Dubious tactics

Print edition : April 15, 2016

November 30, 2012: The BJP delegation comprising L.K. Advani, Sushma Swaraj, Arun Jaitley, Mukhtar Abbas Naqvi, Balbir Punj and R. Ramakrishna, after submitting a memorandum to the Election Commission on the alleged violation of the model code of conduct by the Congress by announcing Aadhaar-based direct cash transfers. Photo: V. Sudershan

The modus operandi used to introduce the Aadhaar Bill, 2016, has serious implications for the future of Indian democracy.

THE passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016, in the Budget session of Parliament and the strange trajectory it charted through the Lok Sabha and the Rajya Sabha mark a new low in the parliamentary history of India. The unprecedented debasement of legislative practice has grave implications for the country as a whole and its polity in particular. Primarily, the Aadhaar Bill, 2016, and the way it was manoeuvred through the two Houses make a mockery of well-laid-out and time-tested legislative procedures. The legislative manoeuvres, which took the form of depicting a normal Bill as a money Bill undermined the prestige and role of the Rajya Sabha, which is the embodiment of the States in the Central legislature since its members are elected by the State legislatures. Secondly, it signified the extension of a duplicitous political tactic employed by the Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) government in the past one and a half years to undermine the functioning of various constitutional and autonomous institutions. Thirdly, the provisions of the Bill contained clauses that have the potential to curtail and even restrict the rights of privacy of every citizen, which in turn is bound to impact the rights to liberty and freedom of expression of the people as a whole. In short, the passage of the Bill, including the manoeuvres adopted for it, has set a bad precedent with dangerous portents for Indian democracy.

A close inspection of the implications of the Aadhaar Bill, 2016, will have to begin from the very first attempt to introduce “Aadhaar”, or the unique identification (UID) number, covering all residents of India on the basis of biometric and demographic parameters and data. The legislative exercise for this was originally initiated in December 2010 by the Congress-led United Progressive Alliance (UPA) government, when it moved the National Identification Authority of India Bill, 2010, in Parliament. The UPA government had highlighted this as a significant step to build up a central identities data repository, which would be used to provide authentication services of every resident of the country. The UPA government had also argued that the basic objective of the initiative was to facilitate better management of the transfer of government funds to its beneficiaries, especially in areas such as subsidies, pensions and scholarships. It also argued that such transfer of government funds had been traditionally plagued by pilferage, diversion and duplication and that the UID would once and for all settle these problems.

However, these claims were contested at various levels such as potential efficacy of the project on the grounds of infringement of privacy that the collection and storage of individual demographic and biometric data entailed. These objections were voiced by the opposition, of which the BJP was an important constituent, and social activists. The 2010 Bill also faced stiff resistance from the Parliamentary Standing Committee on Finance led by former BJP Finance Minister Yashwant Sinha. The deliberations at the committee questioned the very basis of the UID project. The merits of the project and the functioning of the special body formed to take it forward (the UIDAI, or Unique Identification Authority of India) were challenged by the then Planning Commission. Social activists took their opposition to Aadhaar 2010 to the judiciary. Their initiatives resulted in a Supreme Court order in 2013 making it clear that Aadhaar could not be made mandatory to receive the benefits it was expected to facilitate. Issues relating to privacy also came up before the judiciary and in 2015, the Supreme Court referred these to a larger bench. In the process, Aadhaar 2010 made no progress at the level of legislation in Parliament.

It is in the background of this parliamentary stasis that the Aadhaar Bill made its “new avatar” in March 2016. The BJP and its allies, which had opposed various key aspects of the UID in different fora, including the Parliamentary Standing Committee when they were in the opposition, came to power with a thumping majority in 2014. The BJP-NDA government’s track record in its first 20 months had nothing to write home about. The wide gap between the tall promises on overall development and the abject failure on the ground had resulted in repeated and massive electoral losses in Bihar and Delhi. It was in this context that the leader of the ruling coalition as also other constituent parties acquired a new drive and urgency to “transfer government subsidies and other funds directly to the beneficiaries”.

