This article is written by Shubhra Baghel & Saina Sonali Mohapatra of The West Bengal National University of Juridical Sciences, Kolkata. The article discusses the unexplored problems in the Aadhaar Act, 2016.
Abstract
The present article challenges the vires of Section 6, 23(2)(f), 23(2)(g), 31(3) and 54(2)(e) of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (hereinafter “the Act’’). The pending Aadhaar case in the Hon’ble Supreme Court does not talk about these provisions. The aforesaid provisions of the Act are ultra vires of the Constitution of India because the said provisions are hit by excessive delegation which grants unguided discretion and power to the Unique Identification Authority of India (hereinafter “the Authority”). Also, a bare perusal of the said provisions would reveal a lack of clear legislative policy or guideline to the Authority for exercising its power to update/deactivate Aadhaar Numbers of various residents under the Act. In accordance with the Statement of Object and Reasons of the Act, it was imperative on the part of the Legislature to provide adequate time frames and checks for the update process instead of leaving it to the sole discretion of the Authority. Moreover, the said provisions have provided an increased scope for executive inaction/error for which rights of the citizens under Article 14, 15, 19 and 21 are under a high risk of getting violated. Thus under the doctrine of proportionality and arbitrariness, the said provisions are hit by Article 14 of the Constitution of India.
1. Problems in the Aadhaar Act, 2016
The Act provides excessive powers to the Unique Identification Authority of India (hereinafter “the Authority”) to update the biometric and demographic data of an individual under sections 6, 23(2)(f), (23(2)(g), 31 and 54(2)(e). The said provisions read as under:
“Section 6.Update of certain information.
The Authority may require Aadhaar number holders to update their demographic information and biometric information, from time to time, in such manner as may be specified by regulations, so as to ensure continued accuracy of their information in the Central Identities Data Repository.
Section 23. Powers and functions of Authority.
(f) maintaining and updating the information of individuals in the Central Identities Data Repository in such manner as may be specified by regulations.
(g) omitting and deactivating of an Aadhaar number and information relating thereto in such manner as may be specified by regulations.
Section 31. Alteration of demographic information or biometric information.
(1) In case any demographic information of an Aadhaar number holder is found incorrect or changes subsequently, the Aadhaar number holder shall request the Authority to alter such demographic information in his record in the Central Identities Data Repository in such manner as may be specified by regulations.
(2) In case any biometric information of Aadhaar number holder is lost or changes subsequently for any reason, the Aadhaar number holder shall request the Authority to make necessary alteration in his record in the Central Identities Data Repository in such manner as may be specified by regulations.
(3) On receipt of any request under sub-section (1) or sub-section (2), the Authority may, if it is satisfied, make such alteration as may be required in the record relating to such Aadhaar number holder and intimate such alteration to the concerned Aadhaar number holder.
(4) No identity information in the Central Identities Data Repository shall be altered except in the manner provided in this Act or regulations made in this behalf.
Section 54. Power of Authority to make regulations
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:—
(e) the manner of updating biometric information and demographic information under section 6.”[1]
Nowhere in the provisions mentioned above, has a rigid time period been provided to complete the update process. The Authority has enacted the Aadhaar (Enrolment and Update) Regulations, 2016 (hereinafter “the Regulations”), published in the official Gazette on September 14, 2016 under which also no time period has been provided for completion of the update process.[2] The Authority has also enacted the UIDAI Data Update Policy (hereinafter “the Policy”) which also does not provide for any time period for completion of the update process.[3] Further, if the request for update is rejected, the authority needs to send a rejection letter to the resident. The Policy does not mention a time limit within which the letter should be sent. This shows that the Regulations and the Policy confer an arbitrary, unguided and uncontrolled power to the Authority. Due to this, there have been a huge number of complaints addressed by the people to the Consumer Forum concerning unacceptable delay in updating of Aadhaar.[4]
2. EXCESSIVE DELEGATION
The Authority can appoint registrars or enter into an agreement or MoU with other agencies to update the data. The provisions empowering the Authority for the same are:
“Section 23 (3) The Authority may,—
(a) enter into Memorandum of Understanding or agreement, as the case may be, with the Central Government or State Governments or Union territories or other agencies for the purpose of performing any of the functions in relation to collecting, storing, securing or processing of information or delivery of Aadhaar numbers to individuals or performing authentication;
(b) by notification, appoint such number of Registrars, engage and authorise such agencies to collect, store, secure, process information or do authentication or perform such other functions in relation thereto, as may be necessary for the purposes of this Act.”[5]
The Authority and the registrars are also free to appoint private agencies for updating the data which gives immense arbitrary powers to them as well. All these provisions do not fulfil the requirements of Doctrine of Permissible Limits under Delegated legislation. Reliance has been placed on Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST
“But there is danger inherent in such a process of delegation. An over-burdened Legislature or one controlled by a powerful Executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the Executive; it may confer an arbitrary power on the Executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self-effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation.”[6]
The formulation of policy, procedure and systems for update and deactivation of Aadhaar Number cannot be delegated to the Executive without any detailed legislative guideline mentioned in the Act. The update, assignment and deactivation of Aadhaar numbers are vital to the objective of good governance and efficient targeted delivery of subsidies and services to all the citizens of India. Therefore without issuance of guidelines by the Legislature, such a task cannot be delegated to the Authority who in turn has the power to delegate it to the Registrars and other agencies under the Act.
