Tuesday, 28 February 2017

Aadhaar as money bill

Aadhaar as money bill

What exactly is a money bill?

 FEBRUARY 27, 2017 

Or, why we need to reconsider the Aadhaar Act, with all its implications for privacy

The Supreme Court will begin hearing final arguments next month on a writ petition challenging the validity of the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 — or the Aadhaar Act. The proceeding, initiated by Jairam Ramesh, a Member of Parliament in the Rajya Sabha, primarily questions the legality behind the Union government’s move in introducing the Aadhaar Act as a money bill. Through this categorisation, the government had the law enacted by securing a simple majority in the Lok Sabha while rendering redundant any opposition to the legislation in the Upper House of Parliament.

Imperils liberties

During preliminary hearings, the Supreme Court has suggested that it isn’t entirely convinced of the merits of Mr. Ramesh’s petition. But a closer examination will only show that the introduction of the Aadhaar Act as a money bill contravenes the bare text of the Constitution. In this case, the breach is particularly disturbing, because the legislation imperils our core liberties, in manners both explicit and insidious.
Originally, Aadhaar was conceived as a scheme to provide to every Indian a unique identity number, with a purported view to enabling a fair and equitable distribution of benefits and subsidies. There is little doubt that the scheme’s introduction, with no prior legislative backing, was a flagrant wrong, and was completely unjustifiable as a measure of democratic governance. For this Mr. Ramesh’s party, the Congress, must take full responsibility. But, when a draft of a statute was eventually introduced in the Rajya Sabha, in December 2010, it was done so as an ordinary bill. This meant that both Houses of Parliament had to provide their imprimatur to the bill for it to become law.

Nonetheless this draft legislation contained serious misgivings, so much so that a parliamentary standing committee released a detailed report differing with the government of the time over critical aspects of the bill, particularly its treatment of concerns over privacy and protection of data security. In the meantime, given that the Aadhaar project was being implemented even without statutory support, public interest petitions were filed in the Supreme Court challenging the project’s legitimacy. In these cases, the court issued a series of interim orders prohibiting the state from making Aadhaar mandatory, while permitting its use only for a set of limited governmental schemes.
In March 2016, the Union government withdrew the earlier bill, and introduced, in its place, as a money bill, a new draft legislation, titled the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Bill, 2016. This categorisation was extraordinary because a money bill, under India’s constitutional design, requires only the Lok Sabha’s affirmation for it to turn into law. Right on cue, within days of the bill’s introduction, the Lower House, in complete disregard of the Rajya Sabha’s protestations, passed the legislation, as Act No. 18 of 2016. This law, Mr. Ramesh now argues, is patently illegal, because its classification as a money bill infringes the Constitution’s mandates.
A money bill is defined by Article 110 of the Constitution, as a draft law that contains only provisions that deal with all or any of the matters listed therein. These comprise a set of seven features, broadly including items such as the imposition or regulation of a tax; the regulation of the borrowing of money by the Government of India; the withdrawal of money from the Consolidated Fund of India; and so forth. In the event a proposed legislation contains other features, ones that are not merely incidental to the items specifically outlined, such a draft law cannot be classified as a money bill. Article 110 further clarifies that in cases where a dispute arises over whether a bill is a money bill or not, the Lok Sabha Speaker’s decision on the issue shall be considered final.

