Making available private information indicates the state is seeing people as adversaries whose actions need to be monitored.
16-03-2016
Added to the questionable parliamentary tactics of the government to bring the contentious Aadhar Bill in Rajya Sabha on a token basis on the last day of the first session of Budget session, the legislation raises concerns about the Modi sarkar's brazen style of creating a powerful infrastructure of surveillance which is probably unparalleled in its capacity in any democratic country.
This entire chapter of misuse of executive powers to circumvent legislative excesses has two dimensions. Firstly, the urgency displayed by the government to pass the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 is reminiscent of the anxiety displayed last year when the government, Prime Minister Narendra Modi downward, projected the Land Acquisition Bill as the most integral component of driving India's growth. Because the Opposition blocked the Bill, it was accused of blocking India's development.
Eventually Modi realised that he had wrongly raised the stakes on the Bill because there were words of caution from within his own political Parivar. This time there has been no such signal from the Parivar and the hurry to pass the Aadhar Bill was evident in the fact that it was tabled in Lok Sabha on March 3 and passed by voice vote after just a brief debate on March 11.
Secondly, by arguing that the Aadhar Bill formed the basis of delivery of subsidies and benefits for the people, the government decided to convert the Bill into a Money Bill and thereby subverted the Rajya Sabha and the Bicameral system unanimously accepted by Indian Constitution makers. Because it only remotely adheres to the criteria laid under Article 110 of the Constitution for introducing it as Money Bill, the government's decision raises questions about the real intent of the Bill.
Is it to just "provide for targeted delivery of subsidies and services to individuals residing in India by assigning them unique identity numbers" as specified in the statement of purpose or does the move of the government need to be seen in the backdrop of rising levels of disapprovals towards any form of dissent in any sphere? Last May when the government completed one year in office, this writer was not alone in his views that dissent had become more risky in India under Modi.
The idea of Aadhar card and the creation of Unique Identification Authority of India had been cause for concern among civil society groups and some political parties even when the UPA government first conceived of it. Justice K S Puttaswamy, retired justice of the Karnataka High Court, went to court arguing that "Aadhaar infringes on our fundamental right to privacy."
In August 2015, the Supreme Court ruled that the Aadhaar number shall remain optional for welfare schemes. It added that no one should be denied any benefit because they did not have an Aadhaar number, barring a few specified services. This case is still ongoing in the apex court. This order was modified in October and an expanded bench ruled that linking of "Aadhaar for providing these services will only be on voluntary basis and no person shall be deprived of any benefit," if they did not have one.
Modi sarkar's Aadhar Bill, certain to be sent in just a shade more than a fortnight to the president for approval, does not follow the ruling of the Supreme Court. This will naturally open the Bill to scrutiny because the matter is sub judice. This will result in a possible petition which may be filed by eminent citizens, rights' groups or other concerned individuals, questioning the extent of discretion that the speaker may use while deciding which Bill can be treated as Money Bill and which cannot be.
Already opposition parties have argued that the speaker's decision must conform to the constitutional provisions and if it does not, this would imply that the decision per se violates the Constitution. In any case, on several occasions it has been pointed out that the speaker's office is acting more as a convenient tool to enable the government deal with an alienated Opposition. The speaker, despite belonging to a political party is expected to rise above partisan politics after assuming office and impartiality of the office must be ensured.
Clauses 7 and 57 of the Aadhar Bill are major points of concern. These make it mandatory for citizens to provide Aadhar details if s(he) wishes to avail certain "subsidies, benefits or services". The relevant clauses also lay down that "any public or private person may use the Aadhaar number for establishing the identity of any individual for any purpose." In simple terms this means - as stated in a paperprepared by highly respected PRS Legislative Research - that this provision "will enable private entities such as, airline, telecom, insurance, real estate etc. companies, to require Aadhaar as a proof of identity for availing their services."
This means that the directive of the Supreme Court that Aadhar card or number should not become mandatory is being violated.
The Aadhar Bill now passed by Lok Sabha does not declare it compulsory to have an Aadhar card, but de facto the situation is being created where a person will be forced (they are already doing so) to share her/his biometric details - this includes fingerprint and iris scan - with the UIDAI - if they are to live in peace and avail even basic services which are their rights guaranteed under the Constitution.
Another matter of worry is that the new Aadhar Bill gives the power to UID Authority the right to share information - about anyone who is enrolled - "in the interest of national security, or on the orders of a court." The problem with particular clause is because what constitutes "national security" is not specified and empowers government to use subjective discretion, it will open the doors to what Jean Dreze has argued "mass surveillance".
Moreover, the apex court is already examining in Justice Puttaswamy's plea if abuse of privacy is violation of our Fundamental Rights as enshrined in the Constitution.
The question now arises is whether the government is using the smokescreen of national security and creating a system to keep citizens on watch? Arising from this is a worrying question – will such information – travels details, phone records, and other sundry personal details – be available at the click of a mouse in a centralised structure and will this used constantly? Because the Aadhar Bill has the potential to secure further and more private information, an extensive behavioural pattern of citizens will be available to the government and through it to chosen private parties.
Making available private information about citizens indicates that the State is increasingly seeing them as adversaries whose actions need to be monitored. This goes against the basic system of jurisprudence which lays down that a person must be considered innocent till proven guilty. Citizens can be subjected to scrutiny only after prima facie evidence.
Already, after realising that claims notwithstanding those who are not opting for the much publicised give-it-up scheme and forsake LPG subsidy, customers are being sent SMS messages to declare it their income is less than rupees ten lakh or not. Only those who have incomes below this will be eligible for subsidised LPG. In no society will people want their financial worth to be displayed on publicly available databases. Because cyber security is still evolving and awareness levels are low, such information will only make citizens more vulnerable.
It may be an over-reaction to say that with this move, Modi sarkar has taken a step towards establishing an authoritarian regime. But if safeguards are not put in place and the government does not convince people, such fears will be natural and will only gain currency.
