Engaging with Policy Makers

PRS LEGISLATIVE REVIEW

This Primer attempts to explain the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate how civil society groups have been able to engage in the process of law making.

Right to Information Act, 2005

The campaign for the right to information was started by a group of workers in a village in Rajasthan when they were not paid by the government for work done during a famine.  They formed a citizen group, Mazdoor Kisan Shakti Sangathan (MKSS).  This group was supported by several social activists and the press, and led to the formation of the National Campaign for People’s Right to Information (NCPRI) in 1996.

The NCPRI and Press Council of India formulated an initial draft of a right to information law in 1996.  The government introduced the Freedom of Information Bill in 2002. In August 2004, the NCPRI suggested a set of amendments to the Freedom of Information Act, 2002.  The National Advisory Council (NAC) endorsed many of these proposals, and the government introduced the Right to Information Bill in December 2004.  The law was enacted in 2005. 

The RTI Act is an example of how citizens groups can significantly affect government policy. This Primer explains the process by which a citizen group can participate and become actively involved in the process of lawmaking.  A number of cases have been used to demonstrate the various ways in which civil society groups have been able to engage with the legislative process. 

Who makes laws?

In India, the lawmaking bodies are Parliament at the central level and Legislative Assemblies and Councils at the state level.  Parliament consists of two Houses:  the Lok Sabha, or “House of the People,” and the Rajya Sabha, or “Council of States.”

How is a law made?

The process of enacting a new law can be broadly divided into four steps:

Step 1:   The need for a new law, or an amendment to an existing piece of legislation, is identified. This may be done either by the government or by citizen groups who can raise public awareness regarding the need for the law.

Sometimes individual Members of Parliament (MPs) can introduce Bills in Parliament, known as private member Bills, as ways to highlight the need for a law.  While such Bills are almost never passed into law, they can provide a framework or a context within which the government can introduce its own legislation on the same issue.

Step 2:   The concerned ministry drafts a text of the proposed law, which is called a ‘Bill’The Bill is circulated to other relevant ministries for inputs. Comments from the public on the proposed draft may also be invited. The draft is revised to incorporate such inputs and is then vetted by the Law Ministry.  It is then presented to the Cabinet for approval.

Step 3:   After the Cabinet approves the Bill, it is introduced in Parliament.  Under the Indian political system, Parliament is the central legislative (or law making) body.  Every Bill goes through three Readings in both Houses before it becomes an Act.

·         During the First Reading the Bill is introduced.  The introduction of a Bill may be opposed and the matter may be put to a vote in the House.  In August 2009, the Law Minister withdrew the motion to introduce the Judges (Disclosure of Assets and Liabilities) Bill as many MPs were opposed to the Bill, on grounds that it violated the Constitution.

After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker in case of the Lok Sabha, Chairman in case of Rajya Sabha) may refer the Bill to the concerned Departmentally Related Standing Committee for examination.  The Standing Committee considers the broad objectives and the specific clauses of the Bill referred to it and may invite public comments on a Bill.

On rare occasions, Bills which come under the ambit of a number of different ministries, may be referred to a Joint Committee.

The Committee then submits its recommendations in the form of a report to Parliament.

In the Second Reading (Consideration), the Bill is scrutinized thoroughly.  Each clause of the Bill is discussed and may be accepted, amended or rejected.

During the Third Reading (Passing), the House votes on the redrafted Bill.

If the Bill is passed in one House, it is then sent to the other House, where it goes through the second and third readings.

During the second reading, the government, or any MP, may introduce amendments to the Bill, some of which may be based on recommendations of the Standing Committee.  However, the government is not bound to accept the Committee’s recommendations.

 Step 4:   After both Houses of Parliament pass a Bill, it is presented to the President for assent.  She has the right to seek information and clarification about the Bill, and may return it to Parliament for reconsideration.  (This may be done only once.  If both Houses pass the Bill again, the President has to assent.)

Step 5:   After the President gives assent, the Bill is notified as an Act.  Subsequently, the Bill is brought into force and rules and regulations to implement the Act are framed by the concerned ministry, and tabled in Parliament.  In some cases, if the provisions in the Bill permit, the ministry may bring the Act into force over a period of time rather than all at once.  For instance, various sections of the Food Safety and Standards Act, 2006 were brought into force in three different stages between August, 2006 and August, 2008.  A number of sections of the Act have not yet been brought into force as of date.

