13163 - Tip of the Suckerberg - Outlook India

https://www.outlookindia.com/magazine/story/tip-of-the-suckerberg/299966

09 APRIL 2018BUSINESSBLACK MIRROR
Tip Of The Suckerberg
Cambridge Analytica is a warning sign. And Indians are at risk: the country has no data protection law.

ARINDAM MUKHERJEE

ILLUSTRATION BY SAJITH KUMAR

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Psychographics

• Qualitative methodology to describe consumers’ psychological attributes.

• Psychographic profile: profiles ­interests, activities, opinions, lifestyle.

• Does this by looking at consumer behaviour, preferences, web surfing patterns, call records and purchases

• All this is used to classify people.

• Companies use profiles for targeted sales and marketing campaigns.

• Trump presidential campaign used this to ­influence voters.

***

The revelation that Facebook had allowed personal infor­mation from 50 million user ­acc­ounts in the US to be used by British data analytics company Cambridge Analytica shook the world. It took a toll on the stock prices of many companies including Facebook, whose value tanked significantly, and cre­ated a trust deficit in social ­media worldwide. Facebook founder Mark Zuckerberg will face the US Congress next week to answer que­stions about how his social media beh­emoth ­has been sharing the confidential inf­ormation of its ­users for profit.

In India, this has led to a bitter debate and mudslinging between the BJP and the Congress over the latter employing the services of Cambridge Analytica to influence elections. While the slugfest between the two big parties ­continues, this has led to a larger question: how safe is ­personal information and data in the hands of social media companies such as Facebook and WhatsApp? Indians routinely open up their hearts on these sites to share ­information about themselves and their families—do the sites then sell this data to others to man­ipulate buying and, well, voting?

The Facebook problem began in 2014 when a Cambridge researcher, Alexander Kogan, developed an app with a personality quiz called “This is your Digital Life”, which was put up on Facebook. Through this, he collected data from 270,000 users. This then gave him access to data from those users’ friends, and ­ultimately he was able to harvest the data of 50 million people. All this was then given to Cambridge Analytica, who used it to influence Donald Trump’s US Presidential election campaign. The issue here for India is that whistleblower Christopher Wylie, who revealed the nexus between Cambridge Analytica and Facebook, also said that the data analytics company had worked in India with the Congress party. This brings up privacy issues relating to personal data in India and the ability of social media companies to ­potentially misuse such data.

What is of concern is that India currently lacks privacy protection laws and everything is out in the open for firms to misuse. Personal information and data are routinely sold by social media companies, credit card companies and telecom operators. The government has set up a committee led by Justice (retd) B.N. Srikrishna to look into privacy issues; this comm­itee has prepared a draft report but is yet to submit its final report. At the mom­ent, Section 43A of the IT Act and associated rules serve as India’s primary data protection provisions. Given that Facebook is a foreign company, the app­licablity of these provisions to the social media giant is unclear. Says Usha Ramanathan, privacy activist and legal expert, “Most people do not understand the nature of privacy policy. So they sign on everything when signing on to a ­social media app or website. As a result, personal data and information are sold and the user has ­become the product. You are the one being sold and so the service is free. We do not realise that, from being a consumer, we ourselves have become the product for these ­social media sites. Their business is only about using our data.”

Ramanathan explains that a high level of manipulation of data and information takes place through the social media sites, who not only make use of it themselves but also aggregate the data and sell it to others. “When the systems know you even better than you yourself, manipulation becomes inevitable. That is the tragedy of ­technology,” she says.

Amber Sinha, cyber analyst and senior programme manager at the Centre for Internet and Society (CIS) feels that there is a need to look at the various kinds of data one shares while engaging with a social media platform such as Facebook—volunteered data  (data that is ­actively provided by individuals, such as details in a form when they sign up for a service), observed data (behavioural data generated through an individual’s use of the service), and inferred data (which is neither actively nor passively provided by the individual, but arrived at through the analysis of ­collected data).

