Review of Aadhaar (UIDAI) from Constitutional perspective

Dr. Ravishankar Mor, Asst. Prof., Dept. of Law, Yeshwant Mahavidyalaya, Wardha

Unique Identity number or Aadhaar is the talk of the town, everywhere in India now a days. Right from political circles in Delhi to the Court rooms of the Supreme Court to the common household in the remotest village, everywhere one can felt the presence of Aadhaar.

This UID (Unique Identification) was introduced as an ambitious project of the Government of India of creating National personal data bank in order to curb the illegal migration from neighboring countries and to prevent terrorist activities so also to provide universal identification document for all Indians.

In order to implement the project, Mr. Nandan Nilekani was appointed as its Chairman, Unique Identification Authority of India (UIDAI), a post given equivalence with the rank of a Cabinet Minister. Till date almost 50,000 Crore rupees have been spent on the project and UIDAI has promised that by the end of this year approximate 50% Indians will have their Unique Identity or Aadhaar.

From very beginning controversies surrounded this project, compulsion of giving retina print and finger prints were objected by the people saying it is violative of the personal liberty, to which Government took stand that Aadhaar is not Compulsory but voluntary. Again controversy mars the project when a Union Minister publicly claims that, it is not the card but the Number is important and So long as One can remember its UID number he can torn up the Card. To this Government keep meaningful silence and allow carrying forward the project.  All these controversies were yet to settle, when in order to take political mileage, Government decides to link the subsidies and benefits to Aadhaar Identity number and as a pilot project decide to implement the scheme from Wardha, in Maharashtra, incidentally author of this article is also from the same place.

Meanwhile the bill of 2010, which was aimed to give statutory authority to entire project could not be passed in the parliament and therefore entire scheme was functioning under the executive direction of the Government only.

Then come up biggest issue when Ret. Justice Shri Puttuswamy filed PIL against the compulsion of Aadhaar for availing welfare schemes benefit, the matter is subjudice and by way of interim order on 23^rd Sept. 2013 ((Review petition was filed by the Government against the interim order which is heard and decided by the Hon’ble court on 8^th Oct. 2013, wherein court has not granted any relief to the Government and the order of 23^rd Sept. is still good and valid)), Hon’ble Supreme Court has made it clear that such compulsion is violative of fundamental rights of the people and citizens under Article 14, 19 and 21 of the constitution.

As the copy of courts order is not available either on internet and the author does not have the access to the same, let’s examine how Compulsion of having Aadhaar Card for availing benefits under welfare schemes runs contrary to the constitutional rights.

Constitution specifically prohibits discrimination or unreasonable classification under Article 14, 15 and 16. This prohibition is nothing but a kind of restriction on the powers of the state in causing any discrimination amongst the beneficiaries of the welfare schemes, no doubt positive discrimination in the form of reservations and classifications which passed the test laid down by the court in Ram Krishna Dalmia Vs Justice S.R. Tendulkar (([1959] 1 SCR 279)), that for upholding the classification under Article 14 of the Constitution, twin test must be satisfied,

(i)     every classification must be founded on intelligible differentia i.e. it must distinguish those that are grouped together from the rest; and

(ii)   such classification or differentia must have a relation or nexus to the object sought to be achieved thereby.

Classification is permissible but denial of benefits only because someone does not possess Aadhaar Card does not fit into the law of reasoned classification. Thus, creation of a class on the basis of those possessing Aadhaar card and those not possessing the same does not stand the scrutiny of law under Article 14 of the constitution.

Moreover the data sought for in the process for getting Aadhaar Card is still in debate and by an ordinary interpretation seems to violate right to privacy of the individual, a card which compels the applicant to disclose the personal details like eye retina scan or figure print scan contrary to the constitutional fundamental rights of the citizen cannot be an essential element for getting benefits under schemes maintained out of public funds and administered by the state.

No doubt fundamental rights are not absolute and reasonable restriction can be imposed in the larger interest of the society and other grounds provided under the chapter of fundamental rights itself, but it is a settled law that fundamental rights can be restricted reasonably only be a law of the parliament and not by a mere executive order. In case of Aadhaar it is only executive order and not the law of the parliament is the source and force behind the scheme, restricting fundamental rights by such an order simply runs contrary to the constitutional mandates and therefore bad in the eyes of law.

