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Yesterday, the Supreme Court delivered its first verdict in a series of legal challenges that have been made against the Aadhaar project.[1] In the present matter, the court was examining whether a provision of the Finance Act, 2017 that made Aadhaar mandatory for filing of income tax returns and applying for Permanent Account Number (PAN) cards was constitutionally valid. The court has upheld the validity of this provision, subject to a few qualifications. Below, we discuss the background of the Aadhaar project, why the courts have stepped in to examine its legality, and some aspects of the recent judgement.
What is Aadhaar about, and how is it being used?
Earlier, various identity proofs were required for access to governments benefits, subsidies and services, such as a ration card, driving license or voter id. However, as these proofs could be easily duplicated or forged, there was leakage of benefits and subsidies to ineligible beneficiaries. The Aadhaar project was initiated in 2009 to address these problems. It was envisaged as a biometric-based unique identity number that could help identify eligible persons. It was thought to be a more reliable identity proof, because it sought to authenticate a person’s identity based on their unique biometrics, like fingerprints and iris scans.1
In 2016, Parliament enacted the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to provide legislative backing to the project. This Act allowed Aadhaar to be used for authentication purposes by the central and state government, as well as by private bodies and persons.[2]
Under its provisions, government has been issuing various notifications making Aadhaar mandatory for government projects, such as LPG subsidies and Mid-Day Meal scheme.[3] In addition, in 2017, Parliament passed the Finance Act to amend the Income Tax Act, 1961, and made Aadhaar mandatory for filing of income tax returns, and applying for PAN.[4]
What is the information collected under Aadhaar?
To obtain an Aadhaar number, a person is required to submit their : (i) biometric information (photograph, 10 fingerprints, scans of both irises), and (ii) demographic information (name, date of birth, gender, residential address) to the Unique Identification Authority of India (UIDAI).[5] The Aadhaar number, the demographic and biometric information (called identity information) is together stored in the Central Identities Data Repository. In addition, every time a person’s identity is authenticated using Aadhaar, information related to the authentication request is recorded as well.
How is this information protected?
While India does not have a comprehensive law on privacy and data security, the Aadhaar Act, 2016 has some protections. For example, it prohibits UIDAI and its officers from sharing a person’s identity information and authentication records with anyone. It also forbids a person authenticating another person’s identity from collecting or using their information without their consent. Other protections include prohibitions against publicly displaying a person’s Aadhaar number and sharing of a person’s fingerprints and iris scans with anyone. Note that there are penalties prescribed for violation of these provisions as well.[6]
However, the Act permits information be disclosed in the interest of national security and on the order of a court.[7]
The UIDAI authority has been made responsible for the operation and maintenance of the Aadhaar database, and for laying down the security protocols for its protection.[8]
Why did the courts step in?
Even as Aadhaar is being rolled out, with about 111 crore of the 125 crore population already on the database, there are several important constitutional and legal questions around the unique identity project.[9][10] While yesterday’s judgement addresses one of these issues, other questions remain unresolved. A description of the key legal questions is provided below.
Privacy: It has been argued that the collection of identity data without adequate safeguards interferes with the fundamental right to privacy protected under Article 21 of the Constitution. Article 21 guarantees right to life and personal liberty. In August 2015, a three judge bench of the Supreme Court passed an order stating that a larger bench must be formed to decide the questions of: (i) whether right to privacy is a fundamental right, and (ii) whether Aadhaar violates this right.[11] However, the court has not set up a larger bench to hear these petitions till June 2017.[12]
Mandatory vs voluntary: Another question before the court is whether Aadhaar can be made mandatory for those government benefits and services, that citizens are entitled to under law. In 2015, the Supreme Court passed some interim orders stating that: (i) Aadhaar cannot be made mandatory for providing citizens with benefits and entitlements, and (ii) it can only be used for seven schemes including PDS distribution of foodgrains and kerosene, LPG distribution scheme, MGNREGA wage payments, and Prime Minister’s Jan Dhan Yojana.11
Subsequently, Parliament enacted the Aadhaar Act, 2016, and the government has been issuing notifications under it to make Aadhaar mandatory for various schemes.3 In light of this, more petitions have been filed challenging these notifications.[13] Judgements on these petitions are awaited as well.