No legislative policy with respect to a rigid time frame for completion of the update/assignment process can be discerned from Section 23, 31 or 54 of the Act. Further, under Section 31, whether the biometric or demographic information of the citizens would be updated is wholly dependent on the satisfaction of the Authority. The Act itself doesn’t provide any grounds under which the Authority should refuse to update.
The provision for wide powers of policy formulation by the Authority under Section 23, Section 6, Section 31 and Section 54 of the Statute are ‘essential legislative functions’. Therefore these provisions are hit by the vice of excessive delegation. Reliance has been placed on Harishankar Bagla v. State of Madhya Pradesh where it was held that the essential powers of legislation cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law.[7]
These impugned provisions, through excessive delegation are conferring ‘arbitrary power’ to the executive which in turn increases the scope for violation of numerous fundamental rights. It is true that a liberal construction can be given to a statute considering its object, policy and the legislative history but it should not lead to handing over excessive arbitrary powers in the hands of the few. With respect to this, in Kishan Prakash Sharma v. Union of India, it was held that rule of liberal construction should not be carried by the court to the extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power conferred on the executive”.[8]
2. VIOLATION OF ARTICLE 14
The unguided administrative discretion provided to the Authority under the Act in the impugned Sections violates Article 14 of the Constitution of India, 1950 as neither Section 31(3) of the Act or the Regulation enacted under this Section provide specific grounds with respect to which update requests will be accepted and which will be rejected. Further, the updating agency is not mandated to mention reasons for rejecting the same. This gives a wide discretion to the updating agencies. Section 31(3) of the Act reads as
“Section 31. Alteration of demographic information or biometric information.
(3) On receipt of any request under sub-section (1) or sub-section (2), the Authority may, if it is satisfied, make such alteration as may be required in the record relating to such Aadhaar number holder and intimate such alteration to the concerned Aadhaar number holder.”[9]
The term ‘if it is satisfied’ gives the Authority an unbridled and an unguided discretionary power to reject or accept the request for update. Further, any guideline to exercise such discretion cannot be inferred from the statute anywhere. In Subramanian Swamy v. CBI, the Supreme Court has held that one of the two dimensions of Article 14 is:
“…excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders—if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution.”[10]
Moreover, the statute is of beneficial nature, especially enacted to ensure proper delivery of benefits under various financial and other subsidies, other benefits and services. Besides the legal rights under the Statute, the requirement of Aadhaar in all walks of life vide several government notifications under Section 7 of the Act has also vital implications on the rights under Article 19 and Article 21.
In light of the above mentioned rights, the unguided and excessive discretion provided in the impugned provisions violates the principle of proportionality as it disproportionately affects the civil rights of citizens. Under this principle, the court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”.[11] In the latest landmark judgement of the Hon’ble Supreme Court in Shayara Bano v. Union of India, it was enunciated that when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. Such manifest arbitrariness would apply to negate legislation as well under Article 14.[12]
In light of these principles, the impugned provisions in the present scenario would fall under the category of manifestly arbitrary and would thus violate Article 14 of the Constitution. Further, considering the nature of the statute and the rights and liabilities thereunder, it was imperative on the legislature to provide a time period for updating Aadhaar. Also, no information is provided regarding the approximate time consumed in each step which is to be undertaken by the updating agency for updating the Aadhaar.
