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- In a recent judgement by the Supreme Court of India, four out of five judges on a Constitution Bench ruled that the law enabling the implementation of the unique identification programme (Aadhar) does not violate the right to privacy of citizens.
- The Supreme Court upheld the constitutional validity of Aadhaar and clarified areas in which it cannot be made mandatory.
- The court is of the view that the project empowers marginalised sections and procures dignity for them along with services, benefits and subsidies by leveraging the power of technology.
- It is important to note that the Aadhaar Act was passed as a money bill.
- The Speaker of the Lok Sabha had classified this bill as a money bill.
What is a Money Bill?
- A Bill is said to be a Money Bill if it only contains provisions related to
- borrowing of money by the government,
- expenditure from or receipt to the Consolidated Fund of India. Bills that only contain provisions that are incidental to these matters would also be regarded as Money Bills.
- A Money Bill may only be introduced in Lok Sabha. This is done so on the recommendation of the President.
- It must be passed in Lok Sabha by a simple majority of all members present and voting. Following this, it may be sent to the Rajya Sabha for its recommendations, which Lok Sabha may reject if it chooses to.
- If such recommendations are not given within 14 days, it will deemed to be passed by Parliament.
What is a Financial Bill?
- A Bill that contains some provisions related to taxation and expenditure, and additionally contains provisions related to any other matter is called a Financial Bill. Therefore, if a Bill merely involves expenditure by the government, and addresses other issues, it will be a financial bill.
- A Financial Bill may only be introduced in Lok Sabha, on the recommendation of the President. The Bill must be passed by both Houses of Parliament, after the President has recommended that it be taken up for consideration in each House.
- It is important to note that the Rajya Sabha has no power to reject or amend a Money Bill. However, a Financial Bill must be passed by both Houses of Parliament.
- The Speaker certifies a Bill as a Money Bill, and the Speaker’s decision is final.
- In recent times, the unique identification programme was projected by sceptics, detractors and activists as an intrusion on citizens’ privacy.
- Many sceptics were of the opinion that the Aadhar was a grand project to appropriate personal data for commercial exploitation by private parties and profiling by the state.
- Last year, 2017, a nine-judge Bench had unanimously ruled that privacy is a fundamental right.
- Ever since this decision by the Supreme Court, opinion began to spread that the unique identification programme was vulnerable in the face of judicial scrutiny.
- On studying this judgement, one draws the conclusion that the Supreme Court has restored the original intent of the programme, which is to plug leakages in subsidy schemes and to have better targeting of welfare benefits.
- Over the past few years, the Aadhaar came to play a large role in the lives of ordinary people.
- The Aadhaar has acquired the shape of a basic identity document that was required to access services, such as:
a) birth and death certificates,
- b) SIM cards,
- c) school admissions,
- d) property registrations and
e) vehicle purchases
- The recent judgment of the Supreme Court narrows the scope of Aadhaar but provides a framework within which it can work.
- This judgement has two views,
a) The majority opinion
- b) The dissenting opinion/judgement
The majority opinion:
- The majority opinion has sought to limit the import of the scheme to aspects directly related to welfare benefits, subsidies and money spent from the Consolidated Fund of India.
- Relying on official statistics, the majority favoured the scheme’s continuance for the sake of the 99.76% of people included under the scheme, rather than show anxiety over the 0.24% who were excluded because of authentication failure.
- The Bench made an important statement by saying that “The remedy is to plug the loopholes rather than axe the project,”.
A few implications of the majority opinion:
- The various controversial circulars and rules making it mandatory to
link mobile phone numbers and bank accounts to Aadhaar numbers have been declared unconstitutional.
- Further, Section 57 of the Aadhaar (Targeted Delivery Of Financial And Other Subsidies, Benefits And Services) Act, 2016, has been struck down to the extent that it authorised body corporates and individuals to use the Aadhaar number to establish someone’s identity.
- Schools have been barred from making the submission of the Aadhaar number mandatory to enrol children.
- A few other provisions have also been read down or clarified.
- Justice DY Chandrachud in his dissenting judgement said that the “Aadhaar allows constructing profiles of individuals, which is against the right to privacy and enables potential surveillance,”.