Is the above process always followed?

This process is almost always followed.  However some Bills may not be referred to a Standing Committee. Bills such as the SEZ Bill, 2005 and the National Investigation Agency Bill, 2008 were not sent to a Standing Committee.

How is public participation possible during the process of lawmaking?

Step 1:   The role which can be played by citizen groups before and while the Bill is being drafted.

The case of the Right to Information Act cited on Page 1 is an example of citizen groups coming forward to participate in legislative the process of lawmaking.  Beginning with a movement started by a group of citizens, the law eventually became operational in October 2005.

Step 2:   When the government asks for public feedback on a Bill

Even before a Bill has been drafted, the relevant ministry might choose to advertise and seek inputs from experts and citizens.  This, though, is a rare occurrencen some cases, the concerned ministry drafts a new legislation and seeks public feedback before sending it for Cabinet approval.

A New Police ActThe current Police Act dates back to 1861.  The government felt the need to update this Act.  The Ministry of Home Affairs had invited suggestions from individuals and citizen groups which may be incorporated into a new Bill.

Draft Protection of Women against Sexual Harassment at Workplace Bill, 2007

The Ministry of Women and Child Development had prepared a Bill intended to provide for the protection of women against sexual harassment in the workplace. The ministry had put up a draft of the Bill on its website and had invited comments.

Step 3:   Engaging with Standing Committees.

After a Bill has been introduced, it is usually referred to the concerned Standing Committee which invites various stakeholders and experts for their suggestions.

This provides another opportunity for civil society and the public to get involved in legislation. Fifteen witnesses deposed before the Standing Committee on Rural Development while it was preparing the report on the National Rural Employment Guarantee Bill.  All Standing Committee meetings are closed door sessions which are not open to the general public or the media.  Citizens groups can approach the relevant Committee to ask to be allowed to depose before it.

The Scheduled Tribes (Recognition of Forest Rights) Bill, 2005

The Bill sought to recognise the rights of forest dwellers to land occupied by them.  The Bill was referred to a joint committee of Parliament, since it involved issues relevant to a number of ministries such as tribal affairs and environment.  The committee received 109 written submissions from organisations and individuals. In addition, 44 witnesses deposed before it.

The Food Safety and Standards Bill, 2005

The Food Safety and Standards Bill, 2005 seeks to consolidate several laws governing the food sector and establish a single reference point for all matters relating to food safety and standards.  The Standing Committee heard the views of a number of stakeholders including citizen groups such as VOICE, New Delhi, and Gandhi Peace Foundation, Kottayam.

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007

The Maintenance and Welfare of Parents and Senior Citizens Bill, 2007 seeks to make it a legal obligation for children and heirs to provide maintenance to senior citizens.

The Standing Committee had received written submissions and oral testimony from several groups as it discussed the Bill between May and July, 2007.  Such groups included the All India Senior Citizens Confederation, the Senior Citizens Service Forum and Age Care India, etc.  The Standing Committee submitted its report in August 2007.  The Bill was finally passed and enacted into law in December, 2007.

The government is not bound to accept the recommendations made by the Standing Committee.  In the case of the Food Safety and Standards Act, 2006, the government did not accept any of the Committee’s recommendations.

Even after the Standing Committee has finalised its recommendations, there is scope to reach out to Members of Parliament and political parties.  There are a number of instances in which political parties – allies in the ruling coalition or the opposition parties – have been able to prevent a Bill from being passed in Parliament or by forcing the government to make amendments to the Bill before being passed.

The Pension Fund Regulatory and Development Authority Bill, 2005

The Pension Fund Regulatory and Development Authority (PFRDA) Bill was introduced in Lok Sabha in March 2005.  The Bill proposes a framework for the development and regulation of pension funds in India in order to promote old age income security.  The Standing Committee presented its report in July 2005.  The Committee was in agreement with most of the provisions of the Bill.  However, the Bill was criticized by a number of trade unions and the Left Parties.

Following the opposition to the Bill, the government deferred the discussion and vote on the Bill. Subsequently, the PFRDA Bill lapsed with the dissolution of the 14th Lok Sabha.

