Why did the Government pass the Aadhaar Ordinance?

Last Updated at: Dec 23, 2020
Why did the Government pass the Aadhaar Ordinance?

These days, there is a lot of buzz going on about the Aadhaar Act. You might be confused why the government had to pass the Aadhaar ordinance. Well, you will get the necessary details you want to know about the same from here to get clarity and understand about the same.

The Aadhaar judgment passed in 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.

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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 judgment also declared the usage of Aadhaar numbers by private entities as unconstitutional.

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The Aadhaar (Amendment) Bill introduced in January 2019

Post this, 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 promulgated in 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 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. We need to get more information from the government in the coming months for a better understanding.

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