The Court’s perspective on this issue brings to bear a number of important constitutional issues that need to be addressed immediately. Firstly, having access to content related to “obscenity” linked to the Aadhaar number will also mean that all online anonymity will cease to be protected and, in effect, this will increase the amount of control given to the government regarding what individuals are allowed to view and/or post online. Secondly, since the meaning of “obscenity” has always been subject to personal opinion and moral bias, if the Court continues to follow a technological enforcement of this concept, it will result in an enormous increase in the amount of government control over online spaces such as YouTube and other OTT platforms and, ultimately, over independent creators.

From the Ranveer Allahabadia Matter to Systemic Control

The Court’s changing view can be traced back to a case involving Ranveer Allahabadia, a YouTuber accused of producing “obscene” and “immoral” video content. This case raised the question of whether the legal rules and regulations currently in effect were sufficient to govern such content. As stated in the Supreme Court Observer respectfully, it appeared as though the Court was more concerned with the potential risks posed by unregulated digital content than with determining whether the petitioner was harmed by the defendant’s content. A similar finding was reported in the Global Freedom of Expression case report from Columbia University, which stated that the petitioner did not present evidence of legal harm, but instead framed the issues through the lens of moral panic.

Following this, the positions taken by the Supreme Court became increasingly broad, culminating in a March 2025 request by the Court to the Union government to think about enacting a law creating a national standard for “online obscenity”. In doing so, the Court transitioned from addressing the content grievance in a singular context to calling for a systematic legislative approach to achieve the same. The Court stated that India lacked a neutral, independent regulatory authority to oversee online content.

In late 2025, the ongoing confusion within the legal framework surrounding Aadhaar culminated in the formulation of a very specific concept regarding how Aadhaar should be used as the basis for age verification for the purposes of preventing minors from accessing pornographic materials. This was not simply a passing comment or procedural matter but was rather a comprehensive strategy of linking an individual’s access to online material directly to an individual’s biometric identity through Aadhaar’s use as an age verification mechanism.

The March 2025 Direction and the Government’s Parallel Initiatives

The Supreme Court’s March 2025 directive to the Executive branch of the Union Government came at a time when the Executive branch had been assessing the types of control that it might use to regulate digital content. Witnesses described that the Ministry of Information and Broadcasting was looking into creating regulations that would provide new rules for the regulation of “perverse user-generated content,” which was echoed by Solicitor General Tushar Mehta, who had testified to the Supreme Court.

At the same time, there was an effort on behalf of the Central Government to push out an Influencer Code, resulting in concern over the lack of public consultation. The Internet Freedom Foundation recorded those concerns in its report and called for a consultation on the matter. The report can be read here.

Many parties were warning that the Supreme Court’s strong push for new legislative enactments could have a chilling effect on legitimate online speech, with reports in The Hindu explaining this matter and how it combined with the earlier actions by the Executive branch indicating an increasing amount of judicial interest in the regulation of social media, and the ability of the Supreme Court to regulate online speech.

Therefore, what once appeared to be one case of litigation has been seen to be braided into a more significant regulatory push. The Supreme Court and the Executive branch are seen to mutually reinforce each other’s concerns regarding digital content.

Obscenity as a Legal Category: Colonial Morality in Digital Form

India’s obscenity doctrine has its origins in the pre-constitutional era. The Interpretation of Section 292 in the IPC has been based on the moral standards of Victorian England, in how sexual expression was viewed as corruptive. Although the Supreme Court has attempted to modernize the definition of “obscene” in Aveek Sarkar v. State of West Bengal by moving from the Hicklin test to current community standards, the concept of obscenity remains the most unclear and controversial definition in Indian Law.

Traditionally, the word “obscene” has been a means to censor the expression of LGBTQ+ individuals, feminists, those providing information about reproductive health, those who produce artistic works and literature, and people who provide sex education. By using the same definition of obscenity to create and regulate content within the digital space, these definitions will encompass many types of legitimate speech, i.e., queer content, experimental art, sex education content being made on YouTube, and narratives of survivors.

Because spaces for digital creators, i.e., YouTube and OTT platforms, are some of the only ways that individuals can currently communicate with large audiences that are not already censored within the media through either governmental control or the NBDSA, independent creators possess the unique ability to produce their content on these platforms without any type of government interference. By establishing obscenity regulations, the autonomy that independent creators currently possess would be lessened, allowing the government to indirectly suppress dissent, satire, and criticisms of the established cultural/ethical norms of society, under the guise of “protecting” minors.

Aadhaar-Based Age Verification: The Constitutional Faultlines

The Court’s finding that the Aadhaar system could be used as an age gate for virtual media raises significant constitutional issues.

Article 19 (1) (a) grants individuals a right to receive information as well as to express themselves. Using Aadhaar to authenticate access to digital content destroys the ability to remain anonymous and connects people’s viewing patterns with their biometric identity. Because of this linkage, individuals may feel deterred from viewing and/or interacting with material that is sensitive in nature, including material related to political criticism, mental health, LGBTQ resource issues, and sexual education.

Article 21 requires that any encroachment upon an individual’s right to privacy must meet the proportionality tests outlined in Justice K.S. Puttaswamy v. Union of India. Aadhaar-based verification of an individual’s age does not meet these criteria as it is neither required nor proportionate. Alternative methods of age verification that do not require individuals to disclose their identities, such as anti-fraud age verification or token-based confirmation of age, may serve as less invasive methods.

Article 14 addresses the issue of classification. Because obscenity is a subjective classification and is inconsistently applied across jurisdictions, an identity-linked filtering system allows arbitrary and disparate restriction of content. Thus, material labelled as “immoral” or “perverse” can disproportionately affect marginalized producers of content, as well as LGBTQ related materials, political satire, or criticisms of majority morality.

Globally, similar types of legislation have been challenged and have been ruled unconstitutional in court. In the U.S., age-verification laws in Utah, Arkansas, and Texas were found to violate an individual’s right to privacy by imposing a chill on lawful speech. Additionally, the Digital Economy Act in the U.K. abandoned the use of age verification due to privacy concerns and the difficulty of implementing that scheme. The General Data Protection Regulation (GDPR) of the EU presumes large-scale identity verification in order to access content as a violation of existing privacy law. Finally, Aadhaar-based filtering is significantly more intrusive than any other methodology described above and places India outside the realm of established international norms based on rights.

Who Classifies Obscenity?

In what is likely the most important question raised by the Court’s recent remarks, the issue of determining what constitutes obscenity remains unresolved. While the Court has suggested that a neutral and independent body should make this determination, the historical patterns of regulatory bodies in India indicate that there will be an ongoing struggle for executive supremacy over regulatory bodies. Even self-regulatory agencies are often placed under significant amounts of state pressure, as evidenced by SCObserver’s analysis of takedown jurisprudence found in Wikimedia Foundation v. ANI and pointing to the inherent risk that any regime to classify material as obscene will be manipulated by the political elite in a country where the lines between nationalism and morality have become increasingly unclear. Therefore, it is highly probable that any form of content that has been deemed ‘anti-national’, ‘anti-authority’, or ‘anti-Indian’ will likely be categorized with what is generally regarded as immoral.

The Political and Practical Risks: Can Balance Exist?

