Privacy, security and Money Bill Question: Jairam's challenge to Aadhaar

Jairam Ramesh has sought early hearing in challenge to introduction of Aadhaar Act as money bill

Aadhaar is again in the limelight. After the Supreme Court's historic ruling on 24 August, deeming privacy as a fundamental right under the Constitution, the issues of privacy and sharing information collected under Aadhaar is being questioned in the public.

The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016, better known as Aadhaar Bill, was passed in by both houses of the parliament on March 25th and the gazette notification was issued on 26th of March 2016.

But emboldened with the apex court's latest ruling, senior Congress leader Jairam Ramesh has again approached the Supreme Court and now he has sought an early hearing in a challenge to the introduction of the Aadhaar Act as a money bill in Parliament.

Terming it "unconstitutional" and claiming it was incorrectly introduced as a money bill, Jairam Ramesh had challenged Aadhaar Act last year in April 2016, immediately after it was passed by both houses of the parliament. The matter is likely to be taken up on 1 September. Hearing the plea of Ramesh on Tuesday, a SC bench headed by chief justice Dipak Misra, asked his counsel P. Chidambaram to mention the matter again on Friday.

Aadhaar, which was envisioned and created by the United Progressive Alliance (UPA) government through an executive order on 28 January 2009, is surprisingly being opposed and challenged by the Congress party leader Jairam Ramesh.

Several aspects of Aadhaar have been contested in court over the years, and await final resolution.

The Supreme Court of India has also issued several directives on Aadhaar's permissible uses.

Here is all about NDA Government's Aadhaar and the Congress leader's logic and 'Aadhaar' to challenge it.

Although Ramesh has challenged the passing of Aadhaar as a Money Bill, but during the arguments, his challenges may have far-reaching impact, including the determination of whether India's Constitution affords a right to privacy given by the apex court recently and what the nature and limitations of such a right may be.

Aadhaar was created through an executive order in 2009 when UPA was in power. Legislation governing Aadhaar was introduced twice-in 2010 and 2016-and passed the second time in the form of the Aadhaar Act 2016.

The first Aadhaar number was issued on 29 September 2010. The creation of the UIDAI capped several years of movement towards a national identity project in India. Housed under the erstwhile Planning Commission, the UIDAI was envisioned as a pan-departmental agency responsible for issuing a unique identifier - Aadhaar - to every Indian resident.

The Aadhaar Bill, 2016, which was first mooted as the Indian equivalent to the Social Security Number in the US, was passed by the Lok Sabha on March 21, 2016.

The Bill was returned by the Rajya Sabha with five key amendments, but these were turned down and the LS passed it as a Money Bill.

THE FIVE KEY AMENDMENTS

The day was marked by high drama, when the Parliament passed the controversial Aadhaar Bill, 2016, March 25th, 2016 after acrimonious debates in both Houses, even as the Opposition aired its concerns over the possibility of mass surveillance, hours after the Opposition succeeded in pushing through five amendments to the Bill in the Rajya Sabha, they were rejected in the Lok Sabha.

Here are the key amendments to the Aadhaar Bill, 2016 which were moved by Congress leader Jairam Ramesh, and were passed with a majority vote in favour.

First amendment included one that sought to prevent disclosure of "biometric or demographic information" in the interests of "national security" which was seen as too sweeping.

It was suggested that "national security" be replaced with "public emergency or in the interests of "public safety."

Second amendment related to permitting individuals with Aadhaar numbers to opt out of the system, with the Central Identities Data Repository deleting all information and authentication records, and giving a certificate to that effect within 15 days.

Third amendment provided for alternative identification for delivery of services, subsidies and benefits to those choosing not to enrol for an Aadhaar number.

Fourth amendment mandated the inclusion of the Central Vigilance Commissioner or the Comptroller and Auditor-General in the Oversight Committee.

Fifth amendment sought the deletion of a clause that allows the Aadhaar number to be used for purposes other than those provided in the Bill.

Finance Minister Arun Jaitley's reply

Brushing aside the objections raised by the Opposition, Finance Minister Arun Jaitley had replied all points in the Lok Sabha.