Flawed counterpoint

The government’s response to Mr. Ramesh’s claim is predicated on two prongs: that the Speaker’s decision to classify a draft legislation as a money bill is immune from judicial review, and that, in any event, the Aadhaar Bill fulfilled all the constitutional requirements of a money bill. A careful examination of these arguments will, however, show us that the government is wrong on both counts.
 To be fair, the assertion that the Speaker’s decision is beyond judicial review finds support in the Supreme Court’s judgment in Mohd. Saeed Siddiqui v. State of UP(2014). Here, a three-judge bench had ruled, in the context of State legislatures, that a Speaker’s decision to classify a draft statute as a money bill, was not judicially reviewable, even if the classification was incorrect. This is because the error in question, the court ruled, constituted nothing more than a mere procedural irregularity.
But there are significant problems with this view. Chief among them is the wording of Article 110, which vests no unbridled discretion in the Speaker. The provision requires that a bill conform to the criteria prescribed in it for it to be classified as a money bill. Where a bill intends to legislate on matters beyond the features delineated in Article 110, it must be treated as an ordinary draft statute. Any violation of this mandate has to be seen, therefore, as a substantive constitutional error, something which Siddiqui fails to do.
There are other flaws too in the judgment. Most notably, it brushes aside the verdict of a Constitution Bench in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha(2007), where the court had ruled that clauses that attach finality to a determination of an issue do not altogether oust the court’s jurisdiction. That is, the bench held, there are numerous circumstances where the court can review parliamentary pronouncements. These would include instances where a Speaker’s choice is grossly illegal, or disregards basic constitutional mandates, or, worse still, where the Speaker’s decision is riddled with perversities, or is arrived at through dishonest intentions.

What Aadhaar Act shows

A simple reading of the Aadhaar Act would show us that its contents go far beyond the features enumerated in Article 110. If anything, it is the provisions in the legislation that pertain to the Consolidated Fund and its use that are incidental to the Act’s core purpose — which, quite evidently, is to ensure, among other things, the creation of a framework for maintaining a central database of biometric information collected from citizens. Ordinarily, a draft legislation is classified as a money bill when it provides for funds to be made available to the executive to carry out specific tasks. In the case of the Aadhaar Act, such provisions are manifestly absent. The Speaker’s decision to confirm the government’s classification is, therefore, an error that is not merely procedural in nature but one that constitutes, in substance, an unmitigated flouting of Article 110.
In many ways, Aadhaar has brought out to plain sight the worryingly totalitarian impulses of our state. The government has argued, with some force, that Indian citizens possess no fundamental right to privacy. This argument, however, is predicated on judgments of the Supreme Court that have little contemporary relevance, and that have, in any event, been overlooked in several subsequent cases where the court has clarified the extent of the liberties that the Constitution guarantees.

Right to privacy

Privacy is important not merely because it advances the cause of equality and freedom but also because it is, in and of itself, a treasurable value. A failure to protect privacy adequately can have disastrous consequences that affect our abilities to determine for ourselves how we want to live our lives. And the Aadhaar Act hits at the core of this value. It permits the creation of a database of not only biometric information but also various other private data, without so much as bothering about safeguards that need to be installed to ensure their security. We scarcely need to stretch our imaginations to wonder what the government — and other agencies to which this information can be shared without any regulatory checks — can do with all this material.
That a statute so pernicious in its breadth can be enacted after being introduced as a money bill only makes matters worse. It has the effect of negating altogether the Rajya Sabha’s legislative role, making, in the process, a mockery of our democracy. It is imperative, therefore, that the court refers the present controversy to a larger bench, with a view to overruling Siddiqui.
Suhrith Parthasarathy is an advocate practising at the Madras High Court


Aadhaar as money bill: If Speaker is wrong, court can set it right, says SC

The bill was passed during the Budget session in 2016 after overruling the amendments moved in Rajya Sabha.

Written by Utkarsh Anand | New Delhi | Published:February 14, 2017
EVEN AS it acknowledged the authority of the Speaker in a Parliamentary democracy, the Supreme Court Monday said the court would not hesitate to correct a Speaker if he says “blue is green”. The court was hearing a PIL filed by Congress leader Jairam Ramesh, who had challenged the Speaker’s decision to treat the Aadhaar bill as a money bill. The bill was passed during the Budget session in 2016 after overruling the amendments moved in Rajya Sabha.
“Yes, we have identified the role and authority of the Speaker. But if the Speaker says blue is green, we will ask the Speaker to say it is blue…that we will set right,” said a bench led by Chief Justice of India J S Khehar. The bench, also comprising Justice N V Ramana, added: “When we go wrong, larger benches set aside our orders and correct it. So why cannot we do it (vis a vis Speaker)?”