Although it is almost impossible to find a balanced approach to controlling minors from unlawful exposure to cyberspace content while at the same time protecting individuals’ right to free speech, the current regulatory developments within India indicate that finding a true balance is aspirational at best. Increasing pressure from the governing body and the continual expansion of the IT Rules, as well as significant interest in ensuring traceability of cyber content, lack of information regarding reasons for user information withdrawal, and draft regulations for influencer(s) will only serve to establish an overwhelming level of executive control over the speech and behaviour of individuals within cyberspace.

In this context, obscene content provides an excellent opportunity for state intervention by way of protecting children but ultimately provides an opening for vague state regulation of all forms of expression. Such an increase in state authority will rarely decrease, as has been pointed out by many authorities in constitutional law who cautioned against the expansion of state power.

Safeguards against a Moral-Political Regime

The Supreme Court’s development of a new anti-obscenity regime should include critical safeguards, including:

1. a transition from ‘moral’ definitions to ‘harm’ based definitions;
2. an independent and accountable regulatory authority not influenced or dominated by the Executive;
3. a requirement for all regulations to be developed with transparency and public consultations;
4. a strong commitment to continuing judicial review over takedown requests; and
5. a prohibition on access to content via Aadhar-based identity links.

If these safeguards are not implemented, India risks creating a system where the use of morality as a justification for censorship, identity as a currency for realizing one’s right to access information, and a re-definition of digital public spaces under the control of State powers occur.

The judgment in Aveek Sarkar v. State of West Bengal can be read here:

The judgment in Justice K.S. Puttaswamy v. Union of India can be read here:

The judgment in Wikimedia Foundation v. ANI can be read here:

(The legal research team of CJP consists of lawyers and interns; this resource has been worked on by Preksha Bothara)

Related

The Sentinel and the Shift: Free speech in the Supreme Court

Free Speech in the Digital Age: A doctrinal analysis of four recent Supreme Court cases on Article 19(1)(a)

Ranveer Allahbadia: A “victim” of selective outrage?

Don’t cross the line: Courts on media trials and erring conduct of anchors

Free Speech Upheld: Bombay HC strikes down IT (Amendment) Rules, 2023 as unconstitutional

The post When Morality Meets Surveillance: The court’s push toward state-regulated digital content appeared first on SabrangIndia.

The citizenship crisis in Assam is a stark reality that has left countless individuals in a state of uncertainty and despair. Citizens for Justice and Peace (CJP) has engaged with those grappling with the fallout of the NRC process, revealing a deeply fragmented experience: while some individuals have finally gained access to their Aadhaar cards, many others remain in limbo, still awaiting resolution. This dissonance highlights the ongoing bureaucratic chaos and the emotional toll it takes on people, who are often caught between the hope of recognition and the fear of exclusion. The narratives shared by these individuals paint a vivid picture of the anguish that accompanies their struggle for identity and belonging in a landscape fraught with suspicion and legal ambiguity. As families grapple with their precarious status, the reality of this citizenship crisis underscores the urgent need for clarity, accountability, and compassion in addressing the rights and identities of all residents of Assam.

Broken livelihoods and shattered trust

Fazrul Hoque from Dhubri speaks to the CJP Assam team about the human cost behind the state’s administrative failures. Hoque is one of those whose Aadhar has been released by the state government. “My company didn’t transfer my salary because I didn’t have an Aadhaar. For five years, I had to use someone else’s account, and now I am fined for it. Getting my Aadhaar now is a relief, but these years of harassment—financial and mental—cannot be erased.”

Struggles of rural Assam: abureaucratic nightmare

Others, like Tanmoy Saha, remain trapped in limbo. His biometrics may have been unlocked, but his Aadhaar is still “in process.” For five long years, Tanmoy has faced numerous obstacles due to the delay. “It’s just another bureaucratic hurdle,” he shares with palpable disappointment.

Hasina Khaoon and Ariful Islam from Darrang district reflect similar frustrations. Both continue to wait for their Aadhaar cards, even after the unlocking of biometrics. “I’ve been stuck for five years because of the NRC biometrics issue,” Ariful says, clearly exhausted. “Others in the same situation have already received their Aadhaar cards, but I am still waiting.”

For many, it wasn’t just about the prolonged wait. The bureaucratic hurdles added a level of trauma, as people were forced to navigate confusing processes with little clarity or help. Noreja Begum from Chirang district recalls the additional distress of losing her biometric enrolment document during the NRC process. This led to a further delay in her Aadhaar issuance. “I couldn’t have done it without the help of CJP. They supported me through the process, and I finally have my Aadhaar, but it has been an extremely difficult journey.”

Daily life on hold: price of locked biometrics

Access to Aadhaar is more than just a document for many. It represents survival and dignity. Rina Ghosh, a mid-day meal worker earning a meagre Rs.1,000 a month, reveals how the locked Aadhaar barred her from basic government benefits. “I was eligible for Orunodoi, free rice, and MPAY housing. But because my Aadhaar was locked, I was denied these essential benefits.” The impact of this deprivation has been particularly severe in rural Assam, where government welfare schemes form a critical safety net for many families.

For others, the damage extends to their political rights as well. Anowara Khatoon from Goalpara finds herself doubly marginalised. Her voter list status is marked ‘D’ (Doubtful voter), stripping her of her right to vote, and her Aadhaar, which was delayed by the NRC process, is finally here—but the name is incorrect. “I feel like I am invisible to the system,” she says.

Humanitarian intervention and accountability

In the face of a broken system, civil and legal rights organisations like Citizens for Justice and Peace (CJP) have stepped up to help. CJP’s field team member, Habibul Bepari, recounts the stories of numerous families who were unaware of their Aadhaar status because their biometrics were locked. “One family had even lost their documents and enrolment numbers,” Bepari recalls. “We helped them retrieve the details and provided them with digital Aadhaar. The relief on their faces was overwhelming.”

But relief is not enough. Nanda Ghosh, CJP’s Assam State In charge, raises the pressing question of accountability. “Over 27 lakh people had their biometrics locked during the NRC update. For five years, they were denied Aadhaar, a basic document to which they are entitled under Aadhaar rules, which state that anyone residing in India for 182 days is eligible. What was their crime?” Ghosh asks pointedly. “The government has announced that 9 lakh people will now get their Aadhaar. But what about the remaining 18 lakh? And for the 9 lakh—don’t they deserve compensation for the injustice they endured?”

An administrative labyrinth

On August 28, 2024, Assam Chief Minister Himanta Biswa Sarma announced that the central government had decided to unlock the biometrics of 9.35 lakh people, which were locked during the NRC (National Register of Citizens) process. This would finally allow them access to Aadhaar cards, enabling them to benefit from government welfare schemes like scholarships and social assistance programs. But for many, the question remains—why did it take so long?

The delay in issuing Aadhaar cards apparently stems from a misunderstanding of a Supreme Court order. In 2019, when people excluded from the NRC draft were allowed to appeal, the Assam government collected their biometric data in collaboration with the Unique Identification Authority of India (UIDAI). The rationale was to prevent those excluded from the final NRC from obtaining Aadhaar, as Assamese nationalist groups feared that “illegal migrants” would misuse the document—even though Aadhaar is not proof of citizenship.