The impugned provisions are also against the principles of ‘Good Governance’. This principle was explained by the Hon’ble Supreme Court in a recent judgement of Manoj Narula v. Union of India, wherein it said that the expectation of the citizens is that the Government would treat the public interest as the primary one and any other interest secondary.[13] It further held that:
“…The faith of the people is embedded in the root of the idea of good governance which means reverence for citizenry rights, respect for fundamental rights and statutory rights in any governmental action, deference for unwritten constitutional values, veneration for institutional integrity, and inculcation of accountability to the collective at large. It also conveys that the decisions are taken by the decision-making authority with solemn sincerity and policies are framed keeping in view the welfare of the people, and including all in a homogeneous compartment.[14]
The powers given to the Authority are not in consonance with the welfare of the people, the interest of the public is not given central focus while formulating mechanism for updating Aadhaar and no reverence has been given to the fundamental and citizenry rights of the people. Also, the provision itself makes the purpose of the statute fatal by not providing a time limit.
According to the principal enunciated in Rajesh Awasthi v. Nand Lal Jaiswal, progress is achieved when there is good governance and good governance depends on how law is implemented.”[15] The implementation of the law in Aadhaar Act is done in an arbitrary manner which is against the principles of good governance.
4. VIOLATION OF ARTICLE 19
The impugned provisions lead to infringement of the fundamental rights guaranteed under Article 19 of the Constitution as when a person faces delay in getting his/ her Aadhaar updated, he is prevented from exercising his Article 19 freedoms as he will not be able to use his Aadhaar which has become mandatory for various purposes.
5. VIOLATION OF ARTICLE 21
The impugned provisions are violative of Article 21 of the Constitution. They have not been enacted after following due process of law and they violate the right to live with dignity. According to Maneka Gandhi v. Union of India, ‘procedure’ in Article 21 means fair, not a formal procedure. It requires both the procedure established under the provisions and the provisions themselves to be fair, just and reasonable, not fanciful, oppressive or arbitrary.[16] A procedure should be designed to effectuate the substantive right itself and therefore it must rule out anything that is arbitrary or bizarre.[17] It further held that:
“… What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word “established” which means “settled firmly” not wantonly or whimsically.”[18]
These principles when applied will render the impugned provisions unconstitutional as the process for updating the Aadhaar has been formulated in an unfair, unjust and unreasonable manner providing excessive arbitrary powers to the Authority. It neither provides any directions to the Authority regarding the time limit for updating the Aadhaar nor does it direct the Authority to provide proper reasons for rejection of update request. Also, the poor and the illiterate population of India will be most affected and inconvenienced by the insufficient guidelines provided under these provisions. This unguided discretionary power does not fulfil the requirement of due process under Article 21, making the impugned provisions unconstitutional.
The Act does not provide any specific guidelines for grievance redressal mechanism. Under Section 23(2)(s) of the Aadhaar Act, the power to set up facilitation centres and grievance mechanism has been conferred to the Authority itself with no specific guidelines by the Government. Therefore, even the mechanism for providing a remedy for any grievance is at the whims of the Authority as the Act does not provide for any guideline for the same. This also shows the unfair nature of the impugned provisions and arbitrary powers.
There is a ‘duty to respond’ on the Authority when a request is made for updating the Aadhaar data. According to the Hohfeld’s correlatives, there exists a corresponding duty for every right. Thus the rights provided to people under this Act would be no use if the Authorities fail to respond to the requests and the grievances of the residents.