Step 4:   After the Bill is passed by both the Houses and goes to the President.

In some rare cases, the President may ask Parliament to reconsider a Bill.

The Parliament (Prevention of Disqualification) Bill, 2006

Article 102 of the Constitution prohibits MPs from holding any office of profit, except that of a Minister or any office specifically exempted.  The Parliament (Prevention of Disqualification) Act, 1959 lists offices which are exempted.

In 2006, several petitions were filed with the Election Commission that a number of MPs were holding offices of profit.  The government introduced a Bill in May 2006 exempting a number of posts (including those held by some sitting MPs) from the definition of office of profit.  The Bill was passed by both Houses and sent to the President for his assent.

The President returned the Bill, seeking clarification on a number of issues, and asked Parliament to reconsider it.  Parliament passed the Bill again without any changes, following which the President gave his assent.  However, a Joint Parliamentary Committee was set up to go into the issues relating to the holding of offices of profit by MPs.

Step 5:   After the President of India has assented to a Bill and it is notified as an Act.

After an Act is passed by Parliament, it can still be challenged in the courts on grounds that it violates the provisions of the Constitution of India.

The AIIMS (Amendment) Act, 2007

In 2007, Parliament passed the AIIMS (Amendment) Act, 2007, which provided for the retirement of the director of AIIMS at the age of 65.

The Act was challenged in the Supreme Court by the then director of AIIMS, P. Venugopal on grounds that the Act was discriminatory and was introduced specifically to superannuate him.

The Supreme Court upheld this petition and struck down the Act.  It also ordered the reinstatement of Dr. Venugopal as director of the institution.

Step 6:   When the rules and regulations to the Act are being drafted.

The government may ask the public for comments and suggestions before framing rules and regulations under the Act

The Food Safety and Standards Act, 2006The Food Safety and Standards Authority of India has been set up under the Food Safety and Standards Act, 2006 to regulate safety and hygiene standards for different foods.

The regulator recently called for public comments on guidelines drafted by it.  The guidelines were put up by the regulator on its website.

During the process of drafting and the Bill being considered in Parliament, a variety of stakeholders may be involved.  The final Act is usually a compromise between competing interests.  Despite this, there is every reason for concerned citizens and groups to make every effort possible to engage with the process and ensure that they are able to make their voices heard. 

http://www.prsindia.org/parliamenttrack/primers/engaging-with-policy-makers-183/

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The National Identification Authority of India Bill, 2010

PRS LEGISLATIVE RESEARCH

The central government plans to issue a unique identification number (called Aadhaar) to every resident of India.  The number shall be linked to a resident’s demographic and biometric information.  A resident can use his Aadhaar number to identify himself anywhere in the country in order to access certain benefits and services.  The Bill seeks to establish the National Identification Authority and lay down the properties of Aadhaar, process of issuing the Aadhaar and safeguards for protection of privacy of Aadhaar number holders.

Highlights of the Bill

  • The Bill seeks to establish the National Identification Authority of India (NIAI) to issue unique identification numbers (called ‘Aadhaar’) to residents of India.
  • Every person residing in India is entitled to obtain an Aadhaar number after furnishing relevant demographic and biometric information.  No information related to race, religion, caste, language, income or health shall be collected.
  • The information collected shall be stored in the Central Identities Data Repository.  This shall be used to provide authentication services.
  • Sharing of data is prohibited except by the consent of the resident; by a court order; or for national security, if directed by an authorised official of the rank of Joint Secretary or above.
  • The Bill also establishes an Identity Review Committee which shall monitor the usage patterns of Aadhaar numbers.

Key Issues and Analysis

  • The Bill does not make it mandatory for an individual to enroll with the NIAI.  However, it does not prevent any service provider from prescribing Aadhaar as a mandatory requirement for availing services.
  • The information collected by NIAI may be shared with agencies engaged in delivery of public benefits and services with prior written consent of the Aadhaar holder.  The safeguards provided for preventing misuse of this information may be inadequate.
  • The Bill requires the NIAI to disclose identity information in the interest of national security, if so directed by an authorised officer.  The safeguards for protection of privacy differ from the Supreme Court guidelines on telephone tapping.
  • The Bill states that no court shall take cognizance of any offence, except on a complaint made by the NIAI.  This could result in a conflict of interest situation if the offence is committed by a member of the NIAI.
  • Details of demographic and biometric information to be recorded have been left to regulations.  This empowers the NIAI to collect additional information without prior approval from Parliament.