While individuals are aware of the first category, they are often unable to exercise meaningful control over the second, as it is continually and automatically collected. Observed data also includes the collection of data from other online behaviour of the individual through various tracking tools which are dep­loyed on the browser. 

Further, the third category is often outside the scope of regulation, as it is not directly collected from the user but is inf­erred by the controller based on other data collected. This loophole must be closed by regulation to cover data use as well as collection practices.

Just as there is no privacy for personal data, there is also no privacy for our ­onl­ine activity, which is con­­s­tantly mon­itored by companies such as Facebook and Google. Says K.K. Mookhey, founder and CEO at Global Cyber Security Service Pro­vider, Network Intelligence, “The Facebook model is inh­erently pro­­b­lematic. You and I are the producers and consumers of the content provided by companies like Facebook. Facebook tunes the content according to our habits. What we see on Facebook is according to our choices and general surfing habits. It tracks our general surfing habits on non-Facebook sites, analyses our online behaviour, and then tweaks our content accordingly on Facebook. This is gro­ss manipulation which is automated through algorithms.”

With the data in hand, marketers can choose specific parameters to provide content and do micro-targeting. Cam­bridge Analytica did psychogra­phical mapping of the preferences of voters in the US elections using this kind of data. The company started by looking at und­ecided voters, and kept pushing them tow­ards the Republican Party. According to Elonnai Hickok, COO with CIS, “Personalisation of ­content, be it advertising, news, a product on Amazon or your Facebook feed is a practice that is being used across the board. Per­­­­s­­o­n­alisation happens through algorithms and the data you feed into it. No alg­orithm is perfect and it is possible for manipulation to happen intrinsically. Manipulation of the type that has been attributed to Cam­bridge Analytica is an extension of personalising a message to influence, not buying habits, but larger choices.” Adds Sivarama Krishnan, leader, Cyber Security, with PwC, “There is a clear case of privacy violation from a principle standpoint. It is not a legal violation as users have signed up to it voluntarily. They are manipulating the behaviour of the user by suggesting ­options according to a user’s behaviour and surfing habits. This is what Cambridge Analytica has done. This is a big challenge.”

The public perception of all this is, however, quite different, and most people want their data to be secure. According to a survey done by ­online analytics company Local Circles, 86 per cent of people in a sample survey wanted a law that protected their ­private information and 84 per cent did not want their bank transaction details to be ­accessible after the linkage of Aadhaar and bank acc­ounts, while 75 per cent did not want their call records to be acc­essible after similar linkages. A who­pping 94 per cent wanted companies, particularly banks and telecoms operators, to face a penalty if information is leaked. Says Hic­kok, “Selling of data that allows for personalisation is one of the primary business drivers. Though Facebook all­ows for controlling who sees the data, the company itself has given access to the information as per its business needs. The selling of data does happen around the world on a routine basis. It is important that privacy regulation place a framework around how data can be collected and used, and the redress that individuals can seek if their privacy is violated.”

There is no doubt that there is gross vio­lation of privacy as social media ­companies use and manipulate content for users in order to mould the latter in a particular manner for the sake of ­business. While the European Union is ready to ­introduce the General Data Protection Regulations (GDPR) to ­protect personal information and data from May, India is still a long way from reaching this stage and does not have any legal way at all to safeguard personal data. The country needs to develop GDPR-like rules to  protect its citizens. Until that happens, Big Brothers like Facebook will continue to watch you and will continue to mine Big Data.

12486 - Should Aadhaar be mandatory? - Deccan herald

Should Aadhaar be mandatory?

Amber Sinha Dec 9 2017, 23:47 IST

Should Aadhaar be mandatory?