As per a report of Scroll, in 2022, Rajya Sabha MP Sushmita Dev filed a public interest litigation in the Supreme Court requesting that Aadhaar cards be issued to individuals included in the NRC who had not yet been assigned unique identity numbers. In response to the petition, the union government had informed the Supreme Court on October 13, 2022, that individuals included in the final NRC would receive an Aadhaar number according to the standard operating procedures approved by the Court. However, the union government had also stated that it had withheld the issuance of Aadhaar cards for these individuals because the application receipt numbers from the NRC process had not been provided to the Unique Identification Authority of India (UIDAI). As per the report of Scroll, this information is documented in an affidavit reviewed by them.

CJP’s petition on denial of Aadhaar linked to NRC in the Gauhati High Court

In 2022, Public Interest Litigation (PIL) was filed under Article 226 of the Constitution of India by Citizens for Justice and Peace (CJP) in the Gauhati High Court, seeking a writ in the nature of Mandamus or other appropriate orders regarding the failure to issue Aadhaar cards to eligible citizens. As per the petition, this failure stems from the unjust practice of linking Aadhaar enumeration with the NRC process, which has disproportionately affected marginalised and underprivileged communities, particularly in Assam.

Key concerns raised in the petition:

• CJP emphasizes that the non-enumeration of Aadhaar, mandated under Section 7 of the Aadhaar Act (2016), denies access to essential financial subsidies, government services, and welfare schemes. This exclusion primarily impacts those left out of the NRC draft, even though the Aadhaar Act does not link Aadhaar enrolment with citizenship.
• The petition further highlights violations of the Aadhaar (Enrolment and Update) Regulations (2016), especially Regulation 12, which requires state agencies to ensure Aadhaar enrolment for beneficiaries through proactive measures like setting up enrolment centres. However, in Assam, Aadhaar enrolment has been delayed, with many of those who were initially excluded from the NRC still without Aadhaar identification.

Thereafter, it is crucial to also highlight that the Citizens for Justice and Peace (CJP) had also intervened in the Sushmita Dev v Union of India case [WP (C) No(s).1361/2021] in the Supreme Court since a similar petition of theirs had also been filed in the Gulati High Court. It was highlighted by the CJP that it sought to intervene in the said Writ Petition due to its significant interest in the matter, particularly concerning the implications of linking Aadhaar enrolment with citizenship rights and the NRC process.

Through the Intervening Application, CJP had raised the following key prayers before the Supreme Court-

1. A writ of certiorari to quash any decision blocking Aadhaar enrolment for individuals excluded from the NRC Draft published on July 30, 2019.
2. A writ of mandamus directing Aadhaar enrolment for all persons excluded due to their non-inclusion in the NRC process.
3. Interim relief ensuring that those excluded from Aadhaar due to the NRC process are not deprived of government schemes, welfare measures, banking activities, or the use of PAN cards during the pendency of the petition.

CJP had, through its application, shown its particularly concern about the Union of India’s proposed modalities that link Aadhaar enrolment to the NRC process, potentially affecting both citizens and non-citizens. The Applicant had believed this linkage could cause grave prejudice to the rights of those excluded from the NRC.

This came after the petition that CJP had filed in the Gauhati High Court.

CJP’s grassroot-level work in Assam

CJP’s work has been a crucial intervention in addressing the struggles of marginalised populations, especially in rural areas, with 62% of the affected being women. Through paralegal and legal aid, CJP’s Assam team has provided support to tens of thousands of people who were left out of the NRC’s provisional final list in 2018, which had caused widespread panic and distress among Assam’s population.

In addition to this ground-level work, CJP had also set up a toll-free helpline to assist those struggling to file claims and corrections during the NRC process. Many of these individuals, even after their inclusion in the final NRC list, still lack Aadhaar cards, making them ineligible for various essential services and financial subsidies.

Details of the petition in the High Court (CJP): The petition highlights that 213 out of 300 individuals surveyed, who were included in the NRC, have still not been issued Aadhaar cards, which shows a staggering non-enrolment rate of 71%. Furthermore, even those who were excluded from the NRC have been shut out of the Aadhaar system entirely. This systemic denial of rights, despite no legal link between citizenship and Aadhaar, constitutes an arbitrary exercise of power by the authorities, further deepening the marginalisation of Assam’s poor and agrarian populations.

CJP also underscored the humanitarian aspect of their work, especially during the COVID-19 pandemic. In addition to providing relief materials, the team has helped families of detainees in Assam’s detention centres secure their release after the Supreme Court directed the release of inmates who had completed two years of detention. This work involved navigating complex bail formalities for over 50 individuals.

The petition filed in the High Court also firmly argues that citizenship and Aadhaar should not be linked, especially given that Aadhaar is required for critical services like banking and government benefits. The ongoing denial of Aadhaar to those excluded from the NRC is a violation of their fundamental rights under Part III of the Constitution, particularly as the Aadhaar Act itself does not base eligibility on citizenship. If left unaddressed, this exclusion will lead to the continued disenfranchisement of millions, with estimates suggesting that as many as 40 lakh individuals in Assam may still be without Aadhaar.

The petition concludes by urging the Gauhati High Court to issue directions to the authorities to ensure the immediate issuance of Aadhaar cards to all eligible persons, including those excluded from the NRC, so that they may access the full range of benefits and services under government schemes. It calls for the removal of arbitrary barriers and urges the authorities to comply with the mandates of the Aadhaar Act, ensuring that the rights of marginalised populations are upheld in both letter and spirit.

An admission of error: Years too late

According to the Scroll’s report, in July 2023, after three years of relentless pressure, Assam’s home department had finally admitted to misinterpreting the Supreme Court’s directions. The officials acknowledged that there was no legal basis for withholding Aadhaar cards, resulting in over 9 lakh people being denied essential entitlements for half a decade.

This admission of error, however, does little to console those affected. There is also confusion regarding the actual number of people whose biometrics were blocked. While the Assam government initially reported that 27.43 lakh individuals had their biometrics collected during NRC re-verification, officials now state that only 9.35 lakh actually did. This miscalculation further highlights the inefficiency and administrative chaos that has plagued the Aadhaar-NRC debacle.

Living in limbo

The unlocking of biometrics raises another uncomfortable reality for many in Assam—those who were excluded from the final NRC can now get Aadhaar cards, but their citizenship status remains in limbo. Without official rejection orders from the NRC, these individuals cannot appeal their citizenship cases in foreigners’ tribunals. In this odd legal paradox, they are given access to Aadhaar while simultaneously being marked as stateless, adding another layer of uncertainty to their lives.

The road ahead

Despite the unlocking of biometrics, the struggle for justice in Assam is far from over. While the recent announcement brings a measure of relief to many, it also exposes a labyrinth of unresolved issues that have persisted for years. Questions about transparency, accountability, and compensation remain pressing concerns for those affected by the NRC process.

For individuals like Fazrul Hoque from Dhubri and Anowara Khatoon from Goalpara, the unlocking of their biometrics signifies more than just the potential to access government benefits; it represents a long-awaited acknowledgment of their identity and citizenship. Anowara’s frustration is compounded by the fact that her voter status is marked ‘D,’ effectively disenfranchising her despite her new Aadhaar card containing incorrect information.