PART A: HIGHLIGHTS OF THE BILL

Context


At present, the central and the state governments in India issue different identity documents for specific purposes. These documents may be issued to individuals (passport, Election Card, PAN Card, driving license), or to households (ration card, Rashtriya Swasthya Bima Yojana card).1

In April 2000, a Group of Ministers was set up to review the national security system and to consider the recommendations of the Kargil Review Committee. The report on “Reforming the National Security System”, submitted in 2001, recommended that a multi-purpose National Identity Card (MNIC) should be issued, starting from the border districts.2 The purpose was to prepare a National Register of Indian Citizens.3 In 2003, the Citizenship Act, 1955 was amended to allow the central government to compulsorily register every citizen and issue them with identity cards.4 In March 2006, another project called the “Unique ID for the Below Poverty Line families” was approved by the Department of Information Technology. It was decided to merge the two schemes for which an Empowered Group of Ministers (chaired by Shri Pranab Mukherjee) was set up in December 2006.5

In November 2008, the EGoM approved certain decisions: (i) initially the Unique Identification Authority of India (UIDAI) would be notified as an executive authority (statutory authority to be constituted later); (ii) an initial database would be created from electoral rolls; (iii) UIDAI would take its own decision on how to build the database; and (iv) it would be anchored in the Planning Commission for five years.6 The UIDAI was notified by the Planning Commission on January 28, 2009 and Shri Nandan Nilekani was appointed as the Chairman.5

The Bill seeks to establish the National Identification Authority (earlier UIDAI) as a statutory authority and to specify its functions. It also entitles every resident of India to obtain a unique identification number.

Key Features


  • The National Identification Authority of India (NIAI) will issue unique identification numbers (called ‘Aadhaar’ numbers) to residents of India and any other category of people that may be specified. The NIAI shall have a chairperson and two part-time members.

Aadhaar Numbers

  • Every resident of India (regardless of citizenship) shall be entitled to obtain an Aadhaar number after furnishing demographic and biometric information. Demographic information shall include items such as name, age, gender and address. Biometric information shall include some biological attributes of the individual. Collection of information pertaining to race, religion, caste, language, income or health is specifically prohibited.
  • The Aadhaar number shall be issued after the information provided by the person is verified. It shall serve as proof of identity, subject to authentication. However, it should not be construed as proof of citizenship or domicile. The Aadhaar number holder may be required to update his biometric and demographic information.
  • The Aadhaar number shall be a random number and shall not bear any information of the individual. An Aadhaar number issued to an individual shall not be re-assigned to any other person.

Process of Issuing and Authenticating Aadhaar Numbers

  • There are three main steps in the process. First, information for each person shall be collected and verified after which an Aadhaar number shall be allotted. Second, the collected information shall be stored in a database called the Central Identities Data Repository. Finally, this repository shall be used to provide authentication services.
  • The NIAI shall appoint registrars and enrolling agencies to collect demographic and biometric information for the purpose of issuing Aadhaar numbers. Special measures shall be taken to issue Aadhaar numbers to certain groups such as women, children, migrant workers and others without a permanent address.
  • Service providers (such as banks, fair price shops etc.) may ask a customer to provide his Aadhaar number and biometrics as proof of identity. The service provider shall submit this information to NIAI through an electronic channel for online authentication. The NIAI, after verifying the correctness of the information provided, shall respond to the query with a positive or negative response but shall not divulge any demographic or biometric information.
  • The NIAI shall establish a grievance redressal mechanism to redress grievances of residents, registrars, enrolling agencies and service providers.

Disclosure of information

  • The NIAI shall be responsible for the security and confidentiality of information. It is required to take measures to protect information against loss or unauthorised access.
  • The NIAI or any agency which maintains the Central Identities Data Repository is forbidden from revealing any information stored in the repository.
  • There are four exceptions to this rule. First, an Aadhaar number holder may request the NIAI to provide access to his own identity information. He may also ask for information on authentication requests of his Aadhaar number. Second, the NIAI may share information of Aadhaar number holders, based on their written consent, with agencies engaged in delivery of public benefits and services. Third, the NIAI may reveal information in response to a court order. Finally, information may be revealed in the interest of national security, if directed by an authorised official of the rank of Joint Secretary or above in the central government.