This week, a constitutional bench of the Supreme Court will adjudicate on limited questions of stay orders in the Aadhaar case. After numerous attempts by the petitioners in the Aadhaar case, the court has agreed to hear this matter, just shy of the looming deadline of December 31 for the linking of Aadhaar numbers to avail government services and benefits. Getting their day in the court to hear interim matters is but a small victory in what has been a long and frustrating fight for the petitioners. In 2012, Justice K S Puttaswamy, a former Karnataka High Court judge, filed a petition before the Supreme Court questioning the validity of the Aadhaar project due its lack of legislative basis (the Aadhaar Act was passed by Parliament in 2016) and its transgressions on our fundamental rights.

Over time, a number of other petitions also made their way to the apex court challenging different aspects of the Aadhaar project. Since then, five different interim orders of the Supreme Court have stated that no person should suffer because they do not have an Aadhaar number.

Aadhaar, according to the Supreme Court, could not be made mandatory to avail benefits and services from government schemes. Further, the court has limited the use of Aadhaar to only specific schemes, namely LPG, PDS, MNREGA, National Social Assistance Program, the Pradhan Mantri Jan Dhan Yojna and EPFO.

The then Attorney General, Mukul Rohatgi, in a hearing before the court in July 2015 stated that there is no constitutionally guaranteed right to privacy. But the judgement by the nine-judge bench earlier this year was an emphatic endorsement of the constitutional right to privacy.

In the course of a 547-page judgement, the bench affirmed the fundamental nature of the right to privacy, reading it into the values of dignity and liberty.

Yet months after the judgement, the Supreme Court has failed to hear arguments in the Aadhaar matter. The reference to a larger bench and subsequent deferrals have since delayed the entire matter, even as the government has moved to make Aadhaar mandatory for a number of government schemes.

At this point, up to 140 government services have made linking with Aadhaar mandatory to avail these services. Chief Justice of India Dipak Misra has promised a constitution bench this week, likely to look only into interim matters of stay on the deadline of Aadhaar-linking. It is likely that the hearings for the final arguments are still some months away. 

The refusal of the court to adjudicate on this issue has been extremely disappointing, and a grave disservice to the court's intended role as the champion of individual rights.

It is worth noting that the interim orders by the Supreme Court that no person should suffer because they do not have an Aadhaar number, and limiting its use only to specified schemes, still stand.

However, since the passage of the Aadhaar Act, which allows the use of Aadhaar by both private and public parties, permits making it mandatory for availing any benefits, subsidies and services funded by the Consolidated Fund of India, the spate of services for which Aadhaar has been made mandatory suggests that as per the government, the Aadhaar Act has, in effect, nullified the orders by the Supreme Court.

This was stated in so many words by Union Law Minister Ravi Shankar Prasad in the Rajya Sabha in April. This view is an erroneous one. While acts of Parliament can supersede previous judicial orders, they must do so either through an express statement in the objects of the Act, or implied when the two are mutually incompatible. In this case, the Aadhaar Act, while permitting the government authorities to make Aadhaar mandatory, does not impose a clear duty to do so.

Therefore, reading the orders and the legislation together leads one to the conclusion that all instances of Aadhaar being made mandatory under the Aadhaar Act are void.

The question may be more complicated for cases where Aadhaar has been made mandatory through other legislations, such as Prevention of Money Laundering Act, as they clearly mandate the linking of Aadhaar numbers, rather than merely allowing it. However, despite repeated appeals of the petitioners, the court has so far refused to engage with the question of the legality of such instances.  

How may the issues finally be resolved? When the court deigns to hear final arguments, the Aadhaar case will be instructive in how the court defines the contours of the right to privacy. The right to privacy judgement, while instructive in its exposition of the different aspects of privacy, does not delve deeply into the question of what may be legitimate limitations on this right.

In one of the passages of the judgement, "ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients" is mentioned as an example of a legitimate incursion into the right to privacy. However, it must be remembered that none of the opinions in the privacy judgement were majority judgements.

Therefore, in future cases, lawyers and judges must parse through the various opinions to arrive at an understanding of the majority opinion, supported by five or more judges. While the privacy judgement was a landmark one, its actual impact on the rights discourse and on matters like Aadhaar will depend extensively on the how the judges choose to interpret it.