Others, like Hasina Khaoon and Ariful Islam echo similar sentiments of confusion and frustration. Hasina is still waiting for her Aadhaar card, unsure of the reasons for the delay, while Ariful feels trapped in limbo, watching others receive their cards while he remains stuck in a bureaucratic quagmire. Noreja Begum emphasises the emotional toll and the harrowing experience of losing critical documents, while Rina Ghosh illustrates the dire consequences of being denied access to essential services due to the locked Aadhaar making her struggle even more painful.

The unlocking of biometrics has also highlighted the plight of individuals who, despite the process being completed, are still in a waiting game. Tanmoy Saha, for instance, continues to face challenges as his Aadhaar remains “in process.” His disappointment reflects a broader reality that many have endured: years of hardship without access to vital identity documents.

Moreover, the fear of selective profiling and discrimination looms large. Amidst a backdrop of politically charged rhetoric from leaders like Chief Minister Himanta Biswa Sarma, doubts persist about whether the government can truly ensure equitable access to services for all citizens, regardless of their background. This climate of suspicion undermines trust in governance and raises significant concerns about the future of citizenship and identity in Assam.

The broader implications of these issues extend beyond individual hardships. They call into question the very foundations of democracy and the principles of justice and equality that underpin it. As affected individuals continue to fight for their rights and recognition, they advocate not only for themselves but also for a more inclusive and transparent system that respects the dignity of all citizens.

In this context, accountability from the state becomes essential. Advocacy groups, including CJP, emphasise the need for comprehensive policies that address the injustices faced by those affected by the NRC process. They argue that it is crucial for the government to not only unlock biometrics but also provide compensation for the suffering endured by individuals and families during these tumultuous years.

As Assam navigates this complex landscape, the road ahead will require a concerted effort from all stakeholders—government officials, civil society, and the public—to ensure that the rights and dignity of every citizen are upheld. Only through collective action and a commitment to justice can the state begin to heal from the wounds of this prolonged crisis, paving the way for a more equitable future for all.

Related:

Eviction tragedy in Assam: Two killed during eviction drive as police firing sparks allegations of government bias

Assam government’s efforts to intensify crackdown on “Suspected/Declared Foreigners” sparks fears of brute targeting & rights denials

New Assam Muslim Marriages & Divorces Bill: Reform or politics?

Assam: Partial relief, over 9 lakh people to get Aadhaar card, serious questions for excluded 18 lakh

The post Assam citizenship crisis: Aadhaar and the shadows of exclusion and administrative labyrinth appeared first on SabrangIndia.

As per the analysis of the data revealed in the parliament on February 8, 2024 by MoS, Ministry of External Affairs, only 9,26,24,661 Indians held passports in 2024, which is less than 10 percent of the population. This means that NTA is virtually forcing students to provide Aadhar ID, violating the landmark privacy judgement of the apex court delivered in Justice K.S.Puttaswamy (Retd) vs Union of India in 2018 (also known as Aadhaar judgement). In the Aadhaar judgment while the Supreme Court had upheld the constitutional validity of Aadhaar Act, 2016, it also struck down some of the provisions of the Act and declared that the ambit of Aadhaar should be limited. It had noted that the government cannot make Aadhaar a prerequisite for availing non-welfare benefits or services.

Why NTA should provide other options to students

CUET UG is a common entrance test for hundreds of universities in the country, including central, state, and private universities for various courses and programmes. Its test centres are spread across the states covering virtually the whole of the country. Given the sheer number of candidates who apply for CUET entrance test across the country, it is imperative that the process remains as inclusive, open, and least intrusive as possible. In 2023, a total of 16 lakh students had registered for CUET UG across 242 universities, revealing the scale of the entire exercise.

In the circular issued by the Unique Identification Authority of India (UIDAI) on September 5, 2018, which is a nodal agency for Aadhar, it noted that “It must be ensured that no children are deprived/denied of their due benefits or rights for want of Aadhaar. Some instances have come to our notice that few schools are denying admission to children for want of Aadhaar. Such denials are invalid and not permitted under the law. It is also to be ensured that no child should be denied admission and other facilities for lack of Aadhaar.”[1]

Thus, UIDAI had recognised that Aadhar was contributing to the exclusion of school students. In the present case, NTA can be seen doing something similar, which was earlier flagged by UIDAI at the school level. While NTA may justify its conduct, arguing that in the case of school students, they were minor children and therefore the comparison cannot be drawn between the two cases. Nonetheless, this does not address the issue of compulsory requirement of Aadhar, since for availing non-welfare services only voluntary provision is provided in the law. In addition, a minor who has created her Aadhar card with the consent of her guardian is provided with an option to cancel the same upon attaining majority age.

The concern also arises as NTA refuses to consider other government issued identity proofs, including voter ID, driving licence, education board certificate, among others. This is problematic as the aforementioned documents are valid legal documents, but in spite of that, NTA refuses to accept them, raising concerns over legitimacy of non-Aadhar ID proofs.

Additionally, the privacy risks posed due to the collection and use of Aadhaar data is another aspect which NTA needs to consider. As the Aadhar details are linked with others private information like PAN Card, bank account, driving licence, to name a few, NTA ought to be well aware of the risks posed due to leakage or misuse of Aadhar data. Furthermore, the privacy policy is not readily shown on CUET UG registration website, which makes it difficult to assess the standards and policies adopted by NTA to secure and process the data of the registering students.

Privacy rights, Aadhar and CUET

In the landmark privacy rights judgment delivered in 2017 by the nine-judge constitutional bench of the Supreme Court, it was unanimously held that the right to privacy is a fundamental right of citizens and part and parcel of Article 21. In a separate judgment delivered in 2018, while upholding the Aadhar Act, it struck down Section 57 of the Act which provided powers to private entities for mandating Aadhaar ID for availing their services. The court had noted that there was no nexus between giving such powers to private entities and the intended aim of the legislature, which was to enhance welfare services of the citizens and prevent leakages. Similarly, though the NTA is a government body, the CUET UG entrance test has no nexus to the intended aim of the Aadhar Act, which is to improve welfare services. Therefore, it can only voluntarily ask for Aadhaar ID of registering students, but cannot force them to submit one. The doctrine of colourable legislation ensures that whatever is prohibited directly is also prohibited indirectly. Hence, the Aadhar Act cannot allow NTA to indirectly force the student to submit their Aadhar ID for the purpose of CUET entrance test, as it will violate students’ right to privacy.

Furthermore, the Digital Personal Data Protection Act, 2023 (DPDP), virtually exempts Central Government and all its entities (NTA being part of it) from providing any data protection measures required under the Act, as most of the provisions of the Act does not apply to the Central Government or any entity of the Central Government. While DPDP Act is yet to be notified in the absence of the rules, the lack of data protection norms makes the situation no better.

As the CUET UG 2024 deadline stands extended till March 31, 2024, we wait for NTA to make the registration process more inclusive and less intrusive.

The relevant documents and screenshot can be found here:

Note: We would like to acknowledge Citizens Forum for Civil Liberties (CFCL) for sharing the relevant material with us and bringing forth this issue.