Identity Review Committee

  • The central government may constitute an Identity Review Committee to analyse the extent and pattern of usage of Aadhaar numbers across the country. The Committee shall prepare a report annually and submit its recommendations to the central government. The report shall be laid before Parliament.
  • The Committee shall consist of a Chairperson and two members who shall be appointed on the advice of the Prime Minister, a Union Cabinet Minister and the Leader of Opposition in the Lok Sabha.

Offences and Penalties

  • The Bill lists several offences such as unauthorised collection of information, impersonation, manipulation of biometric information, and unauthorised access or damage to the Data Repository. Penalties vary from three years imprisonment and a fine of Rs 10,000 (for impersonation) to a fine of Rs 1 crore (for unauthorised access to the Data Repository). Penalties have also been prescribed for offences committed outside India.
  • The Bill states that no court shall take cognizance of any offence except on a complaint made by the NIAI.
PART B: KEY ISSUES AND ANALYSIS

The Bill aims to issue unique identification numbers to residents of India and to provide for a reliable method of identifying individuals. The UIDAI Strategy Overview7 states that identification will facilitate access to benefits and services, especially for vulnerable groups such as homeless persons, migrant labour etc. Issuance of biometric based identities is expected to reduce problems of identity frauds and ghost beneficiaries.

However, any database that stores personal information carries the risk of its misuse by various agencies (both public and private), which may affect an individual’s privacy. The UK National Identity Card scheme was scrapped in 2011. Some of the main reasons cited for scrapping the scheme were the cost of implementing the scheme and the infringement of civil liberties.8 The Real ID Act passed by the US in 2005 has also been opposed by many states on grounds of privacy and threat to data security.9

We discuss below the safeguards that are built into this Bill to protect Aadhaar holders against invasion of their privacy.

Enrolment – Voluntary or Mandatory


Clause 3(1)

The Bill does not make it mandatory for an individual to obtain an Aadhaar number. However, it does not prevent any service provider from prescribing Aadhaar as a mandatory requirement for availing services. This differs from the US where government agencies cannot deny benefits to individuals who do not possess or refuse to disclose their Social Security Number, unless specifically required by law.10

However, it must be noted that the success of Aadhaar in weeding out ‘ghost’ beneficiaries (in programmes such as the public distribution system) depends on mandatory enrollment. If enrollment is not mandatory, both authentication systems (identity card based and Aadhaar based) must coexist. In such a scenario, ‘ghost’ beneficiaries and people with multiple cards will choose to opt out of the Aadhaar system.

Safeguards for maintaining confidentiality and privacy of information


Information collected may be misused if safeguards to maintain privacy are inadequate. Though the Supreme Court has included privacy as part of the Right to Life,11 India does not have a specific law governing issues related to privacy. The government has formed a committee to draft a suitable law.12

We examine whether the Bill has sufficient safeguards if information is (a) shared with agencies engaged in delivery of public benefits and services; (b) disclosed to intelligence or law enforcement agencies; and (c) used to identify behaviour patterns through data mining.

Sharing information with agencies engaged in delivery of public benefits and services

Clause 23(1)(k)

The Bill allows NIAI to share the information of an Aadhaar number holder, based on his written consent, with agencies engaged in the delivery of public benefits and public services. However, it does not specify whether consent should be taken only once or at each instance a person avails of a new service. A one-time consent may be prone to misuse and this may affect an individual’s privacy.

Disclosure of information to intelligence or law enforcement agencies

Clause 33(b)

The Bill requires the NIAI to disclose information (including identity information of individuals) in the interest of national security. This will be on the direction of an authorised officer of the rank of Joint Secretary or above in the central government.

In 1996, the Supreme Court held that the state may tap telephones “only at the occurrence of any public emergency or in the interest of public safety” if (a) it is authorised by the Home Secretary of the central or state government; and (b) it is for a maximum period of six months. Each order of telephone tapping must also be investigated by a separate Review Committee within a period of two months from the date of issuance.13

The safeguards for protection of privacy in this Bill differ from those set out for phone tapping. First, the Bill permits sharing in the interest of ‘national security’ rather than for public emergency or public safety. Second, the order can be issued by an officer of the rank of Joint Secretary. Third, there is no limit for the time period for which the authentication data may be collected. Fourth, there is no mechanism for review.