Even going further, if a law is passed in the parliament conferring legal status to entire scheme, it would be for the court to decide whether Aadhaar can be made compulsory as this amount creation of a class and this can be tested by the judiciary as what is the object to be achieved by this classification and the nexus with the manner through which this  objective is attempted to be achieve.

Following arguments are raised against making Aadhaar compulsory:

1. Not more than 50 percent population of India is provided with Aadhaar Card till date, with only 50 percent population, making compulsion of the Aadhaar card seems to be an hurried action, the districts where scheme is introduced as pilot project does not have 100 percent population with Aadhaar Card, this indicates at least 10-15 percent beneficiaries are left without benefits for failure to comply with executive direction.
2. All these Aadhaar cards are to be attached with a bank account, data reveals that not more that 25 to 30 percent population of India are having bank accounts, if this number is to be doubled or tripled whether Banks are prepared for the same, infrastructure and manpower etc. Long queues can be seen in front of banks now days anywhere in India for opening accounts and attaching Aadhaar.
3. Whether adequate grievance redressal mechanism is established to handle the complaints, if any, regarding non deposit of benefits and other causes.
4. Taken into consideration the socio-economic scenario in India, like people living below poverty line, rate of literacy in India, access to banks in rural areas, will it be feasible to compel everyone to have Bank account attached to the Aadhaar?
5. This scheme of Aadhaar enabled direct benefit transfer is supported with the argument that “If center allocate One Rupee in welfare scheme only 10 Paisa reaches the actual beneficiary” whose fault it is? If there is a widespread corruption in government offices and amongst babus, obviously government is to be blamed. For governments inability to check the corruption innocent sometime illiterate beneficiaries are put in hardship of Aadhaar and operating bank accounts.
6. Another issue comes in picture while discussing Aadhaar as effective tool for curbing the middlemen between Government and beneficiaries, why not such scheme is firstly introduced in collection of taxes, wherein lot of taxes are being collected but drained out in the system and only a portion is actually reached with the exchequers? At least in collection of VAT or sales tax why not payment is compelled through debit/credit cards in the sellers account attached with particular Tax Account No., so that government taxes are automatically remitted to the Government. At least product above a standard value say 15,000 or 20,000 can be made compulsory in the first instance in this direction. So allowing lacs and crores of rupees paid by the buyer in the name of taxes to be pocketed by the seller but will not allow 500 Rs subsidy on gas cylinder to be pocketed by the dealer?  Fact is this, that after restriction of number of cylinders to be supplied on one connection, and thorough physical verification of address of the connection holder hardly any room is left for the dealer to make bogus entries. So allowing corruption and drainage on one hand and pulling strings on the other where they are not much warranted.
7. Moreover in the absence of any law supporting the scheme is laid down, entire scheme seems to be a big fiasco and without substance.

Hope Government will come up with substantial law to justify the compulsion of Aadhaar and refrain from unnecessarily encroaching upon the fundamental rights of the individuals, not only for distribution of the benefits and subsidies but also for collection of taxes which are honestly paid by the end user of the products or services.

It is the constitutional responsibility of the judiciary to protect the fundamental rights of the individual with all vigor and strength, judiciary has done so in the past, also in the matters of Aadhaar interim order has been passed and Government is directed not to make Aadhaar compulsory. Judiciary is working hard so also, we the people must not allow any government to curb the fundamental rights and devalue the constitution of India.

References

• Times of India last visited on  11.10.13 at 8 pm.
• Times of India last visited on 10.10.13 at 9 am.
• Times of India last visited on 12.10.13 at 10 am
• UDAI
• The National Identification Authority of India Bill, 2010
• Mor, R.K., Right to Information in India, 2011, Lambart Academic Publication, Germany.

Aadhaaraadhaar linking bank accountArticle 14Article 21Implementation of AadhaarJustice Shri PuttuswamyNandan NilekaniPIL against Aadhaarright to privacySubsidy through aadhaarThe National Identification Authority of India BillUIDAIUnique Identity number