(Amber Sinha is a lawyer and works at the Centre for Internet and Society)

11219 - Govt may have made 135 million Aadhaar numbers public: CIS report - Live Mint

Last Modified: Tue, May 02 2017. 04 43 AM IST

Govt may have made 135 million Aadhaar numbers public: CIS report

CIS report says Aadhaar numbers leaked through government databases could be 100-135 million and bank accounts numbers leaked about 100 million
Komal Gupta

The report claims these government dashboards and databases revealed personally identifiable information (PII) due to lack of proper controls exercised by the departments. Photo: Pradeep Gaur/Mint

A central government ministry and a state government may have made public up to 135 million Aadhaar numbers, according to a research report issued by Bengaluru-based think tank Centre for Internet and Society (CIS) late on Monday.

The report titled Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar numbers with sensitive personal financial information studied four government databases.

The first two belong to the rural development ministry—the National Social Assistance Programme (NSAP)’s dashboard and the National Rural Employment Guarantee Act’s (NREGA) portal.

The other two databases deal with Andhra Pradesh—the state’s own NREGA portal and the online dashboard of a government scheme called “Chandranna Bima”.

“Based on the numbers available on the websites looked at, the estimated number of Aadhaar numbers leaked through these four portals could be around 130-135 million and the number of bank account numbers leaked at around 100 million from the specific portals we looked at,” said Amber Sinha and Srinivas Kodali, the authors of the research report.

The report claims these government dashboards and databases revealed personally identifiable information (PII) due to a lack of proper controls exercised by the departments.

“While the availability of aggregate information on the Dashboard may play a role in making government functioning more transparent, the fact that granular details about individuals including sensitive PII such as Aadhaar number, caste, religion, address, photographs and financial information are only a few clicks away suggest how poorly conceived these initiatives are,” said the report.

The report said the NSAP portal lists 94,32,605 bank accounts and 14,98,919 post office accounts linked with Aadhaar.

“While the UIDAI (Unique Identification Authority of India) has been involved in proactively pushing for other databases to get seeded with Aadhaar numbers, they take little responsibility in ensuring the security and privacy of such data,” said the report.

UIDAI did not respond to an email from Mint seeking comments.

Komal Gupta

10856 - Can the Judiciary Upturn the Lok Sabha Speaker’s Decision on Aadhaar? - The Wire

Can the Judiciary Upturn the Lok Sabha Speaker’s Decision on Aadhaar?

BY AMBER SINHA ON 21/02/2017 • 1 COMMENT

When ruling on the petition filed by Jairam Ramesh challenging passing the Aadhaar Act as a money Bill, the court has differing precedents to look at.

Jairam Ramesh (L) has said Lok Sabha speaker Sumitra Mahajan’s decision to pass the Aadhaar Act as a money Bill is unconstitutional. It remains to be seen what the court will say. Credit: PTI

In an earlier article, I had argued that the characterisation of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, as a money Bill by Sumitra Mahajan, speaker of the Lok Sabha, was erroneous. 

Specifically, I had argued that upon perusal of Article 110 (1) of the constitution, the Aadhaar Act does not satisfy the conditions required of a money Bill. For a legislation to be classified as a money Bill, it must comprise of ‘only’ provisions dealing with the following matters: (a) imposition, regulation and abolition of any tax, (b) borrowing or other financial obligations of the government of India, (c) custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of India, (d) appropriation of money out of CFI, (e) expenditure charged on the CFI or (f) receipt or custody or audit of money into CFI or public account of India; or (g) any matter incidental to any of the matters specified in sub-clauses (a) to (f).

