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Aadhar – Will the Government be able to overcome Court resistance




The Government has been pushing for Aadhar to be the dominant identity of the common citizen (although the recent Supreme Court strictures on making Aadhar only applicable to Indian citizens puts some element of doubt on the intentions of the Government to make Aadhar restricted to only Indian citizens) for the past couple of years. For the past couple of decades, there have been attempts to setup some kind of identity card or identity number scheme for Indian citizens, and I remember a time when the PAN card was pushed as the main identity card for Indian citizens. However, this was not to be, and a couple of years back, there was a push for Aadhar. The Aadhar card scheme was supposed to be a system for identification of each citizen and was deemed a lot of respectability and purpose through putting Nandan Nilekani as the head of the system. For some time, there was a conflict with the Home Ministry which was pushing the National Population Register, but Aadhar pulled ahead after a lot of deliberations. However, the progress was not smooth. The system was made part of the system of pushing subsidies to the population, such as subsidies for cooking gas, and other benefits to people (and which was seen by the Government as a game-changer (in the immortal words of Rahul Gandhi) in terms of getting votes from people – after all, the idea was to transfer money directly to people and this would ensure that they continue to vote for the Congress in the Lok Sabha).
The idea was incredibly good. After all, the system of transferring money directly to the intended recipients would ensure that the incredible amount of leakages that happen in the system would go away. What could be better ? However, the problem is in the details. The population of India, especially the poorer sections to whom such subsidies are intended live in conditions which are not ideal for money transfers. They are not really served by banks, with even the all reaching institutions of post offices not reaching them. All these years of development have not seen the various welfare mechanisms till now reaching them. And with the bureaucracy at different levels of Government well entrenched in how to divert money through the delivery mechanisms, it can be difficult to break this leakage process that keeps on happening. Banks are reluctant to setup branches in places where they do not see business and where there are no clear ways for people to furnish the adequate identity papers that banks need as part of their security mechanisms.
What does all this mean ? Well, it means that there is a huge amount of effort required to make such a scheme work, as well as the time required to do this can take a lot of time. But, with the elections coming up in 2014, and the Congress Government looking to make capital out of using Aadhar as a part of the delivery mechanism of transferring cash to the poorer sections of society, there has been a push to ensure that the mechanism is put in place early.

For such a monumental scheme, there is no legislative backing. Like many other actions of the Government, there is typically no debate outside of the Government or the Congress party of the merits or problems of such a process, and the Government has really not tried to take the required level of debate to the country (this is very typical though). The Government did take the legislation to Parliament where it went to the Standing Committee, but the Committee asked a lot of questions and generated a negative recommendation. That was the end of any attempt to go before Parliament, and since then, the entire Aadhar effort has been done by the Government as if there was no need for any kind of Parliamentary approval.
One of the problems has been that Aadhar is not something that is mandatory for citizens. You need not apply for a Aadhar card. The method used by the Government to make it in effect mandatory for citizens was by linking it to various schemes. So, if you needed to get the subsidy on LPG cylinders, you had to have your account linked with your Aadhar card, and the same for numerous other subsidy benefits. There were ideas being floated around that you would be able to apply for marriage registration and other such necessary measures without having a Aadhar card.
One wonders whether the legal counsel of the Government provides any information or not. There are a number of senior ministers who are lawyers, but it looks like they have all rusted away. How could none of them have considered that the Government was in effect saying that you are not entitled to get a particular benefit if you don’t have an Aadhar card, but the card itself was not mandatory. Boy, talk about somebody missing something – which also makes me wonder about the level of detail that the Government thinks through before taking decisions. So, the next logical step happened. Somebody went to the Supreme Court and challenged this policy of the Government, and it was struck down, with even the Government legal officer admitting that Aadhar was not mandatory.
This was a huge shock for the Government. It should also be a shock for all of us, since the overall implementation cost of Aadhar was supposed to be Rs. 50,000 crore, and one wonders how the Government could have over-looked such a basic problem ? It boggles my mind to even think about the obvious stupidity inherent in all this. The Government tried to go back to the court to ask them to review the decision, but this was turned down. I would not put it past the Government to try and bring in an ordinance again to make Aadhar mandatory, but that would be sure to be challenged – after all, the Aadhar system has not been exposed to an open challenge before implementing it, and if a loophole is found, that would be hugely problem. Not to talk about significant other problems in terms of the distribution of Aadhar cards and the numerous mistakes that have been found (in some areas, the Government apparently said that the first set of Aadhar cards would need to be re-done).
The idea is still good, but it needs to go through a public debate first to ensure that a system of collecting bio-metric information from everyone passes the privacy test, that the data is being safe-guarded to the highest level of safety (no clue about this right now), and that it is done through a proper legal framework. I think that this is a long way off, atleast 3-4 years, and the system needs to be done through phase by phase, slowly covering the entire country, rather than being pushed through quickly as a flawed system just to garner some political capital. But, then this is the Manmohan Government we are talking about, so logic will fail and political opportunism will rise.




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