Jaitely justifies LS' refusal to adopt proposed amendments to Aadhaar Bill

New Delhi : Justifying the Lok Sabah's turning down the five amendments to the Aadhaar (Targeted Delivery of Financial, Other Subsidies, Benefits & Services) Bill 2016 suggested by the Congress in the Rajya Sabha, Finance Minister Arun Jaitley on Friday said 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. These lacunae would have pushed the Aadhaar law to the realm of unconstitutionality. Obviously, the Lok Sabha did not agree with the suggestions, and in my view, rightly so," said the minister.

Explaining the potential ramifications had those five amendments been accepted by the Lower House, Jaitley wrote on his Facebook post, "The 2010 Bill drafted by the UPA had [certain] provisions in chapter VI, which led to 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, adding: "I have always strongly believed that, notwithstanding the jurisprudential debate on the Right to Privacy, it would be essential to recognize that, Privacy, is an essential aspect of personal liberty guaranteed by Article 21 of the Constitution."

Maintaining that the denial of privacy must, thus, be based on procedure that should be fair, just and reasonable, the minister said, "The 2016 law, therefore, contained stringent provisions both substantially and procedurally with regard to the Right of Privacy."

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

Stating that 'National Security' is the only ground on which a competent authority can share this information, he said, every decision of the competent authority has to be reviewed by a committee comprising the Cabinet Secretary, the Law Secretary and the Secretary, Information Technology, before it is given effect, while the period of the direction of this competent authority has been limited to a maximum of three months.

"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). 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," said the minister.

This principle is followed in most advanced liberal democracies; for example, in the United Kingdom, Section 28 of Personal Data Protection Act, 1998 provides that personal data are exempt from the data protection principles on grounds of safeguarding National Security, he 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. Certainly, they would have provided a scope much wider for encroaching upon privacy than the words 'National Security', which existed in both the 2010 and 2016 law, and would have potentially become the grounds for constitutional challenge at a later date," he maintained.

"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). 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'," said Jaitley.

They, further, proposed to delete Section 57 of the 2016 law, which merely says 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, while the proposed amendment wanted all future laws to be over-ruled, said the minister, adding that had a Money Bill started over-ruling future unknown legislations, it would have ceased to be a Money Bill.