In this article, we will try to rationalise why the government of India pushed the Aadhaar Ordinance into effect and what are the ramifications of this move
The Aadhaar roll-out had been in the offing for several years prior to its implementation in 2016-17. The implementation was done on a wide and simultaneous scale with constant reminders of the negative repercussions of not getting enrolled under the Aadhaar scheme. But the truth of the matter was that the requirement of a national database with unique personal identification of the residents of India has been a necessity rather than a welfare scheme. Government IDs issued for various purposes were incidentally being used as identity cards and these cards were quite easily forgeable. In this article we will speculate as to the reasons for the government’s momentous push to get the Aadhaar ordinance implemented.
The Aadhaar Judgement – September 2018
To give you some context, the Supreme Court (“SC”) struck down a few provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“Aadhaar Act”), last year in the month of the September in the case of Justice K S Puttaswamy and another v. Union of India and others.
In this case, SC unambiguously declared that the Aadhaar Act did not meet the necessary requirements to have been certified as a money bill under the provisions of the Constitution of India, 1949 (“Constitution”).
While deciding on the above issue, the SC observed that the decision of the speaker of the Lok Sabha to certify a bill as a money bill has a direct impact on the role of Rajya Sabha, since the latter has a limited role in the passing of a money bill. A decision of the speaker of Lok Sabha to declare an ordinary bill to be a money bill limits the role of Rajya Sabha.
Further, the SC re-emphasised that, the power of the speaker cannot be exercised arbitrarily in violation of constitutional norms and values since it would damage the essence of our constitution.
This judgement also declared the usage of Aadhaar numbers by private entities as unconstitutional.
The Aadhaar (Amendment) Bill Introduced In January 2019
Post the judgement, Mr Ravi Shankar Prasad, the Minister of Law and Justice, and Electronics and Information Technology introduced The Aadhaar and Other Laws (Amendment) Bill, 2018 (“Aadhaar Amendment Bill”) in Lok Sabha on January 2, 2019.
The Aadhaar Amendment Bill provided for voluntary use of Aadhaar number by a user for the purpose of identifying himself/herself, by authentication or offline verification.
The Aadhaar Ordinance – February 2019
The Union Cabinet approved the promulgation of Aadhaar and Other Laws (Amendment) Ordinance, 2019 (“Aadhaar Ordinance”). Further, such press release noted that the Rajya Sabha got adjourned sine die before this Aadhaar Amendment Bill could be taken up for consideration in Rajya Sabha.
But, what does a “promulgation” of an ordinance mean? In general “promulgation” refers to the formal declaration of law. Let us see the basic provisions in the Constitution on ordinance-making the power of the President.
Article 123 of the Constitution states that the President may promulgate an ordinance if he/she is satisfied that the circumstances render it necessary for him/her to take immediate action. Further, the ordinance can be promulgated when both houses of the Parliament, i.e., Lok Sabha and Rajya Sabha are not in session.
In essence, the promulgation of an ordinance is an exercise of lawmaking power of the President. But, it is to be noted that, while the ordinance is promulgated in the name of the President, it is in fact promulgated on the advice of the council of ministers.
The basic premise of promulgating an ordinance is to understand how necessary it was to pass this ordinance.
In the past, SC has held that the President’s decision could be challenged on the ground that “immediate action” was not required. The ordinance could also be challenged to bypass the discussion and debate in the legislature.
Thus, with the SC’s ruling last year, there seems to be no ambiguity that the act of collecting aadhaar number by private entities without consent is unconstitutional. The intention behind introducing the Aadhaar ordinance in February lacks clarity, especially when all the parties are gearing up for general elections.
While there is a lot of chaos regarding the same, the latest Supreme Court ruling declared in 2018 shows that it is unconstitutional to let private entities collect Aadhaar numbers. But the intention behind the Aadhaar ordinance is still missing out on clarity.
Conclusion
The dossier issued by the Unique Identification Authority of India (UIDAI) speaks in detail about the benefits and the future vision of the Aadhaar scheme. It is, of course, left to be seen if these benefits are actually implemented in a foolproof and efficient manner or just remain on paper as a positive policy matter that is entangled in procedural red tape. As of now, the biggest advantage of Aadhaar is its cross functionality in applying for government schemes and IDs and in general being used as a single commonly accepted identification. If you have any other queries with regards to Aadhaar or have any other legal or regulatory requirements, get in touch with us and our team of experts will be happy to assist you with the same.
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