Article 110 is modelled on Section 1(2) of the UK’s Parliament Act, 1911, which also defines money Bills as those only dealing with certain enumerated matters. The use of the word ‘only’ was brought up by Ghanshyam Singh Gupta during the constituent assembly debates. He pointed out that the use of the word ‘only’ limits the scope money Bills to only those legislations which did not deal with other matters. His amendment to delete the word ‘only’ was rejected, clearly establishing the intent of the framers of the constitution to keep the ambit of money Bills extremely narrow. G.V. Mavalankar, the first speaker of Lok Sabha, had stated that the word ‘only’ must not be construed so as to give an overly restrictive meaning. For instance, a Bill which deals with taxation could have provisions which deal with the administration of the tax. The finance minister, Arun Jaitley, referred to these words by Mavalankar, justifying the classification of the Aadhaar Act as a money Bill.

While the Aadhaar Bill does makes references to benefits, subsidies and services funded by the CFI, even a cursory reading of the Bill reveals its main objectives as creating a right to obtain a unique identification number and providing for a statutory apparatus to regulate the entire process. Any reasonable reading of the legislation would be hard pressed to view all provisions in the Aadhaar Act, aside from the one creating a charge on the CFI, as merely administrative provisions incidental to the creation such charge. The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies funded by the CFI does not give it the character of a money Bill. The Bill merely speaks of facilitating access to unspecified subsidies and benefits rather than their creation and provision being the primary object of the legislation. Erskine May’s seminal textbook, Parliamentary Practice, is instructive in this respect and makes it clear that a legislation which simply makes a charge on the consolidated fund does not becomes a money Bill if otherwise its character is not that of one. Further, the subordinate regulations notified under the Aadhaar Act deal almost entirely with matters to do with enrolment, updation, authentication of the Aadhaar number and related matters such as data security regulations and sharing of information collected, rather than the provision of benefits or subsidies or disbursal of funds otherwise from the CFI.

However, in the context of the petition filed by former Union minister Jairam Ramesh challenging the passage of the law on Aadhaar as a money Bill, the more important question is whether the judiciary has a right to question the speaker’s decision in such a matter. If not, any other questions about whether the legislation is a money Bill will remain merely academic in nature.

Irregularity vs illegality

Article 110 (3) clearly states that with regard to the question whether a legislation is a money Bill or not, the decision of the speaker is final and binding. The question is whether such a clause completely excludes any judicial review. Further, Article 122 prohibits the courts from questioning the validity of any proceedings in parliament on the ground of any alleged irregularity of procedure.

During the arguments in the court, the attorney general questioned the locus standi of Ramesh. The petition has been made under Article 32 of the constitution and the government argued that no fundamental rights of Ramesh were violated. However, the court has asked Ramesh to make his submission and adjourned the hearing to July. The petition by Ramesh would hinge largely on the powers of the judiciary to question the decision of the speaker of the Lok Sabha.

The powers of privilege that parliamentarians enjoy are integral to the principle of separation of powers. The rationale behind parliamentary privilege is to prevent interference in the lawmakers’ powers to perform essential functions. The ability to speak and vote inside the legislature without the fear of punishment is certainly essential to the role of a lawmaker. However, the extent of this protection lies at the centre of this discussion. During the constituent assembly debates, H.V. Kamath and others had argued for a schedule to exhaustively codify the existing privileges. However, B.R. Ambedkar pointed to the difficulty of doing so and parliamentary privilege on the lines of the British parliamentary practice was retained in the constitution. In the last few decades, a judicial position has emerged that courts could exercise a limited degree of scrutiny over privileges, as they are primarily responsible for interpreting the constitution.

In the matter of Raja Ram Pal vs The Hon’ble Speaker, Lok Sabha, it had been clarified that proceedings of the legislature were immune from questioning by courts in the case of procedural irregularity but not in the case of illegality. In this case, the Supreme Court while dealing with Article 122 stated that it does not oust review by the judiciary in cases of “gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.”

