Was the Govt Right to Use Ordinance Route for Aadhaar Amendments?

The Aadhaar amendments are not necessary and don’t require immediate action, which is when ordinances are justified.

Late on the night of Thursday, 28 February, the Union Cabinet approved the promulgation of the Aadhaar and Other Laws (Amendment) Ordinance 2019. According to the PMO’s official press release, the purpose of these amendments is to “serve the public interest and restrain the misuse of Aadhaar.”

There are some provisions in the ordinance which perhaps reflect this, including the option for children enrolled for Aadhaar to opt out when they are 18 years of age (though the mandatory linking of Aadhaar to PAN for tax returns makes this useless), and a reiteration that services cannot be denied or refused if Aadhaar authentication fails.

The headline change brought in by the ordinance is, of course, to allow ‘voluntary’ use of Aadhaar number for authentication and offline by private service providers, like banks and mobile companies.

The extent to which this will, in fact, be truly voluntary is debatable since, for instance, when it comes to bank accounts, it says either a passport or Aadhaar can be provided – but only 5.15% of Indians have a passport.

Leaving aside the merits or demerits of the amendments themselves (you can read how they violate the Supreme Court’s Aadhaar judgment here), this development is also troubling because the Centre has pushed it through by going down the ordinance route.

Here’s why this was unnecessary and quite possibly unconstitutional, and yet another example of the government’s disregard for propriety.

Was This Ordinance Really Necessary?

BASIS OF ORDINANCE-MAKING POWER

It’s important to understand right at the outset that ordinances are not meant to be everyday occurrences.

Primary legislation like the Aadhaar Act is the business of the legislature, not the executive. This is because such lawmaking requires the consideration of views by political representatives from different parties and regions – that’s the point and purpose of a Parliament in a representative democracy like India’s.

There is obviously a need to ensure that urgent laws can be passed when Parliament can’t do the job, which is why there has to be a power to make law through ordinances. This is exactly what Article 123 of the Constitution does. According to Article 123, an ordinance can be promulgated by the President when:

1. the Houses of Parliament are not in session; and
2. the President is satisfied that circumstances exist which render it necessary for him to take immediate action.

NON-URGENT AMENDMENTS

So how does the Aadhaar and Other Laws (Amendment) Ordinance 2019 stack up when it comes to these conditions?

Yes, the Lok Sabha and Rajya Sabha are not in session, and won’t be till after the general election. But was there any necessity in bringing in these amendments on an urgent basis? Could they not have waited till Parliament was back in session?

The ordinance seems to have been passed without really considering these questions. It is difficult to see why “immediate action” was required so that Aadhaar could be used for authentication by private entities – this is hardly essential for a bank or telecom company to function, when there are myriad other identity proofs available.

Similarly, why was “immediate action” needed to allow disclosure of Aadhaar information when asked for by government authorities? Aadhaar isn’t a valid ID proof, it’s only proof of residence, and if the government needs to confirm that, it can rely on other evidence as well. Moreover, the Supreme Court had struck down the old power to order disclosure in September 2018 – why did it take so long for this to become a matter of urgency?

Note also that the old power to do this had been struck down because people weren’t given a right to be heard, and the court said this was essential before disclosure could be allowed – something the ordinance completely forgets to do.

POSSIBLY URGENT AMENDMENTS

It might be argued that provisions for ensuring enrolment of children only with informed consent of parents/guardians (and to ensure services couldn’t be denied), were in fact urgently necessary, but these issues had already been covered by the Supreme Court judgment. Yes, the law needs to be amended to reflect the pronouncements of the Supreme Court, but this was not required on an urgent basis, as the Constitution Bench had already clarified these points and read down the Aadhaar Act.

Even if we buy the argument and say that some parts of this ordinance were perhaps necessary, the ordinance should not have included the non-urgent matters, and should have stuck to those where immediate action was required.

Is This Ordinance Unconstitutional?

Back in 2017, a seven-judge bench of the Supreme Court delivered a landmark judgment on how repeated promulgation of ordinances was a “fraud on the Constitution”. This judgment related to ordinances promulgated in Bihar, but played a major role in stopping the Modi government from using the ordinance route to push through legislations they knew wouldn’t pass through the Rajya Sabha, such as their amendments to the Land Acquisition Act 2013.