(The author is part of the Legal Research Team)

[1]https://uidai.gov.in/images/resource/Circular-School-06092018.pdf

Related:

State-sponsored Doxing: Is it even legal?

SC upholds Aadhaar’s Constitutional Validity, but partially addresses Privacy Concerns

Linking Aadhaar to Social Media

The post CUET UG 2024 registration process is pushing students to compulsorily provide Aadhaar details, violating the privacy judgment of the apex court appeared first on SabrangIndia.

This public interest litigation (PIL) was filed citing 11 such children, four of whom were either severely malnourished (SAM) or acutely malnourished (MAM) and was brought to the attention of the Court. After detailed affidavits and responses, the Court has not just underlined that government schemes to mitigate malnourishment and hunger should be inclusive but sought commitments from the Union of India (Women and Child Welfare Department-WCD) and state government that sincere efforts would be made to reduce these malaises and government schemes would be proactively made available.

The Order was delivered on May 18, 2023 and the matter has been listed on August 1, 2023.

A public interest litigation filed before the court dealt with severe malnutrition of children that emerged in Danagadi Block in the district of Jaipur which brought to notice the non-coverage of PDS and NFSA. In its Order, the court observed that it is a fact that there are still several poor and vulnerable people in the country who do not possess an Aadhaar card or mobile number and these people cannot be excluded from availing the benefits of the welfare schemes which are meant to cater to the needs of the poorest and vulnerable sections of the society.

The court while suspecting the exclusion of some vulnerable people from PDS or NFSA directed the Department of Women and Child Development to ensure that the coverage of these schemes is increased progressively every year which can take place only when there are systems in place that incentivise ‘inclusion’ rather than ‘exclusion’.

Pertinently, the Court sharply observed that human lives and health of persons, especially children should not be measured as cold statistics and percentages alone but by acknowledging that they are actual persons.

To have in Odisha in 2023 nearly 30,000 SAM and 86,000 MAM children is a cause for alarm not just for the State of Odisha but for the Government of India as well. If one were to understand the national percentages of 2.26% SAM and 4.75% MAM on a 1.8 billion population, and translate them into actual numbers, the severity of problem would become evident.

Facts of the Case

One child, Subhalaxmi Tarai, who was suffering from cerebral palsy and secondary malnutrition had died. Records suggest that young Subhalaxmi Tarai had been abandoned by her family. She was found dead on April 20, 2023. According to the affidavit filed by the Collector of the district, thereto, ASHA health activist of the area is supposed to have visited the child on two dates in January and one date in February, 2023. The Rashtriya Bal Swasthya Karyakrama (RBSK) team is also said to have visited her.

The finding that “as she was suffering from cerebral palsy, she could neither move nor inform the neighbours of the plight” is a pointer to the fact that here is a “a child in need of attention, who is unable to get it despite the existence of a plethora of schemes both at the level of the Central Government and the State Government which will be referred to hereafter,” observed the Court. (Paras 2, 3)

Another child who also died, Arjun Hembram, whose name, does not find mention’ in the records of the Mobile Health Team (MHT). “This,” observed the High Court, “is a pointer to the fact that there could still be families and children, who are not covered by the schemes. The fact is that these are all children in the age group of 0 to 6 years and belong to tribal community and the poorest sections of the society.” (Para 4)

The Court cautioned one Mr Pandey, Secretary to the Women & Child Development (WCD) ministry in the Union government that

“…Human lives and health of persons, especially children should not be measured as cold statistics and percentages alone but by acknowledging that they are actual persons. To have in Odisha in 2023 nearly 30,000 SAM and 86,000 MAM children is a cause for alarm not just for the State of Odisha but for the Government of India as well. If one were to understand the national percentages of 2.26% SAM and 4.75% MAM on a 1.8 billion population, and translate them into actual numbers, the severity of problem would become evident.”

The Court impressed upon Mr. Pandey that at the level of Government of India, it has to be ensured that the coverage under the schemes is increased progressively year after year and that can only happen if there are systems put in place that incentivise ‘inclusion’ rather than ‘exclusion’. “

For e.g., the failure to possess an Aadhaar Card or a mobile phone or a proper ‘identity’ paper of a particular kind can result in a child or a family being denied the basic support in terms of food and supplements which are so essential for basic survival. The absence of these documents cannot become obstacles to availing the benefits under the schemes.” (Para 7) 

A fact that emerged in course of deliberations before the Odisha High Court during the hearing of the PIL, was that even in a district like Jajpur in Odisha the coverage of the population by public distribution system (PDS) under the National Food Security Act (NFSA) is not ‘universal’. Discussions in the court discussion threw up expressions like ‘allocation’ and ‘vacancies’ pointing to the fact that there might be sections of our society, and this includes the most vulnerable, who may not be covered under the PDS system. Since the distribution of nutritional supplements and rations happens only through the PDS, there is every likelihood that a child or an expectant mother in a family in need of such supplements and rations may not receive them.

This, therefore, points to a larger problem of the coverage attempted to be achieved by the NFSA. This also shows that the absence of pending ‘applications’ for coverage under the PDS in a particular district may not explain how many people there are in actual need of such rations and supplements for their children, who may be either in the SAM or MAM categories. What compounds this issue further is that all the statistics are projected on the basis of 2011 census and not on the actual figures on the ground as of 2023. Therefore, the number of persons ‘excluded’ from the coverage of all the schemes could be much larger than what is projected in these affidavits. This is a matter for reflection both by the Government of India and the State of Odisha when they sit down to address the issue of gaps in the implementation of the schemes. (Para 9)

In its judgement, “the Court impressed upon Mr. Pandey that at the level of the Government of India, it has to be ensured that the coverage under the schemes is increased progressively year after year and that can only happen if there are systems put in place that incentivise ‘inclusion’ rather than ‘exclusion’. For e.g., the failure to possess an Aadhaar Card or a mobile phone or a proper ‘identity’ paper of a particular kind can result in a child or a family being denied the basic support in terms of food and supplements which are so essential for basic survival. The absence of these documents cannot become obstacles to availing the benefits under the schemes. (Para 10)

The Collector, Jajpur had stated in court on affidavit that no person in Jajpur district in Odisha has been denied any ration only because such person does not possess an Aadhaar card or a mobile phone. The Secretary, WCD Department, Odisha confirmed that this was the position elsewhere in Odisha too. The Court is of the considered view that given the unfortunate happenings in the Danagadi Block in Jajpur district spoken of in the petition, this needs to be made abundantly clear at both the State level as well as the National level since this welfare schemes are meant to cater to the needs of the most vulnerable and poor sections of our society who cannot be excluded on any ground including the lack of an Aadhaar Card or a mobile phone. The fact is that there are still several poor and vulnerable individuals, in the State of Odisha and in the country, who may not possess either. (Para 11)

Responding to the Collector, Jajpur’s stand that families of Scheduled Tribes are “not willing to have their children treated at the public health facilities and it requires great persuasion and sometimes even coercion to get them to have their children, who are obviously in the SAM and MAM categories, treated at the CHCs or DHHs. This points to the fact that more active efforts would have to be made by the Tribal Welfare Department to spread awareness of the existence of the schemes and to convince the tribal populations that they are intended to positively benefit them and their children. (Para 15)

Commitments have been given by both Commissioner-cum-Secretary, WCD Department and the Collector, Jajpur have stated that concerted efforts will be made to ensure that there is a progressive reduction in the numbers of children falling in the SAM and MAM category in the immediate short term i.e. in the next two months and those efforts will be kept up to ensure that there is no child in the SAM category in the near future in Odisha. (Para 16).