Potential to profile individuals

The Bill does not specifically prohibit intelligence agencies from using the UID as a link (key) while running computer programmes across various datasets (such as telephone records, air travel records etc.) in order to recognise patterns of behaviour. Such techniques for pattern recognition can be used for various purposes such as detecting potential illegal activities.14 However, these can also lead to harassment of innocent individuals who get identified incorrectly as potential threats.15 As a safeguard against misuse, the US had introduced (but not passed) a legislation that required each agency that was engaged in data mining to submit an annual report to Congress on all such activities.16

Compensation for loss or unauthorised disclosure of information

Clauses 30, 37, 38, 39, 40

The Bill requires all persons with access to Aadhaar related information to keep it secure and confidential. It prescribes penalties for unauthorised access or intentional disclosure of information. However, it does not penalise any negligence that leads to loss of information. Also, it does not have a specific provision to compensate an individual in case his personal information is misused. This differs from the Information Technology Act, 2000, which states that a company handling ‘sensitive personal data’ is liable to pay compensation upto Rs 5 crore if it is ‘negligent in implementing and maintaining reasonable security practices and procedures’ with respect to such data.

Conflict of interest


Clause 46(1)

The Bill states that no court shall take cognizance of any offence punishable under the Act, except on a complaint made by the NIAI. Such a provision is usually included to ensure that the regulatory body vets all complaints before a criminal charge is filed.

However, unlike regulators such as the Securities and Exchange Board of India or the Reserve Bank of India, the NIAI also has a role in implementation and its members and employees have duties related to data security. This could result in a conflict of interest situation if the offence is committed by an employee of the NIAI.

Discretionary powers under delegated legislation


Regulation of demographic and biometric information to be recorded

Clause 2(e), (h)

Demographic information: The Bill empowers the NIAI to specify demographic information that may be recorded. The only restriction imposed on NIAI is that it shall not record information pertaining to race, religion, caste, language, income or health of the individual. Keeping this definition in the Regulations provides the NIAI with the power to collect additional personal information, without prior approval from Parliament.

It may be noted that the enrolment form currently being used contains fields for capturing information such as the National Population Register (NPR) receipt number, mobile number, bank account number, etc.17 Though these fields are labelled ‘optional’, it is unclear why this additional information is being recorded.

Biometric information: The definition of biometric information will be specified in the Regulations. Currently, the UIDAI is capturing 10 fingerprints, iris scan and photograph as biometric information of each resident.18 However, the Bill does not prevent it from collecting other biometric information such as DNA.

Storage of authentication information

Clause 32(1)

The NIAI is required to maintain details of every request for authentication and the response provided. The Bill does not specify the maximum duration for which authentication data may be stored by the NIAI. This has been left to Regulations. Authentication data provides insights into usage patterns of an Aadhaar number holder. Data that has been recorded over a long duration of time may be misused for activities such as profiling an individual’s behaviour.

Different dates for notification of different clauses

Clause 1(3)

Some clauses of the Bill provide the NIAI with the power to collect and maintain data. Some other clauses provide safeguards against misuse. The Bill contains a blanket provision that allows the central government to notify different clauses on different dates. There is no requirement that the safeguard clauses should come into force by the time the provisions enabling collection of data are notified.

Appendix 1: Possible Applications of UID


We list below some possible applications of the Aadhaar number in facilitating access to benefits and services.

