The hearing on the Constitutionality of Aadhaar has been going on in the Supreme Court of India since 17 January 2018 by a five-judge bench. The honourable judges will listen to both sides and then take a decision. The purpose of the current note is to visualise Aadhaar through Section 7 of the Aadhaar Act and its importance in the recent interim order of 13 March 2018 by the Supreme Court. It will also raise some concerns on democracy, sovereignty and republicanism.
Section 7 of Aadhaar
Section 7 of Aadhaar
"The Central Government or, as the case may be, the State Government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from, or the receipt therefrom forms part of, the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment:
Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service."
Recent Interim Order
A recent interim order (13 March 2018) by the five-judge bench extends the relief provided in an earlier interim order (15 December 2017) on linking of Aadhaar to the receipt of entitlement and various service providers (banks account holders and mobile phone subscribers). The order also accepted a submission with regard to Section 7 of the Act. The relevant portions of the recent interim order read as follows:
There could be two possible interpretations of the recent interim order. One interpretation, based on paragraph 13 of the earlier interim order, implies that the Aadhaar linkage to recipients under various schemes gets extended till a final judgement is taken.
Another interpretation, based on the submission by the Attorney General that the benefits, subsidies and services under Section 7 of the Aadhaar Act should remain undisturbed, implies that the extension on Aadhaar linkage to recipient under various schemes is limited. This is so because almost all schemes draw their expenditure from the consolidated funds.
Decoding Section 7
A cursory reading of Section 7 of the Act may suggest that the use of Aadhaar is for identification of a recipient of a subsidy, benefit or service and if an individual does not possess Aadhaar than other alternate and viable methods should be offered. Now, if this is the case then there was no need for the Attorney General's submission requesting that "the benefits, subsidies and services covered under Section 7... should remain undisturbed." This calls for a greater scrutiny.
A careful reading of Section 7 of the Act points out that other alternate and viable methods of identification are perhaps available only to those who have applied for enrollment to Aadhaar. In effect, at the implementation stage this could likely be a one-time exemption only.
Furthermore, Section 7 is silent on denial of benefits, subsidies or services on account of failure of identity authentication. There have been instances where individuals have been denied their genuine entitlements that have been due under employment guarantee or food security or as pension among others. In fact, there have been instances when retired employees have not been able to withdraw their provident fund for want of a life certificate because of a failure in identity authentication through Aadhaar. One may point out that the withdrawal of provident fund may not be directly linked to Aadhaar, as it is part of public accounts and not drawn from consolidated funds. The fact of the the matter is that it also has been dependent on Aadhaar.
Now, a pertinent question is why did the Attorney General bring in Section 7. One possible conjecture is to guard against inconvenience (and perhaps contempt of court) arising out of acts by implementing agencies that leads to denial of entitlements and also to facilitate business as usual. The executive should continue to do that they have been entrusted with. Another possible argument is to prevent misuse of public expenditure. Maybe, there are some other reasons. Whatever it may be, it does provide a long leash to the executive with an articulation that inclusion errors matter more than exclusion errors. Imposing a moral imperative, excluding a deserving person from her entitlement is more serious than including a non-deserving person.
The moot point is that by accepting the submission by the Attorney General that Section 7 should remain undisturbed the paragraph 13 of the earlier order has lost bite and seemingly redundant. Given this and in view of possible denial of entitlements, the honourable five-judge bench may reconsider accepting the submission in its entirety.
Possible Affront
The denial of legitimate entitlements is serious. It is in this context that one raises a concern on the usage of the term 'benefit'. In a democratic polity by the people, for the people and of the people, the benefits and services rendered by the state either in cash or kind are entitlements. The usage of the term benefit (as also for services) seem to connote a largess. Seeking public health service or public education will no more be a matter of right; rather, it would be a charity by the state. This is an affront on democracy. What is more, this affront seems to have a legislative sanction.
Even the use of the term 'subsidy' may not be appropriate. First because entitlements ought to be facilitated through grants. Technically, all grants may be considered as subsidies, but in plain-speak a subsidy has a Fund-Bank connotation leading to a discussion on market distortions and inefficiencies. While not denying the relevance of markets, any discourse that implicitly or explicitly concedes that it is the only institution that matters is an affront on sovereignty.
As an aside, our concerns on the usage of the words would mean that in the title of the said Act "Targeted Delivery of Entitlements through Grants" should have been used instead of "Targeted Delivery of Financial and other Subsidies, Benefits and Services". This would perhaps also mean that the Act ought not to have come through as a Money Bill.
One may also mention that the World Trade Organisation also distinguishes subsidies as green, amber, blue and red boxes. Meeting entitlement through grants are those that fall under the green category. Articulating them to be 'subsidies' per se could attract them under amber, blue or red leading to a call to withdraw them in some not so distant future. If that happens that would be an affront on the marginalised and the vulnerable, and in that sense an affront on the republic.
Concluding Remarks
Reading between the lines, a view through the prism of Section 7 of Aadhar Act gives a perspective that plays hide and seek - idhar, udhar, Aadhaar. In addition, we invoke a moral imperative indicating the seriousness of exclusion over inclusion errors and raise concerns on possible affront to democracy, sovereignty, and republicanism. We end with a call on caution. No more idhar, udhar, Aadhaar.
Neither for you, nor for me
Creative Identification
Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)
Aadhaar Interim Order Calls for Some Clarification
If a Lie is told Three Times
Aadhaar, Radiagate and Cablegate
A recent interim order (13 March 2018) by the five-judge bench extends the relief provided in an earlier interim order (15 December 2017) on linking of Aadhaar to the receipt of entitlement and various service providers (banks account holders and mobile phone subscribers). The order also accepted a submission with regard to Section 7 of the Act. The relevant portions of the recent interim order read as follows:
"...On a query being made, Mr. K.K.Venugopal, learned Attorney General for India submitted that this Court may think of extending the interim order. However, the benefits, subsidies and services covered under Section 7 of the The Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 should remain undisturbed. We accept the same.