In 1968, the speaker of the Punjab legislative assembly adjourned the proceedings for a period of two months following rowdy behaviour. Subsequently, an ordinance preventing such a suspension was promulgated and the legislature was summoned by the governor to consider some expedient financial matters. The speaker disagreed with the decision and after some confusion, the deputy speaker passed a few Bills as money Bills. While looking into the question of what was protected from judicial review, the court stated that the protection did not extend to breaches of mandatory provisions of the constitution, only to directory provisions. By that logic, if Article 110 (1) is seen as a mandatory provision, a breach of its provisions could lead to an interpretation that the Supreme Court may well question an erroneous decision by the speaker of the Lok Sabha to certify a legislation as a money Bill. The use of the word “shall” in Article 110 (1), the nature and design of the provision, its overriding impact on the other constitutional provisions granting the Rajya Sabha powers are ample evidence of its mandatory nature. Based on the above, Anup Surendranath has argued that the passage of the Aadhaar Act as a money Bill when it does not satisfy the constitutional conditions for it does amount to a gross illegality.

The judicial precedent in Mohd. Saeed Siddiqui vs State of Uttar Pradesh where the matter of the court’s power to question the decision of a speaker was considered, though, leans in the other direction. In 2012, the Uttar Pradesh Lokayukta and Up-Lokayuktas (Amendment) Act, 2012 was passed as money Bill by the Uttar Pradesh state legislature. Subsequently, a writ petition was filed challenging its constitutional validity. A three-judge bench of the Supreme Court looked into the application of Article 212. It is the provision corresponding to Article 122, dealing with the power of the courts to inquire into the proceedings of the state legislature. The court held that Article 212 makes “it clear that the finality of the decision of the Speaker and the proceedings of the State Legislature being important privilege of the State Legislature, viz., freedom of speech, debate and proceedings are not to be inquired by the Courts.” Importantly, ‘proceedings of the legislature’ were deemed to include within its scope everything done in transacting parliamentary business, including the passage of the Bill. While the court did acknowledge the limitations of parliamentary privilege as established in the Raja Ram Pal case, it did not adequately take into account the reasoning in it.

The Aadhaar Act is a legislation which makes it mandatory of all residents to enrol for a biometric identification system in order to avail certain subsidies, benefits and services. It has huge potential risks for individual privacy and national security and has been the subject of an extremely high profile Public Interest Litigation. Its passage as a money Bill, without any oversight from the Rajya Sabha and an opportunity for substantial debate and discussion, is a fraud on the Constitution. Whether or not the court chooses to see it that way remains to be seen.

Amber Sinha is a policy researcher at the Centre for Internet and Society.

9884 - The Aadhaar Act is Not a Money Bill - The Wire

The Aadhaar Act is Not a Money Bill

BY AMBER SINHA ON 24/04/2016 • 

While the authority of the Lok Sabha Speaker is final and binding, Jairam Ramesh’s writ petition may allow the Supreme Court to question an incorrect application of substantive principles.

Passing off the Aadhaar Bill as a money bill could erode the Rajya Sabha’s supervisory role. 

Credit: D J Singh, Flickr, CC BY 2.0

Since its introduction as a money bill in the Lok Sabha in the first week of March, the Aadhaar (Targeted delivery of Financial and other subsidies, benefits and services) Bill, 2016 has been embroiled in controversy. The Lok Sabha rejected the five recommendations of the Rajya Sabha and adopted the bill on March 16 and only presidential assent was required for it become to become valid law. However, former Union Minister Jairam Ramesh filed a writ petition contesting the decision to treat the Aadhaar Bill as a money bill. The petition is due to be heard before the Supreme Court on April 25, and should the court decide to entertain the petition, it could have far-reaching implications for the Aadhaar project and the manner in which money bills are passed by the Parliament.

There are three broad categories of bills (all legislations or Acts are known as ‘bills’ till they are passed by the Parliament) that the Parliament can pass. The first kind, Constitution Amendment Bills, are those that seek to amend a provision in the Constitution of India. The second are financial bills which contain provisions on matters of taxation and expenditure. Money bills are a subset of the financial bills which contain provisions only related to taxation, financial obligations of the government, expenditure from or receipt to the Consolidated Fund of India and any matters incidental to the above. The third category is of ordinary bills which includes all other bills. The process for the enactment of all these bills is different. Money bills are peculiar in that they can only be introduced in the Lok Sabha where it can be passed by simple majority. Following this, it is transmitted to the Rajya Sabha. The Rajya Sabha’s powers are restricted to giving recommendations on the Bill and sending it back to the Lok Sabha, which the Lok Sabha is under no obligation to accept. The decision to introduce the Aadhaar Bill as a money bill has been widely seen as an attempt to circumvent the Rajya Sabha where the ruling party is in a minority.

