RS amendments had lacunae, would have made Aadhaar unconstitutional: Arun Jaitley

New Delhi: Justifying Lok Sabha's rejecting the amendments made by the Upper house to the Aadhaar Bill, Finance Minister Arun Jaitley on Friday said adoption of changes would have pushed the legislation, aimed at streamlining the payment of benefits, into realms of unconstitutionality.

Acceptance of the amendments would have led to much wider encroachment of the Right of Privacy and an auditor or an anti-corruption authority overseeing issues of national security, he said.

"These lacunae would have pushed the Aadhaar law to the realm of unconstitutionality. Obviously, the Lok Sabha did not agree with the above suggestions, and in my view, rightly so," he said in a Facebook post.

The Lok Sabha on the last of the first half of Budget session on Wednesday waited for Rajya Sabha to decide on the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016, and then swiftly rejected the amendments made to the legislation.

The amendments to be bill in Rajya Sabha, where the ruling NDA does not have majority, were moved by Congress members including Jairam Ramesh.

Jaitley said the legislation, aimed at better targeting of subsidies and benefits through use of unique identification number, contains stringent provisions both substantially and procedurally to protect privacy.

RS amendments had lacunae, would have made Aadhaar unconstitutional: Arun Jaitley

Arun Jaitley. PTI

While National Security is the only ground on which a Competent Authority can share core bio-metric information contained in Aadhaar, amendments wanted the condition to be replaced with "vague" and "elastic" Public Emergency or in the interest of public safety.

"It is also not clear as to how Aadhaar information would have been used in dealing with situations of public emergency or public safety," he said.

Jaitley said adoption of the amendment "would have provided a scope much wider for encroaching upon privacy than the words 'National Security' which existed in both the 2010 (law moved by the UPA) and 2016 law, and would have potentially become the grounds for constitutional challenge at a later date."

Jaitley said the Congress, using its superior numbers in the Rajya Sabha, forced an amendment to replace the words 'National Security' with the words "Public Emergency or in the interest of public safety". None of these two phrases are well defined. They are vague and can be elastic.

"It is also not clear as to how Aadhaar information would have been used in dealing with situations of public emergency or public safety," he said.

Jaitley added that there had been an extensive public debate on the need for the Unique Identity Number for each resident and the desirability of not compromising with the Right to Privacy.

"The 2010 Bill drafted by the UPA had provisions in chapter VI which led to this debate. The Bill provided for sharing of identity information with the consent of the Aadhaar number holder, or by an order of any court, or a Competent Authority, disclosing the information on the grounds of 'National Security'. The draft Bill was criticised for making provisions which could compromise an individual's Right to Privacy," he said.

Stating that privacy is an essential aspect of personal liberty guaranteed by Article 21 of the Constitution, he said the denial of privacy must be based on procedure which should be fair, just and reasonable.

"The 2016 law, therefore, contained stringent provisions both substantially and procedurally with regard to the Right of Privacy," he said.

The core bio-metric information cannot be shared with any person even with the consent of the Aadhaar card holder.

Also, the information cannot be unlawfully shared and instead of permitting any court to direct production of any such information, only a Court of the District Judge or above has been given the power to order disclosure of information excluding core biometrics.

"National Security is the only ground on which a Competent Authority can share this information," he said adding such decisions would be reviewed by a committee comprising the cabinet secretary, the law secretary and the information technology secretary before it is given effect.

The period of the direction of this Competent Authority has been limited to a maximum of three months.

The finance minister said the ground of National Security as the only ground on which the Competent Authority can share information is common to both the 2010 and 2016 laws.

"National Security is a well defined concept. The phrase exists in several legislations and also finds indirect reference in the Constitution in Article 19(2)," he said.

Stating that National security has always been held to be an exception on account of larger public interest, wherein individual’s rights give way to larger public interest, he said the same principle is followed in most advanced liberal democracies.

On the proposed another amendment that the Oversight Committee to review the Competent Authority's decision should also comprise either the Central Vigilance Commissioner (CVC) or the Comptroller and Auditor General (CAG), Jaitley said one is an anti-corruption authority and the other audits the government's accounts.

"Both have no nexus whatsoever with the issues of National Security," he said.

The minister said the Congress amendment proposed to delete Section 57 of the 2016 law.

Section 57 states that if under any other law the use of Aadhaar number for establishing the identity of an individual is permitted, the same law is not being over-ruled.

Stating that this proposed amendment wanted all future laws to be over-ruled, he said: "Had a Money Bill started over-ruling future unknown legislations, it would have ceased to be a Money Bill. Had the amendments proposed in the Rajya Sabha had been accepted, the encroachment to the Right of Privacy would be much wider.

"The Oversight Committee, on issues of national security, would have consisted of either an auditor or an anti-corruption authority, and the Money Bill would have gone beyond the scope of the Money Bill."

The Aadhaar database scheme, started seven years ago, was aimed at streamlining payment of benefits and cut down on massive wastage and fraud. Already, nearly a billion people have registered their finger prints and iris signatures.

Passage of the legislation now makes its mandatory for individuals to produce Aadhaar number for obtaining government benefits and subsidies.


Firstpost is now on WhatsApp. For the latest analysis, commentary and news updates, sign up for our WhatsApp services. Just go to and hit the Subscribe button.

Updated Date: Mar 18, 2016 18:51:27 IST

Also See