Table 1: Potential benefits of UID

Application Potential Benefits Remarks
Proof of Identity The Aadhaar number would provide proof of identity to every resident including migrants, homeless people, etc. The number is unique to each individual and a person’s biometric information is linked to it. This could facilitate access to various services, which need identity proof. Presently, various identity cards such as PAN card, voter’s identity card, ration card etc are accepted as proof of identity. About 82% of the adult population have the election card, 74% of the population have ration cards and 38% of the population have Rashtriya Swasthya Bima Yojana card.
Public Distribution System The Aadhaar number can eliminate duplicate cards and cards for non-existent persons (estimated to be about 17% of all cards). It could also reduce diversion at Fair Price Shops by ensuring that goods are distributed to the beneficiaries only after their biometrics are verified. UID cannot address errors in targeting of Below Poverty Line (BPL) families. Some estimates suggest that about 61% of the eligible population is excluded from the BPL lists while 25% of the non-poor household are included in the BPL list.
Financial Inclusion RBI has declared Aadhaar to be sufficient proof of identity to open a bank account. It could also facilitate authentication with Business Correspondents in remote areas. Currently, 41% of the adult population do not have bank accounts.
National Rural Employment Guarantee Act, 2005 It would be possible to identify duplicate and fake beneficiaries of NREGA. UID cannot address other problems of NREGA such as incorrect measurement of work, payment delays etc.
Sources: “Envisioning a role for Aadhaar in the Public Distribution System,” Working Paper, UIDAI, 2010; Performance Evaluation of Targeted Public Distribution System, Planning Commission, March 2005; “Management of Food Grains,” 73rd Report of the Public Accounts Committee, 2007-08, “Report of the Expert Group to Advise the Ministry of Rural Development on the Methodology for Conducting the Below Poverty Line Census for the 11th Five Year Plan,” Chairperson: Shri N.C. Saxena, August 2009; Discussion Paper on Aadhaar based Financial Inclusion, Report of the Working Group to Review the Business Correspondent Model, RBI, August 2009, Know Your Customer Guidelines, RBI, 2004; UID and NREGA, Working Paper; Lok Sabha Unstarred Question No. 2357, Dec 3, 2009; Lok Sabha Unstarred Question no. 4135 Answered on Dec 15, 2009; Public Distribution System and Other Sources of Household Consumption, 2004-05, NSSO Report (see http://mospi.nic.in/press_note_510-Final.htm), Lok Sabha Unstarred Question no. 2838 Answered on March 14, 2011.

Notes

[1].  Report of the Committee on Financial Sector Reforms, Planning Commission, Govt of India, 2009

[2].  “Group of Ministers’ Report on Reforming the National Security System,” Press Information Bureau, May 23, 2001

[3].  “Parliamentary Consultative Committee of MHA discusses Multi-purpose National Identity Card Project,” Press Information Bureau, Aug 21, 2003

[4].  Section 12 of The Citizenship (Amendment) Act, 2003

[5].  Unique Identification Authority of India, Planning Commission, Govt of India (see http://uidai.gov.in)

[6].  “Government approves issue of unique identity (UID) number to all residents,” PIB, Nov, 10, 2008

[7]. “UIDAI Strategy Overview”, UIDAI, Planning Commission, Govt of India, April 2010

[8].   Identity Documents Act, 2010 cancelled the ID card; “Identity cards scheme will be axed ‘within 100 days,’ BBC News, May 27, 2010; House of Commons debate on Identity Documents Bill on 9th July, 2010 (see http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100609/debtext/100609-0006.htm).

[9].  Real ID Act, 2005 (see http://thomas.loc.gov/cgi-bin/bdquery/z?d109:H.R.418:).

[10]. Section 7 of the Privacy Act, 1974 (see http://www.justice.gov/opcl/1974ssnu.htm).

[11].  See, for example, Kharak Singh vs State of UP, 1 SCR 332 (1964) and R. Rajagopal v. State of T.N (1994) 6 SCC 632.

[12].  “Approach Paper for a Legislation on Privacy,” Oct 18, 2010, Ministry of Personnel, Public Grievances and Pensions, Govt of India.

[13]. Writ Petition (C) No. 256 of 1991, People’s Union of Civil Liberties (PUCL) Vs. Union of India (UOI)

[14].  “Data Mining: Federal Efforts Cover a Wide Range of Uses,” US General Accounting Office, May 2004.

[15].  Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms

while countering terrorism, Martin Scheinin, UN Human Rights Council, Dec 28, 2009.

[16].  US Federal Agency Data Mining Reporting Act of 2007 (Introduced on Jan 10, 2007) (see http://thomas.loc.gov/cgi-bin/bdquery/z?d110:SN00236:@@@L&summ2=m&).

[17].  Enrolment Form of UID (see http://uidai.gov.in/images/FrontPageUpdates/ROB/D9%20Enrolment%20Form.JPG).

