Even as Modi – dispensation is pulling all stops to deliver good governance, a major stumbling bloc is intervention by the judiciary; courtesy, a spate of PILs [public interest litigation] on almost every issue that concerns administration and delivery of public services.
Unlike the executive where once a decision is taken, it gets implemented within a given time frame [under present government, things are happening in a fast track mode], any matter coming to the court for its decision inevitably gets delayed. A case in point is use of Aadhaar for dispensing various services.
The Unique Identification Authority of India (UIDAI), established by UPA – II in 2009, issues Aadhaar cards to the citizens. Under the scheme, every citizen is provided a12-digit unique identification number for which biometric information is collected.
Modi – government which is determined to curb leakages in implementation of its welfare programs/disbursement of subsidies and curb generation of black money/tax evasion has zeroed in on Aadhaar as a foundation document to achieve this objective. In pursuance of this, it has also taken recourse to legislative enactments.
In March 2016, it got the Aadhaar [Targeted Delivery of Financial and Other Subsidies, Benefits and Services] Bill, 2016 passed. The Act made it mandatory for a person to enroll him for Aadhaar to be eligible for receiving a subsidy or government service. Vide Finance Bill for 2017-18, it amended the Income Tax Act [1961] by inserting Section 139AA to make seeding of PAN with Aadhaar and filing Income Tax returns mandatory.
Despite its transformative role in spurring development, reaching out welfare services to majority of the poor and empowering them [via financial inclusion, skill development and other means], the constitutional validity of Aadhaar as also above legislative enactments have been challenged purportedly on the ground that it infringes on privacy of an individual.
Unfortunately, the Supreme Court [SC] has thus far looked at the issue in a cavalier and piecemeal manner. In its interim order [August 11, 2015], a three member Constitution bench had permitted use of Aadhaar only for delivering subsidy on food under PDS and LPG subsidy besides social welfare schemes aimed at reaching the door steps of the “poorest of the poor” on a ‘voluntary’ basis.
In another order [October 15, 2015], a five-judge Constitution bench extended use of the Aadhaar card – again on voluntary basis – to avail other government schemes like the Mahatma Gandhi National Rural Employment Guarantee Scheme [MGNREGA], Pradhan Mantri Jan Dhan Yojana [PMJDY], employee provident fund, pension schemes and scholarships.
In yet another order [March 28, 2017], a three-member Constitution bench headed by Chief Justice JS Khehar, reiterated the position stated in the August 11/ October 15, 2015 order that “disbursements of assorted government subsidies and doles cannot be strictly Aadhaar-linked”, but added that ‘there was no bar on linking of non-welfare schemes to Aadhaar’.
On the issue of amendment to the IT Act [Section 139AA] initially, the apex court took umbrage to government’s decision saying it violated its interim order permitting use of Aadhaar on voluntary basis only. Subsequently, vide its order dt June 9, 2017, a Division Bench upheld the amendment thereby making Aadhaar authentication mandatory for issue of PAN and filing IT return.
However, this relief as also in other areas where use of Aadhaar is permitted on ‘voluntary’ basis hangs in the balance as the SC is yet to pronounce its judgment on the core issue of whether ‘Aadhaar infringes on the privacy of an individual’. This in turn, hinges on a determination whether right to privacy can be held to be a fundamental right under the Constitution.
On these core issues, after much dilly dallying, a five-judge bench, headed by CJI, J S Khehar decided to set up a nine-judge bench to decide “whether right to privacy can be declared a fundamental right under the Constitution”. Only after the bench gives its decision, the main question of challenge to the Aadhaar will be taken up for adjudication.
The founding fathers of the Constitution did not provide for right to privacy as a fundamental right. This was upheld by eight-judge bench in M P Sharma’s case [1954] and subsequently by a six-judge bench in Kharak Singh’s case in [1962]. Yet, a whole Pandora box has been opened up merely because a little known judgment of the apex court [a bench smaller than 6/8] in 70s had taken a different stance.
What an anomaly is this? On the one hand, we have the welfare of crores of Indians living below the poverty line and growth of the economy which had been held back due to lack of resources – both of which will get a push with use of Aadhaar. On the other, there is the so called privacy which a couple of individuals [read petitioners] believe will be compromised by mere act of sharing biometric data on Aadhaar platform with the government. And, the noise made by them is so intense that prompts the judiciary to take notice and expend several years in just setting up a bench to take a view.
For crores of people who struggle day-in-and-day-out to have access to basics of life viz. food, shelter, clothing, education, health care, the very idea of ‘privacy’ is repugnant. Even if, it gets infringed [a remote possibility with the government giving an undertaking that information will not be misused], they will hardly suffer any loss. On the other hand, if in the name of privacy, financial help to the poor gets delayed or black money mongers continue to dodge paying taxes thereby impeding development, then, consequences will be horrendous.
Clearly, development and people’s welfare cannot be held hostage to the privacy of an individual. The nine judge bench which is currently hearing arguments should keep this paramount consideration in mind. Even if the apex court upholds right to privacy as a fundamental right, it should provide for enough safeguards to ensure that use of Aadhaar in all such areas where transfer of funds ‘from-and-to’ the exchequer are involved is not jeopardized.
The top court must move things on ‘fast track’ – as promised – so that the uncertainty ends soon.