can be imposed upon the people in return for subsidies, or any other social benefit on which they absolutely depend.

The contours of the government’s positive vision for Digital India—far more majestic, complex and potentially transformative in the lives of all Indian citizens—though now emerging, will take much more effort, public and private, and much public dialogue to fulfill.  Here the experts from all quarters, along with the citizen activists who were so vitally important in the last round, must come together to debate issues and implement compromises. This will require skilled knowledge and patient expert negotiation of details, as well as research reports and social media campaigning. But unless everyone’s attention is also unremittingly focused on individual privacy—a right that restricts all government in all contexts and must be respected by private market activity of all kinds everywhere on pain of overwhelming legal liability— the Government’s majestic ambitions could also prove the foundation of intolerable despotism.

Mishi Choudhary is Legal Director, Software Freedom Law Center

Featured image credit: Seb, CC BY 2.0/Flickr