- Justice Chandrachud said: “Bypassing Rajya Sabha to pass Aadhaar Act amounts to subterfuge and the law can be struck down.”
- He further observed that the Aadhaar cannot be treated as money bill and passing a bill as money bill which is not a money bill is a fraud on the Constitution,”.
- Justice Chandrachud said if Aadhaar is seeded with every database then there is chance of infringement of right to privacy. He said there was absence of regulatory mechanism to provide robust data protection.
- He went on to add that allowing private players to use Aadhaar will lead to profiling which could be used to ascertain political views of citizens.
- Having said this, he agreed with the majority decision that mobile companies cannot insist on Aadhaar.
- He also highlighted that biometric authentication failures have led to denial of rights and legal entitlements. He sighted the reason for such failures in the project’s inability to account for and remedy flaws in its network and design.
- It is important to note that while a dissenting judgement has no force of law, it leaves open the possibility of being referred to a larger bench at a later stage.
- He further ruled that the denial of benefits arising out of any social security rights is “violative of human dignity and impermissible under our constitutional scheme”.
- He also observed that there was no institutional responsibility of the UIDAI to protect the data of citizens.
- The Personal Data Protection Bill, 2018, drafted by the Srikrishna Committee identifies “personal data” as any data that directly or indirectly identifies a person. Further, this bill calls for amending clause 8.1.j of the Right to Information (RTI) Act, 2005.
- The Srikrishna Committee suggests amending this clause to authorise public information officers, or PIOs, to deny information containing ‘personal data’. This denial of information containing ‘personal data’ can be done so if they feel that such disclosure is likely to cause harm to ‘the data principal’, and if such harm outweighs the public interest.
- It is important to note that the Bill defines ‘data principal’ as whoever the data relates to.
- It is thus seen by some observers as going against the idea of the RTI.
- Critics believe that the Data Protection Bill extends the cover of ‘personal data’ over all such information.
- They are of the opinion that the Data Protection Bill asks PIOs, who are now largely appointed at junior levels, to weigh public interest against the potential for harm to those identifiable in public documents.
- Thus, pursuant to this, an important question to ask here would be:
Can we expect PIOs to assess which information is private, and then weigh the potential harm to individuals due to disclosure, guided all the while by public interest and the cause of accountability?
- Critics believe that PIOs will now have a strong legal ground to play safe, and toss out RTI requests deploying an amended clause 8.1.j.
What is the objective of the RTI?
- The RTI Act’s core aim is to bring accountability by making available public records which disclose the actions and decisions of specific, identifiable members of the political class and the bureaucracy.
A brief Look at The Draft Personal Data Protection Bill, 2018
- The Bill sets out certain rights of the individual.
These rights include:
(i) right to obtain confirmation from the fiduciary on whether its personal data has been processed,
(ii) right to seek correction of inaccurate, incomplete, or out-of-date personal data, and (iii) right to have personal data transferred to any other data fiduciary in certain circumstances.
What is a data fiduciary?
- A data fiduciary is someone who “determines the purpose and means of processing of personal data”. Thus, in effect, anyone collecting or using our data is a data fiduciary.
- The Bill provides for the establishment of a Data Protection Authority.
The Authority is empowered to:
(i) take steps to protect interests of individuals,
(ii) prevent misuse of personal data, and
(iii) ensure compliance with the Bill.
- It will consist of a chairperson and six members, with knowledge of at least 10 years in the field of data protection and information technology. Orders of the Authority can be appealed to an Appellate Tribunal established by the central government and appeals from the Tribunal will go to the Supreme Court.
- The Bill allows processing of data by fiduciaries if consent is provided.
- However, in certain circumstances, processing of data may be permitted without the consent of the individual.
- The grounds on which processing of data may be permitted without the consent of the individual include:
- a) if necessary for any function of Parliament or state legislature, or if required by the state for providing benefits to the individual,
b) if required under law or for the compliance of any court judgement,
c) to respond to a medical emergency,
d) threat to public health or breakdown of public order, or,
e) for reasonable purposes specified by the Authority, related to activities such as fraud detection, debt recovery, and whistle blowing.