Other districts of Odisha also suffer from chronic malnutrition. While this PIL has highlighted the alarming situation concerning SAM and MAM children in the Danagadi and Sukinda Blocks in Jajpur district in Odisha, figures made available by the GOI’s WCD Department it appears that in Keonjhar district there are 2,820 children in the SAM category that require immediate attention.

The High Court through this Order therefore extended the scope of the present petition to include Keonjhar district as well and the Collector and the CDMO, Keonjhar have been directed to undertake visits to the Blocks in Keonjhar district in the next one month to ascertain for themselves the factual position regarding children in the SAM and MAM categories, but not stop at that. Just like the Collector, Jajpur has been able to identify the broader category of ‘vulnerable’ children and has undertaken to also identify the category of ‘vulnerable women’. Thereafter joint reports have to be submitted before the Court says the judgement also flagging the issue of ‘universal’ coverage under the PDS.

The High Court has also highlighted the fact that other departments like the apart from the  WCD Department are involved and SME Department, the Health and Family Welfare Department and the Tribal Welfare Department too should work together on the issue including also with Food and Civil Supplies, hold a review meeting within one month of the order, draw in participation of the Odisha Child Rights Commission too. (Para 17)

Case Title: Mantu Das v. Union of India & Ors.

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In a shocking revelation made before the Assam state assembly, the state’s minister for General Administration, Ranjeet Kumar Dass, admitted that the Aadhaar enrolment of 27,43,396 is in limbo. Their biometrics had been collected during the Claims and Objections process that was initiated after the draft National Register of Citizens (NRC) was published in July 2018. This includes the 19,06,657 people who were eventually excluded from the final NRC published in August 2019.

The question was raised by All India United Democratic Front (AIUDF) Member of Legislative Assembly (MLA) Ashraful Hussain. Dass revealed that now it was up to the center to decide if their Aadhaar enrolment would be considered valid. The biometrics of these 27 lakh people had been frozen after the final NRC was published and though an appeal had been made to the center to unfreeze them, given how the NRC has not been recognized so far as a document of citizenship, the process has not moved forward.

This has adversely impacted the lives of people who have been denied social entitlements linked to Aadhaar. It is noteworthy that Aadhaar is linked to virtually every aspect of one’s life from banking to cooking gas connection, to housing under the Pradhan Mantri Awas Yojana (PMAY), to direct transfer of subsidies to availing food at subsidised costs from the Public Distribution System.

Here’s a list that shows the number of people excluded from each district. Nagaon has the maximum number of exclusions, followed by Barpeta, with Darrang, Hojai and Cachar rounding up the top five.

This is yet another example of the regime’s apathy towards the suffering of those it views as “outsiders”. Even the state government, which is formed by the same party, has a completely different set of priorities as is evidenced in its recent actions and policies like evictions amidst Covid and monsoon, to the introduction of the new cow protection bill.

Related:

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Is the Assam CM’s push for a “two-child policy” a tactic to exclude minorities?

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The Supreme Court Bench of Justices AM Khanwilkar, Ashok Bhushan, S Abdul Nazeer, BR Gavai has dismissed the review petitions challenging its 2018 Aadhar judgment, whereas Justice DY Chandrachud has dissented.

The majority judgment read, “In our opinion, no case for review of judgment and order dated 26.09.2018 is made out. We hasten to add that change in the law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review. The review petitions are accordingly dismissed.”

Justice Chandrachud dissented in light of a case related to the validity of the Finance Act, 2017 (Rojer Mathew v South Indian Bank Ltd) that held that the Aadhaar judgment did not correctly lay down the law regarding what constitutes a ‘Money Bill’ under Article 110 of the Constitution. He opined that the review petitions should be kept pending until the larger Bench decides the questions referred to in the Rojer Mathew case.

“If these review petitions are to be dismissed and the larger bench reference in Rojer Mathew were to disagree with the analysis of the majority opinion in Puttaswamy (Aadhaar-5J.), it would have serious consequences – not just for judicial discipline, but also for the ends of justice. As such, the present batch of review petitions should be kept pending until the larger bench decides the questions referred to it in Rojer Mathew. In all humility, I conclude that the constitutional principles of consistency and the rule of law would require that a decision on the Review Petitions should await the reference to the Larger Bench”, he said.

The majority judgment in the Aadhaar case was authored by Justice AK Sikri, where the Bench had read down some provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016, struck down a few and upheld the rest. On the other hand, Justice Chandrachud, in his dissent, deemed the entire Aadhaar project to be unconstitutional.

The majority opinion held that Aadhaar would be needed for availing facilities of welfare schemes and government subsidies but the mandatory use of Aadhaar based KYC for mobile connections and bank accounts was prohibited. Section 57 (Targeted Delivery of Financial and other Subsidies, Benefits and Services) of the Aadhaar Act that allowed private parties like telecom companies or other corporates to avail of the biometric Aadhaar data was also struck down as unconstitutional.

A year later in November 2019, a five-judge Constitution Bench of the Supreme Court while hearing the Rojer Mathew matter, doubted the correctness of the Aadhaar judgment primarily in relation to the question of passage of Aadhaar Act as a Money Bill and referred the matter related to the problems in the implementation of the Bills to a larger Bench.

The issue has now been laid to rest with the dismissal of the review petitions by the Supreme Court in January, 2021.

The judgment may be read here: 

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The post SC dismisses Aadhaar review petitions appeared first on SabrangIndia.

Image Courtesy: business-standard.com

After the Employee Provident Fund Organisation (EPFO) made it made it mandatory to link the Aadhaar card with individual Provident Fund accounts, a bunch of technology and back office companies turned to the government for relief, The Economic Times reported.

The companies, seeking help on the clarification of norms, approached the labour minister Suresh Kumar in Bengaluru last week, saying that the company was struggling to implement the mandate.

An executive from tech major Hewlett Packard (HP) said, “Employees are claiming that they will not give Aadhaar number for EPF as per the Supreme Court order. The EPFO, on the other hand, wants us to collect the number,” said the executive at the meeting.”

“Many of our employees are citing the SC judgment that said any such linking is optional,” he added.

In September 2018, the Supreme Court had ruled that Aadhaar wasn’t mandatory for pension schemes. The SC bench while upholding the constitutionality of the Aadhaar Act, had then said that Aadhaar can’t be made mandatory for the delivery of many public services including pension.

Last month, the Bombay HC had granted ad interim relief from prosecution to JP Morgan Services India Private Limited, after a criminal complaint by the EPFO for not sharing the Aadhaar link and bank account details of their employees.

What EPFO says

The EPFO points to a notification by the Unique Identity Authority of India (UIDAI) allowing the use of Aadhaarbased authentication for employee provident funds accounts. Additional Central PF Commissioner Pankaj Raman of the Employee Provident Fund Office (EPFO) in New Delhi cited a November 2018 notice on the matter.

