This Article Is Written By Monika Thakur, B.A.Llb (Hons) 2nd Years Law Student At Lovely Professional University Punjab Phagwara.
Table of Contents
Abstract
The viability of Sections 6, 23(2)(f), 23(2)(g), 31(3), and 54(2)(e) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016 (hence “the Act”) is contested in the current article. These clauses are not discussed in the Hon’ble Supreme Court’s ongoing Aadhaar issue. The aforementioned Act’s provisions are in violation of the Indian Constitution because they provide the Unique Identification Authority of India (hence “the Authority”) an excessive amount of discretion and authority. Additionally, a cursory reading of the aforementioned clauses would show a lack of a clear legislative policy or direction for the Authority in using its authority under the Act to update/deactivate the Aadhaar numbers of different residents. It was essential on the part of the Legislature to establish sufficient time frames and checks for the update process rather than leaving it up to the Authority’s complete discretion in accordance with the Statement of Object and Reasons of the Act. Additionally, the aforementioned measures have enhanced the potential for executive inaction or mistake, which puts citizens’ rights under Articles 14, 15, 19, and 21 at greater danger of being violated. Consequently, the aforementioned regulations are affected by the doctrine of proportionality and arbitrariness.
Issues with the 2016 Aadhaar Act
The Act grants the Unique Identification Authority of India (hereafter “the Authority”) extensive authority to change an individual’s biometric and demographic data under sections 6, 23(2)(f), (23(2)(g), 31, and 54(2).(e). These provisions are as follows:
Section 6.Update of specific data.
In order to maintain the accuracy of their information in the Central Identities Data Repository, the Authority may periodically compel owners of Aadhaar numbers to update their biometric and demographic data in accordance with any applicable rules.
Section 23: Authority’s duties and powers.
(f) keeping track of and updating persona information in the Central Identities Data Repository in accordance with any applicable rules.(g) removing and deactivating an Aadhaar number and information associated with it in accordance with any applicable legislation. Changes to biometric or demographic data are covered under Section 31.
(1) If an Aadhaar number holder’s demographic information is later discovered to be inaccurate or changed, they must request the Authority to update that information in their record in the Central Identities Data Repository in accordance with any applicable regulations.
(2) The owner of an Aadhaar number must request the Authority to make the necessary modifications to his record in the Central Identities Data Repository in accordance with any applicable rules if any biometric information is lost or altered later for any reason.
(3) Upon receiving a request made according to subsection (1) or subsection (2), the Authority may, if it is satisfied, make the necessary changes to the record pertaining to the Aadhaar number holder in question and notify the Aadhaar number holder in the question of such changes.
(4) No identification information in the Central Identities Data Repository may be changed other than as permitted by this Act or any applicable legislation.
Power of Authority Section 54
There is no set deadline under the aforementioned provisions for finishing the updating process. The Aadhaar (Enrolment and Update) Regulations, 2016 (hence “the Regulations”), adopted by the Authority and published in the official Gazette on September 14, 2016, do not provide a deadline for finishing the update procedure.[2] In addition, the Authority has adopted the UIDAI Data Update Policy (hence “the Policy”), which similarly does not specify a deadline for finishing the update procedure.[3] Additionally, the resident must receive a refusal letter from the authority if the update request is denied. A deadline for sending the letter is not specified in the Policy. This demonstrates that the Rules and the
Abundant Delegation
To update the data, the Authority might designate registrars or enter into an agreement or Memorandum of Understanding with other bodies. The following provisions give the Authority the necessary authority:
Chapter 23 Section 3 The Authority may,—
(a) enter into an agreement or Memorandum of Understanding with the Central Government, State Governments, Union territories, or other agencies for the purpose of carrying out any of the functions related to the information collection, storage, processing, or delivery to individuals for Aadhaar numbers or performing authentication;
(b) by notification, engage and authorize such agencies to collect, store, secure, process, or authenticate information, or perform such other related duties as may be necessary.
The Authority and registrars are also able to choose private companies to update the data, giving them both a great deal of discretion. The standards of the doctrine of permissible limits under delegated legislation are not met by any of these clauses. On Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. CST, reliance has been put.
But such a delegating procedure is not without risk. A legislature that is overworked or one that is under the sway of a strong executive may improperly go beyond the bounds of delegation. It may not establish any policy at all, may do so in generic terms, may not establish any guidelines for the Executive’s direction, and may give the Executive unfettered power.
Without any specific legal guidance specified in the Act, the Executive cannot be entrusted with the creation of policies, procedures, or systems for updating and deactivating Aadhaar numbers. The goal of good governance and the effective targeted distribution of subsidies and services to all Indian residents depends on the updating, assigning, and deactivating of Aadhaar numbers. Therefore, such a duty cannot be given to the Authority, who in turn has the authority to give it to the Registrars and other bodies under the Act, without the Legislature issuing guidelines.