- Processing of sensitive personal data is allowed on certain grounds. These include:
a) based on explicit consent of the individual,
b) if necessary for any function of Parliament or state legislature, or,
c) if required by the state for providing benefits to the individual, or
d) if required under law or for the compliance of any court judgement.
- Sensitive personal data includes passwords, financial data, biometric data, genetic data, caste, religious or political beliefs, or any other category of data specified by the Authority.
- Additionally, fiduciaries are required to institute appropriate mechanisms for age verification and parental consent when processing sensitive personal data of children.
- The government should be addressing these alarms raised by the Central Information Commission, the RTI’s apex watchdog.
- Critics fear that if the Bill is passed as is, and the RTI Act is amended, it will deal a body blow to India’s hard-won right to information.
- Ushering in more transparency in the judiciary’s work, the Supreme Court gave its nod to live-streaming of court proceedings.
- The court held agreement with the recommendations submitted by Attorney General K K Venugopal regarding live-streaming.
- The judgment pointed out that the Supreme Court Rules, 2013, will have to suitably amended to provide for the regulatory framework to incorporate the changes.
Importance of the ruling
- Although courts in India are ordinarily open to all members of the public, sometimes they are denied the opportunity to witness the proceedings due to logistical issues and infrastructure restrictions.
- By providing ‘virtual’ access of live court proceedings to one and all, it will effectuate the right of access to justice or right to open justice and public trial
- It will also put to affect the right to know the developments of law and including the right of justice at the doorstep of the litigants.
- The court expected that this does not interfere with the administration of justice or the dignity and majesty of the court hearing the matter and/or impinge upon any rights of the litigants or witnesses.
Impact of Broadcasting
- It will reduce the public’s reliance on second-hand narratives to obtain information about important judgments of the court and the course of judicial hearings.
- Society will be able to view court proceedings first-hand and form reasoned and educated opinions about the functioning of courts.
- This will help reduce misinformation and misunderstanding about the judicial process.
Starting on Pilot basis
- As a pilot project, only cases of constitutional and national importance being argued for final hearing before the Constitution Bench are live-streamed initially, the court said.
- For this, permission of the court concerned will have to be sought in writing in advance.
- Consent of parties to the proceedings must be insisted upon, and if there is no unanimity between them, the court concerned can take the appropriate decision in the matter.
- The court concerned will also have the power to revoke permission at any stage of the proceedings.
- There must be a reasonable time-delay (say 10 minutes) between the live court proceedings and the broadcast.
- This is to ensure that any information which ought not to be shown, as directed by the court, can be edited from being broadcast.
- The judgment touched on the placement of cameras in the courtroom and reproduction, re-broadcasting, transmission, publication, re-publication, copying, storage and/or modification of any part(s) of the original broadcast of court proceedings, in any form, physical, digital or otherwise, must be prohibited.
- It will also attract prosecution.
- Cato Institute and Fraser Institute’s annual Economic Freedom of the World (EFW) report was released this week
- The EFW report notes that support for free markets has been dipping across the world from well before the financial crisis
- There is a strong correlation between economic freedom and well-being
Findings of the report
- The EFW report finds that “Nations in the top quartile of economic freedom had an average per capita GDP of $40,376 in 2016, compared to $5,649 for bottom quartile nations” in terms of purchasing power parity in constant 2011 US dollar terms
- In the top quartile, the average income of the poorest 10% was almost seven times the average income of the poorest 10% in the bottom quartile
- There is a gulf of almost two decades in life expectancy of the nations in the top and bottom quartiles
- Political and civil liberties and gender equality levels show similar divergence
India’s place in rankings dipping
- India’s overall ranking has dropped from 83 in 1990, when it stood on the cusp of liberalization, to 96 in 2016
- This is due to expansion in the number of countries the index looks at, as well as the progress made by them
- Judicial and law and order capacity continues to lag in India
- Labour market regulations also need to be reshaped
- India’s score has barely budged between 1990 and 2016 in index’s transfer and subsidies category
- On property rights, likewise—the backbone of a market economy—the scores indicate insufficient progress
Steps being taken to improve on these lacunae
- There is a trend towards direct benefits transfers which is making subsidy regimes more efficient