Issues relating to national security, including direct action using the security agencies against students and others on charges of sedition on the one side and a debate on nationalism versus sedition on the other, were being pursued by the BJP government along with its ideological conglomerate, the larger Rashtriya Swayamsewak Sangh (RSS)-led Sangh Parivar, following the conspicuous failures of the government to fulfil its promises. Opinion did the rounds in a number of security agencies that this diversionary ploy in the name of sedition would have intended efficacy only with sharper teeth. And this sharper teeth could be built up only if there was greater access to private information regarding individuals, both targeted by this drive and otherwise.

By any yardstick, these political considerations had a big role in the creation and presentation of the Aadhaar Bill, 2016, in Parliament. But in bringing it to Parliament, the leadership of the BJP, particularly the triumvirate of Prime Minister Narendra Modi, Finance Minister Arun Jaitley and party president Amit Shah, devised a special ploy taking into consideration the roadblocks faced by the Aadhaar Bill, 2010, as also the experience of their own government in the first 20 months. The Modi government has failed to get two of its pet pieces of legislation—the Land Acquisition (Amendment) Bill and the Goods and Services Tax (Amendment) Bill—passed despite repeated attempts. This was essentially because its lacks a majority in the Rajya Sabha.

The new ploy manifested itself as the conversion of what should have been a normal Bill into a money Bill. There were several concrete indications, as early as August 2015, to show that the BJP leadership, particularly Jaitley, was planning to resort to this course to get over the NDA’s lack of majority in the Upper House. Speaking at a couple of functions organised by business and industry bodies in August 2015, Jaitley had said that “the government is looking at the option of obtaining legislative approval for some of the key reform Bills by framing them as “money Bills”. He had made a reference to the stalemate in Parliament during that period and asserted that if the “stalemate continues, then a lot of legislation would have to be framed as money Bills”. He also went on to argue that the time had come to discuss the question as “to what extent can the indirectly elected House hold reform proposals passed by the directly elected house, which represents the will of the people”. The intent to marginalise the Rajya Sabha was evident from that period itself and clearly the passage of Aadhaar 2016 as a money Bill marked the beginning of this well-thought- out ploy.

In any parliamentary system, a money Bill is one that entails withdrawing, paying and appropriating finances from the consolidated funds of a country. In India, the defining provision for the money Bill is Article 110 of the Constitution. Article 110 states that if a Bill contains anything beyond financial dealings relating to the consolidated funds of India, then it has to be a normal Bill. The very concept of the UID as enunciated in the Aadhaar Bills of 2010 and 2016 does have matters beyond financial dealings from the consolidated funds of India. However, Article 110 also contains a clause ‘g’, which states that any matter incidental to financial dealings from the consolidated funds of India could also be brought under the purview of a money Bill. The Modi government took recourse to this in branding Aadhaar 2016 as a money Bill. The argument, specifically, was that Aadhaar was essentially devised to transfer funds to beneficiaries and hence the machinery employed for that would also come under the purview of a money Bill. Article 110 also states that in case of a dispute on the character of a Bill, whether it is a normal Bill or a money Bill, the decision of the Lok Sabha Speaker will be final.

With the representation of the Aadhaar 2016 Bill as a money Bill, the government did away with a clutch of “irritating” legislative requirements in a single stroke. A normal Bill needs to be referred to the Standing Committee of Parliament, the committee will have a series of deliberations and will prepare a report, this too would be discussed in Parliament, and finally the Bill will have to be passed by both Houses of Parliament. But brand the Bill as a money Bill, the reference to the Standing Committee as well as the wider discussion that it will entail, can be bypassed. More importantly, the Rajya Sabha cannot reject a money Bill. It can only suggest amendments, which may or may not be accepted by the Lok Sabha. The arguments put forth by Jaitley while describing the Aadhaar 2016 Bill as a money Bill were based on Article 110 and they went as follows: “If the principle purposes that money spent out of the Consolidated Fund of India has to be spent in a particular manner and a machinery is created for spending that money, then Article 110 (C) read with article 110 (G) i.e spending money out of the Consolidated Fund of India and any other matter incidental thereto, the machinery created in a manner which is incidental thereto, that is why it is a money Bill.”

He also emphasised that once the Lok Sabha Speaker was satisfied and said, “I certify, it is a money Bill, this money Bill is then transmitted to this House”, it would be a money Bill and no authority in the country would question this provision.