Linking Aadhaar with PAN: In 2017, after Parliament made Aadhaar mandatory for filing of tax returns and applying for PAN under the Income Tax Act, 1961, fresh petitions were filed in the Supreme Court. The new provision stated that if a person failed to link their PAN with the Aadhaar number by a date notified by the central government, their PAN will be invalidated. The government said this will decrease the problem of multiple PAN cards obtained under fictitious names and consequent tax fraud and tax evasion, because Aadhaar will ensure proper identification.1,[14] However, the petitioners argued that this may interfere with a person’s fundamental rights, such as their right to practice any profession, trade or business and right to equality. It is this question that has been addressed in the new judgement.1
Money Bill: The fourth question is related to the manner in which the Aadhaar Act, 2016 was passed by Parliament. The Act was passed as a Money Bill. A Money Bill only needs to be passed by Lok Sabha, while Rajya Sabha may make non-binding recommendations on it. In case of the Aadhaar Act, Rajya Sabha made some recommendations that were rejected by Lok Sabha. It has been argued before the courts that the Aadhaar Act does not qualify as a Money Bill because it contains provisions unrelated to government taxation and expenditure.13,[15]
What has the judgement held?
The Supreme Court has held that the new provision of the Income Tax Act that makes Aadhaar mandatory for income tax assessees is not in violation of the fundamental right to equality, or the fundamental right to practice one’s profession or trade. The petitioners had argued that the new provision discriminates between individual and non-individual assessees (e.g. companies or firms), because it only seeks to address tax fraud by individuals. They had also contended that Aadhaar could not address the problem of tax fraud through duplicate PANs because there was evidence to show that people had multiple Aadhaar numbers as well. The court rejected these arguments (as well as arguments related to freedom to carry on business), stating that Aadhaar is perceived as the best method of eliminating duplicate PANs, and therefore there is reasonable rationale behind linking the PAN database with Aadhaar.1
The court decided not to examine questions related to human dignity and privacy, on the ground that issues affecting Article 21 will be examined by a larger bench to be set up by the court. However, it granted relief to people, who have not enrolled for Aadhaar, by stating that their PAN cards cannot be invalidated till the time when the matter is finally decided by such a bench.
This, in effect, means that the debate around constitutionality and legality of the Aadhaar project will remain ongoing till a judgement is finally pronounced on whether Aadhaar is in violation of right to privacy under Article 21.
[1] Binoy Viswam vs Union of India, Supreme Court, Writ Petition (Civil) No. 247 of 2017, http://www.sci.gov.in/pdf/jud/wc24717_Sign.pdf.
[2] Sections 7, 8 and 57, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
[3] Unstarred Question No. 4126, Lok Sabha, March 27, 2017; Unstarred Question No. 1209, Lok Sabha, February 9, 2017; S.O. 371 (E), Ministry of Consumer Affairs, Food and Public Distribution, February 8, 2017, http://dfpd.nic.in/writereaddata/Portal/Magazine/Document/1_211_1_aadhaar-notification.pdf; S.O. 369 (E), Ministry of Agriculture and Farmers Welfare, February 8, 2017, http://www.egazette.nic.in/WriteReadData/2017/174076.pdf.
[4] The Finance Bill, 2017, http://www.prsindia.org/billtrack/the-finance-bill-2017-4681/.
[5] Regulations 3 and 4, Aadhaar (Enrolment and Update) Regulations, 2016.
[6] Sections 28-47, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
[7] Section 33, Section 23, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
[8] Section 23, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
[9] “UIDAI achieves 111 crore mark on Aadhaar generation; Unique identity covers over 99 percent adult residents of India”, Press Information Bureau, January 27, 2017.
[10] Justice K. Puttaswamy (Retd) and Another vs Union of India and Others, Supreme Court, Writ Petition (Civil) No. 494 of 2012; Jairam Ramesh vs Union of India, Writ Petition (Civil) 231 of 2016; S.G. Vombatkere and Another vs Union of India and Others, Supreme Court, Writ Petition (Civil) 797/ 2016; “Aadhaar: What are the pending cases before the Supreme Court”, Indian Express, May 31, 2017, http://indianexpress.com/article/india/aadhaar-what-are-the-pending-cases-before-the-supreme-court/.
[11] Justice K. Puttaswamy (Retd) and Another vs Union of India and Others, Supreme Court, Writ Petition (Civil) No. 494 of 2012, September 23, 2013, August 11, 2015, October 15, 2015.
[12] “The Aadhaar/ PAN Judgement”, Indian Constitutional Law and Philosophy Blog, https://indconlawphil.wordpress.com/2017/06/09/the-aadhaarpan-judgment/.
[13] “Aadhaar: What are the pending cases before the Supreme Court”, Indian Express, May 31, 2017, http://indianexpress.com/article/india/aadhaar-what-are-the-pending-cases-before-the-supreme-court/.
[14] Uncorrected Lok Sabha Debates, March 22, 2017, Pg. 240, http://164.100.47.193/newdebate/16/11/22032017/Fullday.pdf.