It is impossible to infer from Sections 23, 31, or 54 of the Act any legislative policy regarding a strict deadline for finishing the update/assignment process. In addition, under Section
Sections 23, 6, 31, and 54 of the Statute provide the Authority broad authority to formulate policies, and these provisions are considered “essential legislative functions.” Therefore, the fault of excessive delegation affects these provisions. The case of Harishankar Bagla v. State of Madhya Pradesh, in which it was determined that the primary legislative powers cannot be transferred, has been cited. In other words, a measure’s articulation as a rule of behavior cannot be the subject of a delegation by the legislature of its duty to establish legislative policy. The legislature must set down the guiding principles of the legislation and the general policy that will apply to all pending cases as well as a benchmark to serve as a reference for those in positions of authority.
The Authority has broad authority to create policies under Sections 23, 6, 31, and 54 of the Statute, which is regarded as performing “essential legislative functions.” As a result, these clauses suffer from the flaw of excessive delegation. It has been argued that the case of Harishankar Bagla v. State of Madhya Pradesh established that the primary legislative powers cannot be transferred. In other words, the legislature cannot abdicate its responsibility to define legislative policy in order to delegate the articulation of a legislation as a norm of behaviour. The legislative body is required to establish the guiding principles of the legislation, the general policy that will be applied to all cases currently pending, as well as a benchmark to serve as a guide for those in positions of authority.
Sections 23, 6, 31, and 54 of the Statute provide the Authority broad authority to formulate policies, and these provisions are considered “essential legislative functions.” Therefore, the fault of excessive delegation affects these provisions. The case of Harishankar Bagla v. State of Madhya Pradesh, in which it was determined that the primary legislative powers cannot be transferred, has been cited. In other words, a measure’s articulation as a rule of behaviour cannot be the subject of a delegation by the legislature of its duty to establish legislative policy. The legislature must set down the guiding principles of the legislation and the general policy that will apply to all pending cases as well as a benchmark to serve as a reference for those in positions of authority.
A breach of Article 14.
Since neither Section 31(3) of the Act nor the Regulation enacted under this Section provides specific grounds with respect to which update requests will be accepted and which will be rejected, the unguided administrative discretion granted to the Authority under the Act in the impugned Sections violates Article 14 of the Constitution of India, 1950. Additionally, the updating agency is not required to provide a justification for rejecting the same. This offers the updating agencies a lot of latitudes. According to Section 31(3) of the Act,
Changes to biometric or demographic data are covered under Section 31.
(3) Upon receiving a request made under to subsection (1) or subsection (2), the Authority may, if it is satisfied, make any necessary changes to the record pertaining to the Aadhaar number holder in question and notify the Aadhaar number holder in question of such changes.[9]
The phrase “if it is satisfied” grants the Authority unrestricted discretion to accept or reject the request for an update. Furthermore, nowhere in the Act can any guidance regarding how to use this discretion be derived. The Supreme Court ruled in Subramanian Swamy v. CBI that one of Article 14’s two dimensions is:
extreme delegation of power, giving the executive unrestricted and unguided authority,
Infringement of Article 19
The challenged provisions violate the fundamental rights protected by Article 19 of the Constitution because they prevent people from exercising their freedoms under that article because they can’t use their Aadhaar, which has become necessary for a number of purposes.
Infringement against Article 21
Article 21 of the Constitution is violated by the contested provisions. They infringe on the right to live in dignity since they were not passed after following the proper legal procedures. Maneka Gandhi v. Union of India held that “procedure” in Article 21 refers to a fair process, not a formal one. The procedure outlined in the provisions must be followed, as well as the.
Conclusion
Numerous concerns about the unacceptably long wait times for Aadhaar updates have been made to the Consumer Forum.[22] Since it is not practical for the Authority to oversee all of the updating agencies’ daily operations, this allows them additional leeway to abuse their position. As a result, the residents’ only recourse against any unjustified delay in updating data is to register a complaint with the UIDAI Grievance Redressal Cell. It should be observed that Section 23(2)(s) leaves the creation of a framework for grievance redress to the authority’s discretion, which is yet another issue. People are greatly inconvenienced by this since Section 7.
References
[1] Act of 2016 known as Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services).
[2] Regulations for the Unique IbIbidentification Authority of India (Transaction of Business with The Authority) from 2016.
[3] Data Update Policy for UIBIBIDAI, 12 December 2014.
[4] UIBIBIDAI Complaint Board’s National Consumer Complaint Forum, accessible at https://www.complaintboard.in/complaints-reviews/uIbIbidai-l261629.html (last accessed on 6th June, 2018).
[5] The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 is referenced in [5].
[6] CST v. Gwalior Rayon Silk Mfg. (Wvg.) Co., (1974) 4 SCC 98, 15.
[7] Harishankar Bagla v. State of Madhya Pradesh, 1 SCR 380 (1955), 9.
[8] Kishan Prakash Sharma v. Union of India, 5 SCC 212 (2001), 18.
[9] The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 is referenced in [9].