Sitaram Yechury, general secretary of the Communist Party of India (Marxist) and Rajya Sabha member, who was among the first to question the “money Bill” character of the legislation, told Frontline that “what was a ‘money Bill’ was defined in Article 110(1), in subsections ‘a’ to ‘g’.” Article 110 (2) lists out what cannot be a money Bill and then there is Article 110(3), which says that in case of a dispute, the Speaker’s decision will be final.

“But this right vested in the Speaker is not an absolute right. It is a discretion circumscribed by the Constitution. This power vested in the Speaker cannot override the definition of a money Bill provided in Article 110(1) and (2).”

The Speaker, he said, had exercised this authority at the behest of the ruling party ignoring the provisos on the definition of a money Bill in the Constitution. Taking the argument further, former Union Minister and Congress leader S. Jairam Ramesh said it was relevant to note that Article 110 (1) categorically stated that a Bill would be deemed to be a money Bill if it contained only provisions dealing with all or any of the matters enumerated in (a) to (g). The present Bill was, in effect, an ordinary law creating a substantive legislative platform for the Aadhaar scheme and introduced for the first time offences and penalties by way of imprisonment of up to three years as well as a fine.

“Therefore, in its pith and substance, this is not a money Bill,” he told Frontline. He also pointed out that in general all Bills would require money, which may have to come from the Consolidated Fund of India. “For the said purpose, a separate appropriation may be necessary as the money from the Consolidated Fund of India can be spent on appropriation. In the present case, the same can be achieved by budgetary provisions and appropriation. To circumvent the same would defeat the basic feature of the democratic process as envisaged by the Constitution. The scheme of Article 79 and 81 is to ensure the functioning of the two Houses, namely the Council of States to particularly safeguard the interests of various States and the House of People. Both Houses represent the people.”

Five amendments

These argumentations did come up in the Rajya Sabha, and the Upper House made five amendments to the Aadhaar Bill passed by the Lok Sabha. Overriding the amendments, the Lok Sabha passed the Bill in its original form. With this, the UID project, which was first moved by the UPA, acquired statutory status, and the larger questions raised in the judiciary about the UID and its implementation, including the concerns about privacy and freedom, have been pushed back. Jaitley did address the issue in passing during his interventions in Parliament and he did not hide the intent of the government.

“The government pre-supposes privacy as a fundamental right, even though no such right exists in law. Privacy is not an absolute right. The Supreme Court is considering the privacy issue. It is subject to a restriction; it can be restricted by a procedure established by law,” he said while claiming that the Aadhaar Bill, 2016, had tightened privacy provisions compared to the legislation introduced by the previous government.

Speaking on this aspect, Yechury pointed out that the CPI(M) and other Left parties were opposed to the very idea of Aadhaar as a means to target subsidies and the mapping of citizens by the use of biometrics. “Information involving biometrics and scope for DNA profiling may be made available to different agencies in the name of ‘national security’. The term national security is a nebulous definition. Modern history experienced the lethal consequences of definitions of ‘national security’, which in extreme cases saw state-sponsored victimisation of groups of bona fide citizens under the bogey of ‘national security’. An extreme example is the purge of Jews under Hitlerite fascism.

Closer home, many of the current leaders in Parliament today were victims of the notorious Maintenance of Internal Security Act (MISA), which was wilfully misused during the Emergency. There weren’t any redress avenues as well under the present legislation and in fact there was a provision that new types of personal information may be collected from time to time under the rules yet to be defined. How are cases of sedition registered against students of universities? How is someone labelled anti-national? What will be added later and who will it be shared with? These are matters that are serious encroachments to privacy. Such sweeping powers vested in the government are detrimental to the fundamental foundations of democracy laid down by the Constitution,” Yechury said.

Evidently, as Jaitley suggested while commenting on privacy, these concerns do not figure in the political project of the BJP and its associates in the Sangh Parivar.

This political priority adds to the sense of foreboding generated by the precedent set by the Aadhaar Bill, 2016, in terms of both its passage and the modus operandi employed for it. Jaitley’s statements show that the money Bill route is bound to be a regular feature with this government. The positioning is clear. The people may defeat the BJP and the NDA in election after election in the State Assemblies and the BJP–NDA’s numbers may not rise significantly in the Rajya Sabha but it will still continue to legislate and administer as it wants. Indian democracy is well on its way to an unprecedentedly devious and ominous road ahead.

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