Representing Ramesh, senior lawyer and a former minister in the UPA government P Chidambaram said that Aadhaar, by no standard, could be certified by the Speaker as a money bill since it did not meet the conditions of Article 110(1) of the Constitution. “On the face of it, we can show that it cannot be called a money bill. The conditions are clear that a bill can be certified as a money bill if it contains ‘only’ such provisions that deal with the aspects mentioned under Article 110,” argued Chidambaram.

He said that there was an apprehension that any bill could be certified as a money bill to dispense with the need to seek majority in the Rajya Sabha since a money bill could very well be passed by the Lok Sabha itself. Dealing with the previous judgments of the apex court, Chidambaram contended that power of judicial review was not curtailed in cases of substantive infraction of the provisions of the law and that the decision of the Speaker could be deemed to be final only in cases of procedural irregularities. “This court has held that if there are unconstitutionality and substantive infractions, decision of the Speaker could also be judicially reviewed,” he said.
Countering his views, Attorney General Mukul Rohatgi said that judgments have held that the court had no power to sit in appeal over the decisions of the Speaker and that proceedings inside the House were immune. “The Speaker is a high constitutional functionary. It cannot be argued that the Speaker would certify all bills as money bills. There is no question of this court examining the Speaker’s decision,” said Rohatgi.
Disagreeing with the AG’s argument, the bench retorted that it appreciated the Speaker’s peculiar position in the parliamentary democracy but the court also had the power to correct his decisions if they were brazenly wrong. At this, Rohatgi said that Aadhaar was passed as a money bill since it had to withdraw money from the consolidated fund of India. “Under Article 110(1), there is a provision that a bill can be passed as a money bill if its deals with provisions ‘incidental’ to the other essential conditions,” he said.

The bench, on its part, accepted the AG’s argument to some extent and told Chidambaram that he would have to convince the court why they should interfere with the Speaker’s decision. “Tentatively, we are not with you but you can definitely convince us on the next date,” said the bench, adjourning the matter for four weeks. A Constitution Bench is expected to sit during the summer vacation in May-June to adjudicate a clutch of petition on the validity of Aadhaar, especially in view of the concerned regarding right to privacy.

Is the Aadhaar Bill a Money Bill?

  MAY 10, 2016

We take look at what a Money Bill is and why the government has pushed the Aadhaar Bill through it.
What is a Money Bill?
A Money Bill is one that contains provisions for taxes, appropriation of funds etc. Money Bills can be introduced only in the Lok Sabha, and the Rajya Sabha cannot make amendments to such bills passed by the Lok Sabha. The Rajya Sabha can suggest amendments, but it is the Lok Sabha’s choice to accept or reject them.
How is Aadhaar connected?
The NDA government chose to introduce the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 as a Money Bill. The Lok Sabha >cleared the Bill and passed it to the Rajya Sabha.
While the NDA has a majority in the Lok Sabha, it does not in the Rajya Sabha. This led to intense debates in the Upper House, led by Congress leader Jairam Ramesh. The House >recommended several amendments to the Bill, which was passed with a majority in the House.
What was the Opposition about?
The Opposition’s main concern was with the usage of Aadhaar data to>facilitate mass surveillance . Originally, the Aadhaar project was supposed to be voluntary, but this Bill makes enrolment compuslory. The Bill contains a blanket ‘national security’ clause, a clause bound to induce misuse.
What happened next?
Parliament >passed the Aadhaar Bill , even as debates raged in both Houses. “I am questioning the competence of this House to legislate the Bill,” Sitaram Yechury of the CPI(M) said, arguing that the Bill was also being considered by the Supreme Court and was beyond “the legislative authority” of the House.
What now?
Mr. Ramesh then moved the Supreme Court >challenging the treatment of the Aadhaar Bill as a Money Bill. Earlier, Finance Minister Arun Jaitley, who moved the Bill and piloted them in both the Houses, had turned down the Opposition argument that Parliament cannot legislate as the matter is before the Supreme Court.

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