The impugned provisions affect the ‘right to live with dignity’. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).[19] According to the Hon’ble Supreme Court in K.S. Puttaswamy v. Union of India, dignity is intrinsically related to freedom of an individual, each being a facilitative tool to achieve the other.[20] It further says that:
“… The expression “dignity” carried with it moral and spiritual imports. It also implied an obligation on the part of the Union to respect the personality of every citizen and create the conditions in which every citizen would be left free to find himself/herself and attain self-fulfilment.”[21]
The unguided discretion under the impugned provisions affects the dignity of the person whenever he is denied of his constitutional and legal rights. It is also affected when a person has to face any inconvenience or harassment caused due to the incorrect information on the Aadhaar. When there is a delay in updating this information, his right to live with dignity is affected further.
6. CONVENIENCE FEE FOR UPDATING DATA
The Regulations give power to the Authority to fix convenience fee for residents even for updating their data. This regulation is ultra vires to the Act as it frustrates the purpose of the Act which aims to provide direct financial and other benefits to all residents especially to the poorer sections of the society. For example, the regulation does not take into consideration the manual labours that might need to change their Aadhaar biometrics from time to time and who might not be able to pay the convenience fee for the same. Updating Aadhaar is not a voluntary choice. It has become a mandate. Therefore, the regulations cannot overlook the financial disparity among the residents of India while fixing a convenience fee.
7. CONCLUSION
There have been a huge number of complaints addressed by the people to the Consumer Forum concerning unacceptable delay in updating of Aadhaar.[22] Since it is not practically possible for the Authority to supervise the day to day working of all the updating agencies, it gives them more scope for using their position arbitrarily. As a result, the only option available to the residents is to file a complaint in the UIDAI Grievance Redressal Cell against any unreasonable delay in updating of data. It is to be noted that the formulation of a framework for grievance redressal has been left to the discretion of the authority vide Section 23(2)(s) which is again problematic. This creates huge inconvenience to people as under Section 7 of the Act, Aadhaar has been made necessary for availing benefits of various subsidies, services and schemes provided by the Central and State Government.[23] In light of this, any delay or executive inaction in providing or updating the Aadhaar would prove fatal to the objective of the Act and would also negatively affect a number of fundamental rights of citizens. Therefore, these provisions which allow for any delay and the provision for levying convenience fee from everyone are unconstitutional in nature.
References
[1] Aadhaar (Targeted Delivery of Financial and other SubsIbIbidies, Benefits and Services) Act, 2016.
[2] Unique IbIbidentification Authority of India (Transaction of Business at Meetings of The Authority) Regulations, 2016.
[3] UIBIBIDAI Data Update Policy, 12th December, 2014.
[4] National Consumer Complaint Forum, UIBIBIDAI Complaint Board, available at https://www.complaintboard.in/complaints-reviews/uIbIbidai-l261629.html (last accessed on 6th June, 2018).
[5] Aadhaar (Targeted Delivery of Financial and other SubsIbIbidies, Benefits and Services) Act, 2016.
[6] Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST, (1974) 4 SCC 98, ¶ 15.
[7] Harishankar Bagla v. State of Madhya Pradesh (1955) 1 SCR 380, ¶ 9.
[8] Kishan Prakash Sharma v. Union of India, (2001) 5 SCC 212, ¶ 18.
[9] Aadhaar (Targeted Delivery of Financial and other SubsIbIbidies, Benefits and Services) Act, 2016.
[10] Subramanian Swamy v. CBI, (2014) 8 SCC 682, ¶ 49.
[11] Om Kumar v. Union of India, (2001) 2 SCC 386 at page 399, ¶ 28.
[12] Shayara Bano v. Union of India, (2017) 9 SCC 1, ¶ 101.
[13] Manoj Narula v. Union of India, (2014) 9 SCC 1, ¶ 82.
[14] IbIbid.
[15] Rajesh Awasthi v. Nand Lal Jaiswal, (2013) 1 SCC 501, ¶ 50.
[16] Maneka Gandhi v. Union of India, (1978) 1 SCC 248, ¶ 81.
[17] Ibid, ¶ 82.
[18] Ibid.
[19] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 108.
[20] Ibid, ¶ 298.
[21] Ibid, ¶ 542.
[22] National Consumer Complaint Forum, UIBIBIDAI Complaint Board, available at https://www.complaintboard.in/complaints-reviews/uIbIbidai-l261629.html, last seen on 29/6/2018).
[23] Ministry of Rural Development Notification (3rd January, 2017).
