21/06/2016 8:29 AM IST |
Advocate, New Delhi
GETTY vector illustration Fingerprint unlock smart phone
India has one of the longest Constitutions in the World. Dr. Ambedkar explained the reasons for its length by referring to the principle of "constitutional morality". In his speech in the Constituent Assembly delivered on 4 November, 1948, he said:
"[T]he form of the administration must be appropriate to and in the same sense as the form of the Constitution... [It] is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them.... Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it."
He further explained that the Indian Constitution lays down various facets of administration in greater detail as a way to pre-empt any perversion or subversion of the Constitution's meaning.
[T]he government has introduced an "unconstitutional condition" which involves barter of privacy rights in order to secure benefits that the State is obliged to provide anyway...
However, I believe that both the previous and present governments are guilty of subverting the Constitution -- substantively and procedurally -- in the context of the Aadhaar and Unique Identification (UID) projects.
The administration of the UID Project is nothing if not opaque. Personal information is collected from residents without clearly informing them about the repercussions, and without a data protection law in place. The Aadhaar card is being "marketed" as another proof of identity, without adequately disclosing that its use may result in perpetual mass digital surveillance, with no option to exit. What is worse is that there is no disclosure of the possible commercial use of the data collected.
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Further, by making financial disbursements in social schemes contingent upon the possession of the Aadhaar 'card' and Aadhaar-linked bank accounts, the government has introduced an "unconstitutional condition" which involves barter of privacy rights in order to secure benefits that the State is obliged to provide anyway - even if the person in question is homeless or legally nondescript. What is worse is that there is no legislative authorization to compulsorily collect personal data which renders a person subject to the vagaries of unbridled executive power.
The UID Project, introduced initially for the border districts of the country, was extended to cover all of India by the previous UPA government -- without first fully understanding and explaining its implications. The project was rejected in 2011 by the 42nd Parliamentary Standing Committee on Finance chaired by Sri Yashwant Sinha, a former finance minister belonging to the BJP, who stated that "Unique Identification (UID) Scheme is riddled with serious lacunae and concern..." This rejection was re-asserted by subsequent committees as well.
Despite the stay granted by the Supreme Court, governments and their instrumentalities have used soft-force to universalize the UID Project.
At the time when the 42nd Parliamentary Standing Committee on Finance was considering Aadhaar, the UID Bill was pending in Parliament, having been craftily introduced by the UPA government in the Rajya Sabha so that it did not lapse and remained unaffected by political turbulence.
Activists, academicians and scholars had then objected to the collection of personal data of individuals without being first authorized by a valid law enacted by Parliament. It was pointed out to the then UPA government that it was impermissible to proceed with the execution of the Aadhaar Project while a Bill to authorize the same was pending before the Parliament. However, the then attorney general had opined (and incorrectly so, in my view) that the executive powers of the government permit it to go ahead. In his words:
"...the present Bill being implemented without Parliaments' approval does not set a bad precedent in the Parliamentary form of Government. On the contrary, the fact that the Authority is sought to be converted from an Executive Authority to a statutory authority, it underlines the supremacy of Parliament."
The Parliamentary Standing Committee on Finance had concluded:
"The Committee is constrained to point out that in the instant case, since the law making is underway with the bill being pending, any executive action is as unethical and violative of Parliament's prerogative as promulgation of an ordinance while one of the Houses of Parliament being in session."
Earlier, during the UPA government's tenure, the BJP and its ideologues had openly and fervently opposed the idea of a Unique Identity Card. But when the BJP came to power, it changed its tune. Prime Minister Modi's government proselytized its purported usefulness and capabilities, and was quick to adopt the UID Project. Similarly, while it criticized the UPA government rather theatrically for MGNREGA which also utilized the Aadhaar based platform, the BJP government went on to embrace it later. The Prime Minister's Jan Dhan Yojana and other such schemes aimed to utilize the Aadhaar platform as well.
In my view, it is unconscionable for any government in the contemporary world to contend that privacy is not a fundamental right.
Despite the stay granted by the Supreme Court, governments and their instrumentalities have used soft-force to universalize the UID Project. It appears that the extent to which the present government has gone to defend the UID Project surpasses the methods deployed by the previous regime to promote it. Before the Supreme Court last year, in order to justify the UID Project and repel the ground of "invasion of privacy", the government contended that it is not a settled position in India that the right to privacy is a fundamental right guaranteed under the Constitution. It was further argued that in the present times when a person could be tracked down with his cell phone, it was futile to contend that use of Aadhaar card would leave a trail that would allow perpetual surveillance.
In my view, it is unconscionable for any government in the contemporary world to contend that privacy is not a fundamental right. In doing so and in being able to send the Aadhaar case in the Supreme Court before a larger bench to decide whether privacy is a fundamental right in India, the present-day government has pushed our democracy back in time. The sheet anchor for the UPA as well as the BJP government has been the argument that by means of Aadhaar they have been able to eliminate a large number of "ghost beneficiaries" and save government money. There is, however, no means to independently verify the statistics so presented. This is most important because statistics have a sincere tendency to obfuscate.
Aadhaar and its implementation... [establish] that "Constitutional morality is not a natural sentiment... and our people have yet to learn it."
Way back in 2011, the Ministry of Planning had taken a categorical stand before the Standing Committee on Finance that "no Committee has been set up to study the financial implications of the UID scheme. As per laid down guidelines/procedure the Expenditure Finance Committee reviews project proposals and its financial implications..."
The manner in which the previous and present governments have dealt with the Constitutional checks in the implementation of the UID Project is far from satisfactory. Aadhaar and its implementation are a classic case study of political opportunism and perversion of both letter and spirit of the Constitution. It establishes, in the words of Dr. Ambedkar that "Constitutional morality is not a natural sentiment... and our people have yet to learn it."
