Why is the Mainstream Media Silent on the (il)legality of the UID Project?- II

In my last post on the UID project of the UPA government, I had raised a few issues about the manner in which the UPA went about implementing the project by circumventing constitutional protocol. In this post, I will address specifically the fundamental legal infirmities of the campaign. In doing so, I will keep this post as lucid as possible without inundating it with legalese.

As stated in the last post, when the Ministry of Planning was asked to clarify on the legality of constituting an executive body such as the UIDAI without there being a specific legislation in place which sanctioned the collection of information under the UID project, the Ministry cited the Attorney General’s opinion who seems to have relied upon Article 73 of the Constitution.

Now what does Article 73 envisage and permit? Below is the relevant portion of the Article which the Attorney General appears to have relied upon to justify what he calls “Executive Authorisation”:

Article 73: Extent of the Executive Power of the Union

  1. Subject to the provisions of this Constitution, the executive power of the Union shall extend
    1. To the matters with respect to which Parliament has power to make laws

Let’s interpret this Article step by step. The provision starts with a contingent clause i.e. a “Subject to” clause. This means that all other relevant provisions of the Constitution shall act as a limitation on the executive power of the Central Government (“Union”) to deal with matters with respect to which the Parliament has the right to legislate.

Simply put, if there is any other provision in the Constitution which prevents the Central Government from issuing notifications in the absence of a specific legislation made by the Parliament, such notifications would be patently unconstitutional.

The UID, without a doubt, deals with the private details of individuals, and consequently falls within the realm of “privacy”. The Supreme Court has time and gain clarified that privacy-related issues fall within the ambit of Article 21 since right to privacy has been interpreted as being integral to “right to life” under Article 21.

Therefore, the question is, does the Constitution permit intrusion into privacy through mere executive orders such as the UIDAI notification? Or does the Constitution mandate passing a legislation which is fair and reasonable before private details can be collected?

Article 21 states,

Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law

Clearly, Article 21 frowns upon intrusion of privacy except “according to procedure established by law”. Therefore, if the UID notification does not fall under the category of “procedure established by law”, the UPA government cannot invoke its “executive powers” under Article 73 to lend legal sanctity to the UID project.

In as early as 1950, in what is still one of the most celebrated decisions of the Supreme Court on the power of the State to summarily abridge the rights of an individual, the Apex Court in A.K.Gopalan v. The State of Madras held that the reference to “law” in “procedure established by law” in Article 21 is to a formal statute/legislation. In other words, there must be a specific statute which must be invoked to impose restrictions on the life and liberty of any person. This applies to restrictions on and intrusions into the privacy of any person (not just citizen).

Keeping with above requirement of a formal legislation, when information is sought by passport offices, they do so under the Passports Act, 1967. When Road Transport authorities seek details for issuing driving licenses and permits, they do so under the Motor Vehicles Act, 1988 and Central Motor Vehicles Rules. In stark contrast to these legislations, there is no parent legislation which governs the UID notification. This ground alone is sufficient to strike down the UID notification as being unconstitutional. But the story doesn’t end there…

Let’s take a look at what the UID Authority is empowered to do:

(i)    Generate and assign UID numbers

(ii)    Define mechanisms and processes for interlinking UID with partner databases on a continuous basis.

(iii)    Frame policies and administrative procedures related to updating mechanism and maintenance of UID data base on an ongoing basis.

(iv)    Coordinate / liaise with implementation partners and user agencies as also define conflict resolution mechanism.

(v)    Define usage and applicability of UID for delivery of various services.

(vi)    Operate and manage all stages of UID lifecycle.

(vii)    Adopt phased approach for implementation of UID especially with reference to approved timelines.

(viii)    Take necessary steps to ensure collation of NPR with UID (as per approved strategy).

(ix)    Ensure ways for leveraging field level institutions appropriately such as Panchayati Raj Institutions (PRIs) in establishing linkages across partner agencies as well as its validation while cross linking with other designated agencies.

(x)    Evolve strategy for awareness and communication of UID and its usage.

(xi)    Identify new partner / user agencies.

(xii)    Issue necessary instructions to agencies that undertake creation of data bases, to ensure standardization of data elements that are collected and digitized and enable collation and correlation with UID and its partner data bases.

(xiii)    Frame policies and administrative procedures related to hiring / retention / mobilization of resources, outsourcing of various tasks and budgeting and planning for UIDAI and all State units under UIDAI.

The sheer magnitude of powers vested in an executive authority such as the UIDAI in relation to an issue which affects privacy of individuals, in the absence of a governing legislation which provides for safeguards, is atrocious and outrageous.

Where is the safeguard to prevent the use of skewed metrics to profile the population, and that too to facilitate anti-national policies of the Government of the day? Where is the attribution of liability for goof-ups and blunders committed by the authorities? When illegal migration is a raging issue, where is the caveat against legitimizing illegal immigrants by providing them with Aadhaar cards?

Excessive delegation of such vast powers to the executive authority is a strict no-no under Indian law. Here’s what the Supreme Court had to say in Devi Das Gopal Krishnan and Ors.Vs. State of Punjab and Ors. (1967) on the issue of excessive delegation:

The Constitution confers a power and imposes a duty on the legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate items functions in favor of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency.

But there is a danger inherent in such a process of delegation. An overburdened legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may not declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself and control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation..”

This was the observation of the Hon’ble Supreme Court in a case where there was already governing parent legislation in place. In the case of the UID project, I repeat there is no parent legislation at all. Therefore, this caveat against vesting an executive authority with unchecked powers applies all the more to the UID authority.

In light of the above, I can’t help asking this question- How on earth have the Congress-led UPA government in the Centre and a few State Congress governments gotten away with the blatant implementation of the UID project for 4 years since 2009. Where are the bleeding heart liberal voices and mombattiwallahs who arrogate to themselves the exalted status of being the sole guardians of civil liberties? Hypocrisy much? I’d say so…

I’ll continue with a few more thoughts on the UID in the next post.

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J. Sai Deepak

Engineer-turned-Advocate, High Court of Delhi. Founder of the "blawg" "The Demanding Mistress" (http://thedemandingmistress.blogspot.in/).