Inc42 reported, in March 2018, a data breach through Employees’ Provident Fund Organisation (EPFO) also came to light via a letter circulated on Twitter. The letter titled ‘Secret’, which was addressed to the CEO of Common Service Centre, claimed that hackers exploited vulnerabilities through a government’s online website built to link Aadhar with PF account to steal data. This data breach is expected to have discouraged the employees to provide Aadhaar details to EPFO.

The way forward

A software professional, Elisha Ebenezer is also challenging the notification which has mandated linking of Aadhaar to Universal Account Number (UAN) for availing pension and provident fund benefits in the Madras High Court. He further believes that EPFO’s notification is unconstitutional and against SC directives.

While employees from tech companies said that their companies were planning to take disciplinary action against them for not linking their Aadhaar numbers with their PF accounts, it has come forth that employers are unable to contribute to a PF account as the EPFO isn’t allowing the company from creating a PF account in the absence of Aadhaar.

While companies on their part are trying to ease out things for its employees, EPFO   suggests that they would introduce a facility that will facilitate employees to create the universal account number (UAN) on their own and link it with the Aadhaar. “This will remove apprehensions among employees as they do not have to part with the Aadhaar number,” an EPFO official told ET.

The official, who did not want to be named, added that the EPFO does not keep a database of Aadhaar numbers but it is used only to authenticate the credentials of the employees on the UIDAI database.

In February this year, a five-judge constitution bench had held that while Aadhaar would remain mandatory for filing of I-T returns and allotment of Permanent Account Number (PAN), it would not be mandatory to link Aadhaar to bank accounts and telecom service providers cannot seek its linking for mobile connections.

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Linking aadhaar with election ID would disenfranchise elderly and manual labourers: ECI told
“Aadhar reduced agency in citizens and empowered those in positions of authority”
Aadhaar Verdict: SC upholds constitutional validity, assuages some privacy concerns
 
 
 

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While the Delhi High Court has asked the ECI to “consider” the plea within eight weeks, the letter states, the Act considers universal adult suffrage to Indian citizens (including non-resident Indians (NRIs) still holding an Indian passport), and Section 9 of the aadhaar Act, 2016, does not constitute proof

The letter says, “Linking of aadhaar number with voter ID would effectively be an exercise involving significant public expense and yielding no benefit whatsoever in determining the genuineness of voters”, warning that the linking would “weaken and contaminate” the Indian electoral system, even as harming the functioning of India’s democracy, as there are many instances where aadhaar IDs had been found with non-nationals.

The letter asks the ECI to recall the “disastrous outcome” of a previous exercise of aadhaar-voter ID linking conducted as part of the National Electoral Roll Purification and Authentication Program (NERPAP) in 2015, due to which at least 30 lakh voters disenfranchised. “As that exercise demonstrates, carrying out timely door-to-door verification of voters is as yet the most effective method of updating electoral rolls and ensuring accuracy of voter data,” insists the letter.

The signatories of the letter include Dalit rights leader Bezwada Wilson, politicians Brinda Karat and Yashwant Sinha, bureaucrat-turned-activist Harsh Mander, political scientist Jagdeep Chhokar, development economist Jean Dreze, actor Nandita Das, RTI activists Nikhil Dey and Venkatesh Nayak, ex-Gujarat DGP PGJ Nampoothiri, journalist P Sainath, farmers’ activist Sagar Rabari, human rights activist Shabnam Hashmi, film director Shyam Benegal, and social scientist Sukhadeo Thorat.

Text:

We are writing in reference to the Delhi High Court’s direction in Ashwini Kumar Upadhyay vs Union of India , wherein the petitioner “proposes an e-voting system using fingerprint and face biometric” and, for that purpose, linking of aadhaar number with voter ID, in response to which the Election Commission of India (ECI) is requested to consider the plea within 8 weeks.

We believe that such a consideration has much graver implications for our democracy as a whole, compelling us to share our grave concerns in this letter. At the outset, we remind the Hon’ble Commission that the Representation of People’s Act, 1951, currently limits universal adult suffrage to Indian citizens (including non-resident Indians (NRIs) still holding an Indian passport).
 

 

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It is however not clear why a employment guarantee programme like MGNREGA is considered as a DBT scheme and why  does the NREGA workers are made to link their Aadhaar numbers with their respective job cards in order to receive payments against their work.

MGNREGA payments  is neither service nor a subsidy or a benefit, it is payment against work. So, literally the MGNREGA workers are getting their  remuneration against the  work that they carry out and which is assigned by the Gram Panchayats and other  Programme implementing agencies. The question is why would then the Section 7 of the Aadhaar Act would apply on MGNREGA, which is primarily a rural job scheme which provides  a maximum  100 days of employment guarantee to every  rural household.

The second important question is that while it has been shown through different studies and surveys that the mandatory Adhaar impositions have only added to the plight of the rural workers, why does the government transfer the MGNREGA wages through a direct benefit transfer system.

While it is important that the MGNREGA wages are credited to the  bank account provided by the workers which can be easily done through mapping of job cards and bank account numbers and channelizing the wages through the  system of  electronic transfer, the  need for  Aadhaar Number to be linked to the  job card is not clear, which then makes the whole process confusing and troublesome.

The wages then get credited to the bank account linked to the  Aadhaar number and this system  creates a  never ending puzzle for the workers. It is important to mention in this context  that in the direct benefit Transfer schemes, the subsidy or the benefits get credited to the beneficiary’s bank account which is last linked to her/his  Aadhaar number.

The issues:

1)      Often the Aadhaar number of the workers are linked to other people’s bank accounts  and  as a result the wages get credited to the wrong bank accounts. The  scale of this issue is quite serious  as we can  find such issues in almost each and every  Fund transfer Orders (FTO) sheets. These mistakes can be deliberate or inadvertent but the workers finally have to suffer. These misdirected transactions make life absolutely miserable for the workers who remain clueless about the cause of such issues  and get stranded not knowing  how to deal with such problems, as centralized payments and digital mode of implementation with a real time MIS linked execution in place, the accountability mechanisms have been completely thrashed.

2)      The rural  workers who have multiple bank accounts  have  problems of a different kind. Whenever a worker produces her/ his Adhaar card  for E-KYC or in the time of opening a new bank account, the consent for adhaar linking is given by default and without the knowledge of the worker and hence their bank linking status with their adhaar number  keeps switching between different banks and the payment of wages too keeps switching between banks.  This might sound funny but in reality there is great hardship that is added to the already hassled people.  The cost involved every time people visit banks can’t also be ignored and further adds to the exploitation.

3)      A large chunk of payments get rejected referring to a mysterious reason called inactive Adhaar. It is however not very clear from the official guidelines of the government, how these transactions get rejected due to In-active Aadhaar and most importantly how does the adhaar numbers get inactive.  There are many ways the government try to explain this however the issues seem to have increased  only in the recent years. The bottom line is that such an issue occurs in case of DBT payments and  creates more confusion among workers who are then made to submit their E-KYC’s again . These are unnecessary troubles and makes NREGA more non-credible for the workers who are already troubled by  various local issues and the system at large.