With 4,203 confirmed cases of COVID-19, Maharashtra has the highest number of cases in the country as of April 20, 2020. Of these, 507 have been cured, and 223 have died. In this blog, we summarise some of the key decisions taken by the Government of Maharashtra for containing the spread of COVID-19 in the state.
Measures taken prior to lockdown
By March 12, the state had registered 11 cases of COVID-19. Consequently, the state government took measures to: (i) prepare hospitals for screening and testing of patients, and (ii) limit mass gathering given the highly contagious nature of the disease. The measures taken by the government before the lockdown are summarised below.
Health Measures
On March 14, the government notified the Maharashtra COVID-19 regulations to prevent and contain the spread of COVID-19 in the state. Key features of the regulations include: (i) screening of COVID-19 patients in hospitals, (ii) home quarantine for people who have travelled through the affected areas, and (iii) procedures to be followed in the containment zones, among others.
Movement Restrictions
On March 15, with 31 COVID-19 cases in the state, the Department of Public Health ordered the closure of cinema halls, swimming pools, gyms, theatres, and museums until March 31. On March 16, all educational institutions and hostels in the state were closed till March 31. The teaching staff was advised to work from home. All exams were also deferred until March 31.
Administrative Measures
On March 13, the Maharashtra government constituted a high-level committee to formulate guidelines for mitigating of the spread of COVID-19 in the state. The responsibilities of the committee included: (i) taking a daily review of the status of COVID-19 in the state, and (ii) implementing the guidelines issued by the World Health Organisation and the Ministry of Health.
On March 17, the first casualty due to COVID-19 occurred in the state. On March 19, the government put restrictions on meetings in the government offices and issued safety guidelines to be followed in these meetings.
On March 20, considering the unmitigated spread of COVID-19 in Mumbai, Pune and Nagpur, the attendance in government offices was restricted to 25%. Subsequently, on March 23, the government limited the attendance in government offices to 5% across the state.
Measures taken post-lockdown
To further restrict the movement of individuals, in order to contain the spread of the disease, the state government enforced a state-wide lockdown on March 23. This lockdown, applicable till March 31, involved: (i) closing down of state borders, (ii) suspension of public transport services, and (iii) banning the congregation of more than five people at any public place. Entities engaged in the supply of essential goods and services were excluded from this lockdown. This was followed by a nation-wide lockdown enforced by the central government between March 25 and April 14, now extended till May 3. Before the extension announced by the central government, the state government extended the lockdown in the state till April 30.
On April 15, the Ministry of Home Affairs issued guidelines on the measures to be taken by state governments until May 3. As per these guidelines, select activities will be permitted in less-affected districts from April 20 onwards to reduce the hardships faced by people. Some of the permitted activities are (i) agriculture and related activities, (ii) MNERGA works, (iii) construction activities, (iv) industrial establishments, (v) health services, (vi) certain financial sector activities among others subject to certain conditions.
Welfare Measures
To address the hardship being faced by residents of the state due to lockdown, the state took several welfare measures summarised as follows:
On March 30, the School Education Department issued directions to all schools in the state to postpone the collection of school fees until the lockdown is over.
The Department of Tribal Development issued directions to provide food/dietary components at home to women beneficiaries and children under Bharat Ratna Dr A.P.J. Abdul Kalam Amrut Aahar Yojana.
The state government issued directives to the private establishments, industries and companies to pay full salaries and wages to their employees.
On April 7, the state Cabinet decided to provide wheat and rice at a subsidised price to all Above Poverty line ration card holders and Shiv Bhojan at Rs 5 for next three months in all Shiv Bhojan centres.
On April 17, the Housing Department notified that landlords/house owners should defer the rent collection for three months. No eviction will be allowed due to non-payment of rent during this period.
Administrative Measures
On March 29, the public works department issued directions suspending the collection of tolls at PWD and MSRDC toll plazas for goods transport until further direction.
MLA Local Development Program: Under MLALAD program, a one-time special exception to use the MLALAD funds was given to legislators for the purchase of medical equipment and materials for COVID-19 during the year 2020-21.
Analysing the impact on the economy of the state: On April 13, the government constituted an Expert Committee and a Cabinet Sub-Committee to analyse the implications of COVID-19 on the economy of the state. These committees will also suggest measures to revive the economy of the state.
Orders relating to Mumbai city
On April 8, the city administration made it compulsory for all people to wear masks in public places.
On April 10, the Commissioner of Police, Greater Mumbai issued an order prohibiting any kind of fake or distorted information on all social media and messaging applications. The order is valid until April 24.
For more information on the spread of COVID-19 and the central and state government response to the pandemic, please see here.