Here are the replies of Finance Minister Arun Jaitely to the major points raised by the opposition in the Lok Sabha during the debate last year in March 2016.

On the question of Privacy -

Arguing that privacy was not a fundamental right (SC ruling had not came till then), Union Finance Minister Arun Jaitley told the Lok Sabha that the legislation's primary objective was delivery of benefits, subsidies and services to the people. He sought to reassure the House that any gaps in the law could be improved with the passage of time, but the Opposition remained unconvinced. It argued that the privacy of a billion people could be compromised.

Jaitely further said, "Privacy laws have been tightened to an extent that the data of individuals would be shared only on grounds of national security and sought to explain the difference between 'national security' and 'public safety' The decision to share the data must be taken by an officer of rank of over Joint Secretary and reviewed by a committee headed by Cabinet Secretary."

On National Security Issue

On Sitaram Yechury's demand to define the term 'national security', Jaitely said - Over the years 'national security' has become a "narrower phrase", while other phrases like 'public order' or 'public safety' ar"vague phrases". He also cited examples from U.S. laws.

Opposition on treating it as Money Bill

The Opposition had also strongly objected to the presentation of the legislation treating it as a Money Bill as this ensured that it was passed without the approval of the Rajya Sabha. Several Opposition members including Sitaram Yechury (CPI(M)), Mr. Ramesh (Congress), Naresh Agrawal (SP) and K.C. Tyagi (JD(U)) among others, opposed the government's decision to label the Aadhaar Bill as a money bill.

What is a Money Bill?

Under the Indian Constitution, a bill may be deemed a Money Bill if it contains only provisions dealing with six specific topics, or matters incidental to those topics. The topics include the imposition, alteration, or regulation of taxes, regulations relating to government borrowing, and payments to or from the Consolidated Fund of India.

According to the Constitution, Money Bill can only be introduced in the Lok Sabha. After it has been passed by the Lok Sabha, it is transmitted to the Rajya Sabha for its recommendations. The Lok Sabha may thereafter accept or reject any or all of the Rajya Sabha's recommendations. If the Lok Sabha does not accept any of the recommendations of the Rajya Sabha, the Money Bill is deemed to have passed in the form in which it was initially passed by the Lok Sabha.

Finance Minister Arun Jaitley's reply

Rejecting opposition's charges, Mr. Jaitley had replied, "The Lok Sabha Speaker had the final authority under the Constitution to declare a bill as money bill and nobody can question that. The Parliament cannot abdicate its right to legislate just because the issue is pending in the Supreme Court."

"One, the purpose of this Bill is distribution of government money by subsidies and the rest is incidental, so it is a money bill.

Two, merely because the executive action is challenged and pending in the Supreme Court the powers of Parliament cannot suspend the right to legislate.

Three, learning from UPA's experience, we have further tightened privacy laws much more than the UPA had in its bill," Jaitely said.

"If the principal purpose is money spent out of the Consolidated Fund of India in a particular manner and a machinery is created for spending that money, it is a Money Bill," Mr. Jaitley said in reply to the Opposition's objections to the legislation being framed as a Money Bill.

Why Aadhaar is important?

Since, the Union Government has been offering many kinds of subsidies and monetary payments to the economically weaker sections of the society, Aadhaar is important for common man, especially the economically weaker sections as a lot of the payments of subsidies which trickle down from the Centre, via a long chain of intermediaries to the final beneficiary is lost in corruption, leakages and bribes today.

The government is keen to reduce the leakages by crediting subsidies directly into the bank accounts of the recipients through its JAM initiative (Jan Dhan bank account-Aadhaar number-Mobile number).

Aadhaar - The current position

Currently, the Aadhaar Act 2016 and subsequent regulations govern the use of Aadhaar in public and private applications. Since Aadhaar's conception in 2009, its legal framework has undergone significant change.

Together they prescribe procedures for the collection, transfer, maintenance, and sharing of personal information under Aadhaar.

In addition, notifications issued by several central and state government ministries also regulate the use of Aadhaar in public service delivery.

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