However, this judgment (Krishna Kumar Singh vs State of Bihar) didn’t just deal with re-promulgation of ordinances. Justice Chandrachud’s majority opinion specifically says that ordinances are only law if they satisfy the requirements under the Constitution.

“The constitutional fiction, attributing to an Ordinance the same force and effect as a law enacted by the legislature, comes into being if the Ordinance has been validly promulgated and complies with the requirements of Articles 123 and 213”

Justice Chandrachud at para 80(iii) of the majority judgment, at page 131.

As a result, if an ordinance is passed which was not necessary, then it should not have the force of law. Of course, even if we can clearly see that the ordinance doesn’t satisfy the requirement of necessity, this doesn’t mean the ordinance vanishes into thin air. For the ordinance to become invalid, the courts would have to strike it down for being unconstitutional.

This is something the Supreme Court or the high courts could do, though past Supreme Court jurisprudence limits the circumstances when they can interfere to situations where there has been a “fraud on power or abuse of power”. As Justice Chandrachud explains in the Krishna Kumar Singh judgment, “This essentially involves a situation where the power has been exercised to secure an oblique purpose.”

Is the Ordinance an Abuse of Power?

Most courts are unlikely to ever say that something done by the President of India on the advice of the Union Cabinet was an abuse of power. Part of this comes down to a desire not to be seen as encroaching on the separation of powers and the government’s discretion when it comes to policy, while part of this comes from a well-established tradition of not rocking the boat too much.

Even so, if there is any case where the higher judiciary had grounds to raise an eyebrow, Aadhaar is it.

Ever since its inception, Aadhaar and propriety have spectacularly failed to go hand in hand. From the absence of a law governing its use when it was introduced by the UPA government, to the way in which the Aadhaar Act 2016 was railroaded through Parliament by designating it a Money Bill, a disregard for the law has been a key feature of the programme.

The designation of the Aadhaar Act as a Money Bill was termed by Justice Chandrachud, in his dissenting opinion in the Aadhaar case, as a “fraud on the Constitution”. The majority judgment skirted around this, but still made sure that any non-Money Bill elements of the Act were struck down or read down.

Coming to the ordinance itself, it follows an attempt to get this law passed in Parliament – a bill with the same amendments was passed by the Lok Sabha on 8 January 2019, but wasn’t passed by the Rajya Sabha before the session ended. The fact that it failed to get past the Rajya Sabha should not be so easily discounted, since it was because of objections in the Rajya Sabha that the Money Bill fiasco had taken place in 2016.

The majority opinion in the Aadhaar case had also held that allowing private entities to use Aadhaar for authentication/verification enabled surveillance and violated the right to privacy. This was acknowledged by Attorney-General KK Venugopal in an advisory opinion to the UIDAI dated 15 October 2018, in which he noted that even voluntary authentication could only take place if a law was “enacted by Parliament for this purpose”.

The Attorney-General also noted the the ‘doctrine of proportionality’ would be applied to any such law, which again requires fulfilment of the following conditions to ensure the right to privacy isn’t violated:

1. A proper purpose;
2. A rational connection between the purpose and the law;
3. No alternative, less invasive measures; and
4. The importance of the aim is sufficient to justify infringing the right to privacy.

In the absence of a data protection law, and with no regulations specified for ensuring there is no misuse of this provision (this is to be specified by regulation later), it is difficult to justify this ordinance, and the Supreme Court has already provided the reasoning for this. The UIDAI and the government also possess an advisory opinion from the chief law officer of the country expressing the need for this.

In such circumstances, it wouldn’t be unreasonable to argue that the rushing through of these amendments as an ordinance isn’t impacted by extraneous considerations. An Asia Times report in January had, in fact, alleged that members of private tech companies were expecting the government to introduce an ordinance or legislation to allow Aadhaar authentication by private entities way back in September 2018, just after the judgment.

Given the interests of certain private players in Aadhaar linkage, this would seem like a good example of an “oblique purpose”, but the report, and the leaked audio recording it was based on, is no longer available.

Unfortunately, despite the problems with the manner in which this ordinance has been adopted, it is difficult to see the courts willing to take the plunge and term it an abuse of power.

As a result, a challenge in the courts to the ordinance would be better suited to focus on the actual content itself, some of which could reasonably be said to be in contempt of the SC judgment.

Whatever the outcome, it is clear that this government is willing to push for Aadhaar to be used in a widespread manner, without any regard for propriety or procedure. This bodes ill for the protection of the right to privacy.