Greater clarity needed

As a precursor of things to come, the Supreme Court on Monday observed that the government cannot deny benefits to citizens for not producing Aadhaar. "Aadhaar cannot be pressed for social welfare schemes by the government," the court observed orally. Reports also suggested that the bench said its earlier orders, which say Aadhaar cannot be mandatory and do not apply to non-welfare programmes, such as opening bank accounts. Petitioners in the case, however, claimed that this was merely a discussion with no specific orders passed. Despite all the scandals, corruption and instances of outright misgovernance, the one thing the previous United Progressive Alliance-II government did was to initiate the Aadhhar programme. Although the Bharatiya Janata Party was not initially very enthusiastic about the idea, its government at the Centre took the programme further and gave it statutory backing last year, when it passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, as a Money Bill in Parliament. It was in direct contravention of the Supreme Court's order in October 2015, which stated that the government cannot make Aadhaar mandatory for welfare schemes until the case looking into its legality has been decided.

More recently, though, the NDA government announced that Aadhaar card will now also become mandatory for filing income tax returns. Without possessing, or enrolling for Aadhaar, it won't be possible to pay taxes. In other words, ordinary citizens without Aadhaar will end up committing a crime of tax evasion. It is evident that the executive and the judiciary remain at odds with each other, leaving the legal status of a programme meant to enhance governance in the throes of ambiguity. The Centre has nevertheless been expanding the scope of the Unique Identity project over the past few months, making it mandatory for citizens to avail of over 30 government schemes. It has not been all plain sailing, though. The recent move to make it mandatory for initiatives such as the midday meal scheme of school lunches for children was met with serious public resistance, forcing the government to drop it. Nonetheless, it is more than apparent that the government sees Aadhaar as an essential tool for the government that it can use when in contact with the citizen.

In these columns, we have ascertained the many benefits of Aadhaar. If implemented with proper safeguards, the Aadhar Bill could become one of the most progressive pieces of socio-economic legislation in the country's history. Votaries of the system often argue that the technology used could stem political and bureaucratic corruption in the delivery of social schemes through direct income transfers, borne out of the fact that it reduces the points of contact between state and citizens. Much of the excitement surrounding the Aadhar card has to do with these intended benefits. Finance Minister Arun Jaitley argued that it could save the government thousands of crores by plugging leakages and targeting those individuals most in need of benefits and subsidies. Others believe that these are wild claims. Experts on the ground dealing with the government's public distribution system, for example, argue that Aadhaar will only manage to plug certain types of leakages. Moreover, there are logistical issues to contend with such as complaints of delays, authentication failures and connectivity problem, among others, especially in the poorer States. For the Centre, the battle is now to erase all doubts that it is statutorily vulnerable. As noted earlier, the apex court stipulated that the Aadhaar scheme must remain voluntary and should not be made mandatory until it arrives at a resolution. The Centre's decision to willy-nilly ignore the court's orders creates an uncomfortable discord between two critical arms of the state—executive and judiciary. Some might argue that the government has passed legislation in Parliament (the means it used are up for debate), and that should settle the discussion as it represents the will of the people. But the apex court's primary task is to stand as a bulwark between unchecked State coercion or majoritarianism on the one side and the individual on the other. That is the main reason why it exists in a democratic republic. With the government determined to expand the Aadhaar programme's sphere of influence in the lives of ordinary citizens, there cannot be any ambiguity in its legal status and limits.

Of course, the responsibility of finding ways to bridge this divide lies with both the courts and the political executive. Chief Justice of India JS Kehar said that a five-bench constitutional bench would hear Aadhaar-related cases from May. Until the courts come to a final decision, it would be in the government's best interests not to brazenly ignore the court. Not only does it leaves the programme vulnerable to disruptive litigation, but also presents the impression that the government gives greater precedence to efficient governance than rights of citizens.

Another issue that has come to the fore is the expansion of Aadhaar beyond government-sponsored benefits and subsidies. In making Aadhaar mandatory for tax returns, for example, there is one of the school of thought that believes that it would make tax evasion a lot harder than the current PAN card system. There is another school of thought, which believes that the government has left the citizen in an impossible position—choosing between getting an Aadhaar Card (and all the sacrifice of privacy and personal data that entails) or becoming a criminal (by not paying your taxes). "But there are also questions. What will be the threshold of suspicion of tax evasion beyond which investigations will be launched? Given the particularly sensitive context, what will be the regulations on database sharing?" asks a recent editorial in the Mint. One must extend the same question to other spheres (linking mobile phone numbers to Aadhaar, for example)—how secure is our personal data in the hands of the government? At this juncture, the right to privacy takes centre stage. The government's position is clear—the right to privacy is not a fundamental right under the Indian Constitution. There needs to be greater clarity on these questions, and the courts must address them as soon as possible. This programme has become too big to fail.