Article 110 (1) of the Constitution defines a money bill as one containing provisions only regarding the matters enumerated or any matters incidental to them. These are a) imposition, regulation and abolition of any tax, b) borrowing or other financial obligations of the Government of India, c) custody, withdrawal from or payment into the Consolidated Fund of India (CFI) or Contingent Fund of India, d) appropriation of money out of CFI, e) expenditure charged on the CFI or f) receipt or custody or audit of money into CFI or public account of India. Article 110 is modelled on Section 1(2) of the (UK) Parliament Act, 1911 which also defines the money bills as those only dealing with certain enumerated matters. The use of the word “only” was brought up by Ghanshyam Singh Gupta during the Constituent Assembly Debates. He pointed out that the use of the word “only” limits the scope of money bills to only those legislations which did not deal with other matters. His amendment to delete the word “only” was rejected clearly establishing the intent of the framers of the Constitution to keep the ambit of money bills extremely narrow.

While the Aadhaar Bill does make references to benefits, subsidies and services funded by the Consolidated Fund of India (CFI), even a cursory reading of the bill reveals its main objectives as creating a right to obtain a unique identification number and providing for a statutory apparatus to regulate the entire process. The mere fact of establishing the Aadhaar number as the identification mechanism for benefits and subsidies funded by the CFI does not give it the character of a money bill. The bill merely speaks of facilitating access to unspecified subsidies and benefits rather than their creation and provision being the primary object of the legislation. Erskine May’s seminal textbook, ‘Parliamentary Practice” is instructive in this respect and makes it clear that a legislation which simply makes a charge on the Consolidated Fund does not becomes a money bill if otherwise its character is not that of one.

PDT Achary, former secretary general of the Lok Sabha, has expressed concern about the use of Money Bills as a means to circumvent the Rajya Sabha. He has written here and here, on what constitutes a money bill and how the attempts to pass off financial bills like the Aadhaar Bill as money bills could erode the supervisory role Rajya Sabha is supposed to play. This is especially true in the case of a legislation like the Aadhaar Bill which has far reaching implications for individual privacy as it governs the identification system conceptualised to provide a unique and lifelong identity to residents of India dealing with both the analog and digital machinery of the state and by virtue of Section 57 of any private entities. Already over 1 billion people have been enrolled under this identification scheme, and the project has been a subject of much debate and a petition before the Supreme Court. The project has been portrayed as both the last hope for a welfare state and  surveillance infrastructure. Regardless of which of the two ends of spectrum one leans towards, it is undeniable that the law governing the Aadhaar project deserved a proper debate in the Parliament. Even those who are strong proponents of the project must accept the decision to pass it off as a money bill undermines the importance of democratic processes and is a travesty on the Constitution and a blatant abrogation of the constitutional duties of the speaker.

The petition by Jairam Ramesh would hinge largely on the powers of the judiciary to question the decision of the Speaker of the Lok Sabha. Article 110 (3) is very clear in pronouncing the authority of the Speaker as final and binding. Additionally, Article 122 prohibits the courts from questioning the validity of any proceedings in Parliament on the ground of any alleged irregularity of procedure. The powers of privilege that Parliamentarians enjoy are integral to the principle of separation of powers. However, the courts may be able to make a fine distinction between inquiring into procedural irregularity which is prohibited by the Constitution; and questioning an incorrect application of substantive principles, which I would argue, is the case with the Speaker decision.

Amber Sinha is a policy researcher at the Centre for Internet and Society.