Last week, the Honourable Supreme Court of India delivered the verdict on Aadhaar. As a sequel to this, all political parties are claiming victory. Indeed, the two parties which have been at the helm of power in the Centre have been associated with the introduction of this.
Position under UPA - MNIC and Aadhaar
The UPA Government had introduced Aadhaar and they gave it teeth through a non-statutory executive order. In the beginning, it was placed under the Planning Commission. Concurrently, the Ministry of Home Affairs (MHA) under P Chidambaram had introduced a Multipurpose National Identity Card (MNIC) project. This was being implemented by the office of Registrar General of India, an attached office under the MHA mandated with the decadal census of the country.
Hence, there was duplication of efforts. Chidambaram had introduced this project as one of the counter-measures in the aftermath of the 26/11 Mumbai attacks. Hence, capturing the data on citizens was one of the salient concerns of the government. Hence, why were two initiatives which could have been synergised and saved a lot of money to the Exchequer were being introduced and implemented like parallel lines are not known. The government of the day does need to answer this.
Overzealousness in implementing Aadhaar
As a member of Internal Security team, I had attended a meeting in the Ministry of Information Technology in December 2009. It was a large group from various ministries and regulatory bodies. Basically, the discussion was on the mapping the citizen's identity to trace banking transactions, including money laundering and terror funding which was our mandate.
I had expressed the position on the efficacy of regulation of Western Union, through which money for terror funding was being remitted to their Indian foot soldiers. I therefore emphasised on enabling the data-sharing of Aadhaar with the Multi Agency Centre (MAC) for intelligence gathering on terrorism, which was established with hype by P Chidambaram immediately upon taking over as Home Minister. Although my observations were taken on record as per the minutes of the meeting, little effect was given to these observations. Mr RS Sharma, who was pioneering Aadhaar, appeared too excited with setting up a framework and using it with populist schemes like MNREGA, etc. Lateral spinoffs for securing the nation were last on their minds.
NDA and Aadhaar - Legal teeth
After the swearing in of the new regime in 2014, the government gave Aadhaar legal teeth by reinforcing through legislation. The government's emphasis on government-to-citizen transfer of its citizen intended benefits to close the hitherto pitfalls of siphoning of funds was the overriding priority. These are well captured in the bill. Since this was sought to be an instrument for transfer of funds from the Consolidated Fund of India, it came under the purview of Money Bill as defined in the Article 110 of the Indian Constitution. Hence, they brought the bill as a money bill, which has been upheld by Supreme Court of India.
Enabling interagency sharing of data with safeguards
But the issue of sharing of this for intelligence gathering and internal security purposes were sidelined. Although enabling provisions which were incorporated in the Act have been set aside, the Government did not make it fail safe itself to sustain the judicial scrutiny. A more comprehensive provision of Sector 57 with adequate safeguards against misuse for purposes other than security or state agenda should have been there. Maybe that would have saved this section in a judicial scrutiny.
Money bill upheld
But what is more salient is the content of the petition itself. In the averments of the petitioner challenged the introduction of the bill as a money bill, then their agitating on the issue of privacy was not sustainable. The government in power does have the mandate and power to bring in instrumentalities to implement its citizen centric schemes and collect data relating the beneficiary for this purpose and cross sharing of such data with different agencies of the state. There was no issue of privacy involved in this. Hence their agitating the issue of privacy again I believe was unfounded. Hence the money bill character of Aadhaar was sure to be upheld because by virtue of its objects that it was to establish an instrument of beneficent delivery by the state.
Securing the nation sidestepped
Having said that notwithstanding this, the latent impact of this is that now there will be restrictions of cross-sharing of data even among different state agencies suo moto and covertly. This gets hit. Now attendant rules will be framed to enable a prior permission from the Aadhaar holder, akin to the RTI Act. Let us appreciate that this may adversely affect any initiative regarding suspicious transactions, laundering of money, holding proceeds of crime and terror and terror funding. The agencies may be constrained. Or such information, even if shared, cannot be arraigned as evidence in criminal prosecutions, unless a prior permission provision is brought out in the rules and the accused citizen accords permission. There also, this permission, if enabled by the government, will again be under scrutiny under the Criminal Procedure Code (CrPC) in case it is used in a trial.
This impairing of criminal investigation, I am sure, was not the agenda hidden under the privacy argument. The petitioner will have to answer this.
(RVS Mani is a former Central government officer who shot to prominence as a whistleblower in 2009, when he alleged he had been forced to sign documents that fabricated a narrative of 'Saffron Terror'. His book, 'Hindu Terror: Insider Account of Ministry of Home Affairs', was released recently.)
(Disclaimer: The opinions expressed above are the personal views of the author and do not reflect the views of ZMCL.)