4)      A lot many payments have gone to Airtel Payments bank as the Aadhaar numbers of workers got linked to the said  payments bank. Similar issues were observed in the urban areas where the LPG subsidies were going to the Airtel Payments Bank. Despite repeated assurances from the government that this problem is dealt with and that, such errors will not be repeated, one can still find  payments  which are going to the Airtel Payments Bank.

5)      Aadhaar does not help in corruption control as the  means of corruption through forged muster rolls, workers working under someone else’s  job card continue to be the basic and biggest issues of MGNREGA which  can only be addressed only through  proper ground monitoring and a decentralized mechanism of grievance redress.A mere adhaar number does not help in fixing any of those issues.

While Aadhaar based payments have only added to the suffering of the labourers and it’s implementation through  the fragile rural banking systems have only created commotion, it is high time that the government should see the ground realities which are clear as daylight.

The most important debate however is how did the government apply the section 7 of the Aadhaar Act to the payments of MGNREGA remuneration  which in no way seem to be in accordance with the guideline of the Aadhaar Act. The government must clarify it’s intentions as over centralization, technology driven implementations and Aadhaar linked payments have created a great chaos in the implementation, increased leakages  and  demolished    local accountability in the grass roots. Can we imagine our salaries being linked to the DBT considering all the hassles that it brings with it?

Courtesy: Counter View

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With two sessions still to go (the 2018 winter session and the 2019-20 budget session), the 16th Lok Sabha (2014-19) has already passed 9% more “money bills” than the 15th (2009-14). Money bills are meant to clear government expenses and taxation and are easily passed by ruling-party majority in the lower house, the Lok Sabha, instead of greater debate in and scrutiny by both houses of Parliament.

Over the years, it appears that the Lok Sabha has favoured the use of money bills; 21% more money bills were passed than ordinary bills between May 2004 and September 2018–indicating that bills have been introduced and passed solely by the Lok Sabha (Rajya Sabha can only discuss money bills, but does not need to pass them), according to our analysis of parliamentary data.

The 14th Lok Sabha (2004-09) passed 173 bills, of which 51% were money bills (89 of 173 bills).

Since the current session of the Lok Sabha was convened, it has passed 208 bills, a 20% increase since the 14th Lok Sabha. Money bills were 35% (72 of 208) of the bills passed.

Laws that took the short cut
Here are some other laws, besides Aadhaar, that took the controversial “money bill” short cut:

1) The government amended the Foreign Contributions Regulation Act (FCRA), 1976–which earlier barred political parties from receiving foreign funding–through an amendment in the Finance Bill, 2016, to permit funding of non-government organisations by foreign companies and changed the definition of “foreign companies”.

Subsequently, the government amended the FCRA again to push back the date of commencement to 1976, rendering all donations received after 1976 legitimate, The Hindu reported on February 3, 2018. This move benefits the two major political parties of India, the Indian National Congress and Bharatiya Janata Party. The parties were pulled up by the Delhi High Court in 2014 for violating the FCRA by accepting donations from the UK based Vedanta group. With this amendment, the parties have managed to evade legal issues.

2) The Finance Act, 2017,  amended the Representation of Peoples Act, 1951, and the Reserve Bank of India Act, 1934, to allow the issuance of electoral bonds from any scheduled bank to donate funds to political parties listed under Representation of Peoples Act, 1951.

Electoral bonds were introduced to encourage transparency in the way political parties are funded by ensuring a cap in payment by cash of Rs 2,000. Anything above that requires donation through electoral bonds and cheques.

The electoral bonds, similar to promissory notes, do not bear the name of the donor or any other detail by which the donor can be identified. Details of the political party encashing it can not be accessed, according to this press release by the Ministry of Finance.

Electoral bonds, along with an amendment that allows loss-making companies to donate funds to the parties, could lead to the creation of shell companies (see here and here).

3) In a move to reform existing tribunals (parallel to the traditional court systems but related to disputes on specific issues; for example, the National Green Tribunal adjudicates environmental disputes), eight tribunals were to be merged with existing tribunals.

The newly framed rules under the Finance Act, 2017, shifted the authority to appoint the heads of the tribunals to the central government. This move has evoked six separate notices from the High Courts of Gujarat, Madras, Punjab, Haryana and Bombay and the Supreme Court, as provisions in the amendment are unrelated to tax-based issues.

At least 25 out of 40 amendments introduced in the Finance Act, 2017, were unrelated to government revenue and taxation, Bloomberg-Quint reported on March 23,2017.

Why a money bills is easy to pass
An ordinary bill usually goes through three hurdles before becoming a law. In the Lok Sabha (if introduced first in the Lok Sabha), the bill is debated and amendments are suggested. After the bill is passed, it is moved to the Rajya Sabha for another round of debate and voting. The bill finally goes to the President for approval, after which it becomes an Act, or law, and is published in the official gazette.

A money bill, however, does not have to go through these processes. The Lok Sabha has the sole authority to introduce a money bill, which must be certified by the speaker as a “money bill”. Article 110 (3) of the constitution states that “if any question arises whether a bill is a money bill or not, the decision of the Speaker of the House of the People thereon shall be final”.

Once passed, the bill is handed over to the Rajya Sabha. The upper house has the bill for 14 days, and its contribution is restricted to recommending amendments, which may or may not be accepted by the Lok Sabha. In case the bill is not sent back to the Lok Sabha in 14 days, the bill is deemed passed by both houses.

In the cases of the Finance Act 2017 and the Aadhaar Act 2016, recommendations that were suggested by the Rajya Sabha on March 29, 2017 and March 16, 2016, respectively were rejected by the Lok Sabha both times.
“Bicameralism is a founding value of our democracy,” said Justice Chandrachud in his judgment.

Invoking the Constitution, his judgement–which dissented with the majority opinion by Chief Justice Dipak Misra, Justices AM Khanwilkar, AS Sikri and Ashok Bhushan–criticised the introduction and passing of the Aadhaar Bill as a money bill, as it did not qualify as a money bill under Article 110 (1) of the constitution, making it “plainly unconstitutional”.

“The Lok Sabha is not entrusted with the entire authority of Parliament. The Lok Sabha, the Rajya Sabha and the President together constitute the Parliament of India,” his judgement further said.

In the 2018 budget session, the Lok Sabha passed two bills and 218 amendments without debate in thirty minutes on March 13, 2018, after the Speaker exercised the ‘guillotine’, which refers to voting on tabled bills and amendments by a voice vote without debate, IndiaSpend reported on March 14, 2018. Both bills were money bills–the Finance Bill, 2018, and the Appropriation Bill, 2018–and less than a second was spent on each matter tabled to be discussed.

The final stage in the passing of a money bill is the assent of the President. While the Constitution does not allow the money bill to be sent back to the lower house by the President, the assent to a money bill can be withheld by the President. Even as 72 money bills have been passed by the current Lok Sabha, only 62 have been accepted by the President.

The Aadhaar judgement noted previous instances where a money bill was considered exempt from judicial review.
The certification of a bill as a money bill is not just a matter of procedure in Parliament, the Court observed. If any illegality was detected and if the decision had breached constitutional provisions, then the decision (of the Speaker) is subject to judicial review, the court declared.

(Chhetri, a graduate of Lady Shri Ram College for Women, is an intern with IndiaSpend.)

Courtesy: India Spend
 

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