Having heard learned counsel for the parties, we accept the submission made by the learned Attorney General. Subject to that, we direct that the interim order passed on 15.12.2017 shall stand extended till the matter is finally heard and the judgment is pronounced. That apart, the directions issued in the interim order shall apply as stated in paragraphs 11 to 13 in the said order. For the sake of clarity, we reproduce the said paragraphs which read as under:-
"...
13. Consistent with the above directions, we also direct that the extension of the last date for Aadhar linkage to 31 March 2018 shall apply, besides the schemes of the Ministries/Departments of the Union government to all state governments in similar terms. As a consequence of the extension of the deadline to 31 March 2018, it is ordered accordingly.”
..."Two Possible Interpretations
There could be two possible interpretations of the recent interim order. One interpretation, based on paragraph 13 of the earlier interim order, implies that the Aadhaar linkage to recipients under various schemes gets extended till a final judgement is taken.
Another interpretation, based on the submission by the Attorney General that the benefits, subsidies and services under Section 7 of the Aadhaar Act should remain undisturbed, implies that the extension on Aadhaar linkage to recipient under various schemes is limited. This is so because almost all schemes draw their expenditure from the consolidated funds.
Decoding Section 7
A cursory reading of Section 7 of the Act may suggest that the use of Aadhaar is for identification of a recipient of a subsidy, benefit or service and if an individual does not possess Aadhaar than other alternate and viable methods should be offered. Now, if this is the case then there was no need for the Attorney General's submission requesting that "the benefits, subsidies and services covered under Section 7... should remain undisturbed." This calls for a greater scrutiny.
A careful reading of Section 7 of the Act points out that other alternate and viable methods of identification are perhaps available only to those who have applied for enrollment to Aadhaar. In effect, at the implementation stage this could likely be a one-time exemption only.
Furthermore, Section 7 is silent on denial of benefits, subsidies or services on account of failure of identity authentication. There have been instances where individuals have been denied their genuine entitlements that have been due under employment guarantee or food security or as pension among others. In fact, there have been instances when retired employees have not been able to withdraw their provident fund for want of a life certificate because of a failure in identity authentication through Aadhaar. One may point out that the withdrawal of provident fund may not be directly linked to Aadhaar, as it is part of public accounts and not drawn from consolidated funds. The fact of the the matter is that it also has been dependent on Aadhaar.
Now, a pertinent question is why did the Attorney General bring in Section 7. One possible conjecture is to guard against inconvenience (and perhaps contempt of court) arising out of acts by implementing agencies that leads to denial of entitlements and also to facilitate business as usual. The executive should continue to do that they have been entrusted with. Another possible argument is to prevent misuse of public expenditure. Maybe, there are some other reasons. Whatever it may be, it does provide a long leash to the executive with an articulation that inclusion errors matter more than exclusion errors. Imposing a moral imperative, excluding a deserving person from her entitlement is more serious than including a non-deserving person.
The moot point is that by accepting the submission by the Attorney General that Section 7 should remain undisturbed the paragraph 13 of the earlier order has lost bite and seemingly redundant. Given this and in view of possible denial of entitlements, the honourable five-judge bench may reconsider accepting the submission in its entirety.
Possible Affront
The denial of legitimate entitlements is serious. It is in this context that one raises a concern on the usage of the term 'benefit'. In a democratic polity by the people, for the people and of the people, the benefits and services rendered by the state either in cash or kind are entitlements. The usage of the term benefit (as also for services) seem to connote a largess. Seeking public health service or public education will no more be a matter of right; rather, it would be a charity by the state. This is an affront on democracy. What is more, this affront seems to have a legislative sanction.
Even the use of the term 'subsidy' may not be appropriate. First because entitlements ought to be facilitated through grants. Technically, all grants may be considered as subsidies, but in plain-speak a subsidy has a Fund-Bank connotation leading to a discussion on market distortions and inefficiencies. While not denying the relevance of markets, any discourse that implicitly or explicitly concedes that it is the only institution that matters is an affront on sovereignty.
As an aside, our concerns on the usage of the words would mean that in the title of the said Act "Targeted Delivery of Entitlements through Grants" should have been used instead of "Targeted Delivery of Financial and other Subsidies, Benefits and Services". This would perhaps also mean that the Act ought not to have come through as a Money Bill.
One may also mention that the World Trade Organisation also distinguishes subsidies as green, amber, blue and red boxes. Meeting entitlement through grants are those that fall under the green category. Articulating them to be 'subsidies' per se could attract them under amber, blue or red leading to a call to withdraw them in some not so distant future. If that happens that would be an affront on the marginalised and the vulnerable, and in that sense an affront on the republic.
Concluding Remarks
Reading between the lines, a view through the prism of Section 7 of Aadhar Act gives a perspective that plays hide and seek - idhar, udhar, Aadhaar. In addition, we invoke a moral imperative indicating the seriousness of exclusion over inclusion errors and raise concerns on possible affront to democracy, sovereignty, and republicanism. We end with a call on caution. No more idhar, udhar, Aadhaar.
Neither for you, nor for me
Creative Identification
Right to Privacy, Aadhaar and Democracy (also re-posted at LSE blog)
Aadhaar Interim Order Calls for Some Clarification
If a Lie is told Three Times
Aadhaar, Radiagate and Cablegate
[The views expressed are that of the author and not that of the institutions/organisations that the author is associated with. Comments are welcome.]
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