The Aadhar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 – a Money Bill or not?

THIS ARTICLE WAS WRITTEN BY KAVYA MATHUR A STUDENT OF NATIONAL LAW UNIVERSITY, JODHPUR.

The recently talked about, The Aadhar Bill, has been certified by the Lok Sabha speaker, Sumitra Mahajan, as a money bill. There are a lot of speculations and questions raised by the Opposition regarding it being a money bill. The Aadhar project was initially envisaged as a security requirement in the aftermath of the Kargil War by the then NDA government and this conception is indeed what is behind the 12-digit biometric unique identification number; every individual is given a unique UID number which is stored in a centralised database linked to that individual’s demographic and biometric information.

Money bills are governed by Articles 108, 109, 110, 111 and 117 of the Constitution and Rules 72, 96, 103-108 of the Rules of Procedure and Conduct of Business in Lok Sabha. Article 110 of our Constitution defines exactly what a money bill is. Bills which exclusively contain provisions for imposition and abolition of taxes, for appropriation of money out of the Consolidated Fund, etc. are certified as money bills. The Aadhar Bill cannot be termed as a money bill because it did not “contain only provisions” dealing with the matters enumerated in the Article 110(1) from (a) to (g).The Aadhar Bill could have been considered a money bill if it had dealt only with the flow of money in and out of the Consolidated Fund of India because the bill has to be only and exclusively about the matters specified in the Article. However, it deals with a lot more than just this.

It aims to provide “good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assignment of unique identity numbers to such individuals.” It also has other provisions about privacy, disclosure of information in the interest of national security, matters related to the process of saving subsidies, creation of a regulatory body, administration of the unique identification number from the information that needs to be collected, to how it can be shared, and penalties for misuse and other offences. The Aadhar programme could also eventually be used for efficient government as well as marketplace transactions. In fact, the UIDAI website states that “Aadhar’s guarantee of unique and centralized, online identity verification would be the basis for building multiple services and applications, and facilitating greater connectivity to markets.” Also, in Clause 57 of the Bill, it is stated that one can also use this identification number for any other function. It provides that “nothing in the proposed legislation shall prevent the use of the Aadhar number for any other purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect.” It permits the use of Aadhar to private entities for the purposes of establishing identity. Hence, this suggests that this could open up, lawfully, the scope for linking Aadhar with the markets. In this way, it does not meet the criteria of a money bill because it is a mere financial bill under Article 117 of the Constitution, which talks about taking money out of the Consolidated Fund of India and other matters as well.

The test to be applied is to analyze if the pith and substance of the proposed legislation is expenditure from the Consolidated Fund of India. It is to be noted that the Aadhar Bill cannot be tabled as a money bill because it doesn’t prescribe any specific subsidy to precisely fall squarely within clause (c) or (d) of Article 110(1).  It doesn’t decide entitlement for the subsidy, it will merely be a proof of identity.  The Bill seeks to provide statutory backing for the transfer of government subsidies and benefits, and to put in place a regulatory framework to protect the core biometric information of Aadhar cardholders from any unauthorized disclosure or sharing. When signed into law, the Bill will make Aadhar, the unique biometric identification number, central to all social security schemes and services of the Government. The Bill is not exclusively dealing with revenues or taxes; there is only transfer of benefits using the Aadhar card. Hence, this test fails to prove that the Bill is a money bill.

According to Article 109 of the Constitution, a money bill is deemed to have been passed by both the Houses even if it is passed only in the Lok Sabha. Rajya Sabha’s approval is not necessary although it can recommend amendments to a money bill. But these recommendations have to be agreed by the Lok Sabha to become effective. The Rajya Sabha has to return a money Bill within 14 days after receiving it from Lok Sabha, failing which the Bill is considered passed by the Upper House.

This means that the Opposition will be unable to force any amendments to the proposed legislation. It will be the first step towards making the Rajya Sabha redundant in the days to come, colourable exercise of power, wherein under guise of power conferred for a particular purpose, the legislature seeks to achieve another purpose, for which it is otherwise not competent to legislate on. The Rajya Sabha and the Lok Sabha are two equal wheels of the same chariot of Indian democracy, if one of the wheel does not run, it will hamper democracy.

The purpose of this Bill is to totally neglect the system of checks and balances in legislative business. It has been fraudulently introduced as a money bill in the Lok Sabha to ensure that the Rajya Sabha, where the BJP does not enjoy a majority, does not send it to a multi-party standing committee for closer examination. The practice of getting a “certificate” from the Speaker of the Lok Sabha cannot become the blatant methodology of bypassing the Upper House. The Aadhar Bill should move to the Rajya Sabha and a deliberate discussion is a prerequisite as it has impacted the lives of citizens. Since it is “Council of States” and in actual it is the states who are to implement the Bill at the local levels, thereby making the states’ views necessary. Thus, it is not in the spirit of cooperative federalism to not consider the frame of reference of the Upper House because when fundamental rights of citizens may potentially be violated by a legislation, parliamentary procedures cannot be reduced to farce.

Whenever any bill goes through a Select Committee, it comes out as a better version. But because it is introduced as a money bill, the possibility to send it to a Select Committee is lowered. It also won’t be subjected to any joint parliamentary committees ( under Article 108 of the Constitution), to which contentious legislations are often referred for greater scrutiny. This amounts to undermining the constructive criticism of government policies. In future, this could cause a dangerous precedent to be laid. It will be against the spirit of co-operation between ruling party and opposition party. It can be contemplated as the autocracy of the Government as they are in a majority in Lok Sabha and thus dubbing it as a money bill will empower them to pass it easily. Hence, it should not be introduced in a haste as a money bill.

There are several instances of previous legislations, brought in through the normal process, that also draw from the same Consolidated Fund of India. There is no point in treating this Bill differently. For instance, President’s (Emoluments and) Pension Act. This bill has provisions that money has to be taken out of the Consolidated Fund to pay salary to the President but there is nothing in this bill as per the provisions of Article 110.

An impression of supremacy of Lok Sabha over Rajya Sabha should not be given when it comes to important legislations. It will set a bad precedent for the future governments to bring accounts of past events to legitimize their actions, which may not be in the interest of democracy and parliamentary system of our country. The Speaker has a specific responsibility to prevent misuse of the clause which gives her the clincher in such matters in the interests of democracy and parliamentary system of India. Hence, Aadhar Bill should also be passed as an ordinary bill and a fair chance for elaborate discussion should be given to both the Houses of the Legislature.