- National Land Records Modernization Programme, now part of the Digital India push, is a move in the right direction
- State governments are also doing considerable work, for example, Karnataka’s Bhoomi Project to Rajasthan’s Urban Land (Certification of Titles) Act, 2016
- Andhra Pradesh government’s push to use blockchain technology for preventing property fraud has perhaps the most potential of the lot
Progress made by India
- India has made appreciable progress on some fronts—from the government vacating space for the private sector in various industries to monetary policy with the Reserve Bank of India adopting an inflation-targeting regime in 2015
- By 2022, the number of Indians living in extreme poverty is expected to drop to 20 million
- India has underestimated the importance of free markets and the economic freedoms they underwrite
- A hard-nosed approach can be reductive, particularly in the context of a country like India
- An efficient government—one that draws down its intervention where it is distortionary and goes big where it needs to—is a better goal
- After six years of litigation, the Supreme Court’s five-judge Constitution Bench has given a landmark judgment declaring Aadhaar as constitutional
- SC has ruled that Aadhaar ensures the dignity of individuals and empowers marginalised section of the society
- The Court has held that Aadhaar’s architecture does not create a surveillance state
- It has gone on to say that “the Aadhaar Act meets the concept of limited government, good governance and constitutional trust”
Four important decisions
- First, it strikes down section 57 of the Aadhaar Act
- Section 57 was used by the government to compel private companies to demand Aadhaar verification for services
- The Court accepted the argument that no rationale exists for this power and declared it invalid
- Consequently, the Court has struck downlinking of Aadhaar with mobiles and bank accounts
- It has further directed that the data collected shall be deleted within six months
- Second, it transfers sovereignty and ownership of data back to the citizen to whom it belongs
- The Aadhaar law did not give ownership rights to the individual but to the Unique Identification Authority of India
- In case of a breach or misuse of his or her data, the individual had no legal remedy
- This has been rectified with citizens now having the right to file cases against the government in case of misuse or theft of their data
- Third, no citizen can be denied benefits if there is a failure of Aadhaar authentication
- Various citizens had been denied basic services as they did not have an Aadhaar number
- This will help citizens who were unable to get an Aadhar card, particularly the marginalised and underprivileged sections of the society
- Fourth and perhaps most important that the decision of the Speaker of the Lok Sabha on whether a Bill can be classified as a Money Bill can be subject to judicial review
- Prior to this landmark decision, the Speaker enjoyed almost complete immunity from judicial review
- The judgment would instil a fear in minds of lawmakers that taking the money bill route will no longer save them from the court’s scrutiny
Journey of Aadhar
- After more than six decades of Independence, 60 per cent of India’s 1.2 billion people did not have a basic identity document
- By and large local ID documents were used and they became unrecognisable when a person crossed the boundaries of his home state
- That was perhaps why a majority of the country’s population did not have a bank account
- Against this backdrop, a technologically complex identity programme then called the Unique Identification (UID) Programme, was launched
- In 2016, Parliament provided the legislative basis to Aadhaar by enacting the Aadhaar Act
Benefits of Aadhar
- Unscrupulous people had manipulated the system by creating ghost and duplicate entities and usurped the benefits intended for the poor
- It is well-known that only 15 paise of each rupee spent on welfare programmes reached the intended beneficiaries
- Aadhaar helped the government renovate the delivery system and ensure targeted, hassle-free, direct, portable, real-time, auditable delivery of services, benefits and subsidies, free of middlemen
- Aadhaar has led to the elimination of crores of ghost and duplicate ration cards and fake MGNREGS job cards & has checked frauds in pension payments and other government schemes including those that benefit students
- It will help to curb tax evasion, money laundering, shell companies and benami transactions and bring in financial discipline and greater tax compliance
- In the past three years, it has saved the government more than Rs 90,000 crore
- The World Bank’s Development Report on Digital Dividends 2016 estimated that the use of Aadhaar in all the Centre’s benefit and welfare schemes could save the government over US $11 billion annually by reducing leakage, and through efficiency-related gains
- Aadhaar will undoubtedly be a game changer for the poor and the country as a whole
- Every technology has some risks
- A mature society must take measures to mitigate risks and not abandon the technology
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