[18]. Biometrics Design Standards for UID Applications, UIDAI Committee on Biometrics, December 2009.


Prepared by:

Kaushiki Sanyal and Rohit Kumar  June 02, 2011

Relevant Links

The National Identification Authority of India Bill, 2010.pdf  Bill Text  (233.11 KB)
Legislative Brief - UID Bill 2010_June 2.pdf  Legislative Brief  (160.07 KB)
National Identification Authority Bill Summary.pdf  PRS Bill Summary  (129.92 KB)
UIDAI STRATEGY OVERVIEW.pdf  UIDAI Strategy Overview  (3.72 MB)
aproach_paper.pdf  Approach Paper for a Legislation on Privacy  (96.86 KB)
Circulated_Aadhaar_PDS_Note.pdf  Role for Aadhaar in PDS  (738.52 KB)

Should water be moved to Concurrent List?

Ramaswamy R. Iyer IN THE HINDU

Putting water on the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided.

The Union Ministry of Water Resources has for long been arguing for a shift of water to the Concurrent List without any serious expectation of its happening, but has now begun to pursue the idea more actively. The Ashok Chawla committee, which was primarily concerned with the question of rationalising the allocation of natural resources with a view to reducing the scope for corruption, was reported by the media to have recommended inter alia the shifting of water to the Concurrent List. There seems to be no such specific recommendation in the draft of the Committee’s report that one has seen, but the possibility is referred to in the text and there is an Annexe on the subject. These developments have revived the old debate.

Let us first be clear about the present constitutional position in relation to water. The general impression is that in India water is a State subject, but the position is not quite so simple. The primary entry in the Constitution relating to water is indeed Entry 17 in the State List, but it is explicitly made subject to the provisions of Entry 56 in the Union List which enables the Union to deal with inter-State rivers if Parliament legislates for the purpose. This means that if Parliament considers it “expedient in the public interest” that the “regulation and development” of an inter-State river, say the Ganga or Yamuna or Narmada, should be “under the control of the Union”, it can enact a law to that effect, and that law will give the Union legislative (and therefore executive) powers over that river. That enabling provision has not been used by Parliament. No law has been passed bringing any river under the control of the Union. Under Entry 56, Parliament did enact the River Boards Act 1956 providing for the establishment of River Boards for inter-State rivers, but no such board has been established under the Act. That Act is virtually a dead letter. The reasons are political, i.e., strong resistance by State governments to any enhancement of the role of the Central government.

Is the present constitutional division of legislative power relating to water between the Union and the States satisfactory? The Centre does not think so. None of the Commissions that has gone into the subject so far has recommended a change, largely because it seemed unrealistic. (The Sarkaria Commission thought that a change was unnecessary.)

The present writer had earlier argued against a move to shift water to the Concurrent List on two grounds. First, a move to put water into the Concurrent List at this stage will be generally regarded as a retrograde step that runs counter to the general trend towards decentralisation and enhanced federalism, and it will face serious political difficulty because there will be stout opposition from the States. Secondly, an entry in the Concurrent List will mean that both the Centre and the States can legislate on water, but the Centre can already do so in respect of inter-State rivers under Entry 56 but has not used that power. It seemed sensible to use that enabling provision, and also re-activate the River Boards Act, rather than pursue the difficult idea of a constitutional amendment to bring water on to the Concurrent List.

It will be seen that the above arguments against pursuing the idea of moving water to the Concurrent List are practical ones: the political difficulty of doing so, and the fact that the Centre can do certain things even without such a shift. That does not amount to a statement that there is no case for the shift. Let us ignore political and practical considerations, and ask: if the Constitution were being drafted for the first time now, where would one put water? The obvious and incontrovertible answer is: in the Concurrent List. There are several reasons for saying so.

First, it appears that to the Constitution-makers ‘water’ meant essentially river waters and irrigation. This is quite evident from the wording of the entries. In that context, it might have appeared appropriate to assign the primary role to the States, and provide a specific role for the Centre in relation to inter-State rivers. However, even from that limited perspective, a primary rather than a secondary or exceptional role for the Centre might well have been warranted: most of our important rivers are in fact inter-State, and inter-State (or inter-provincial) river water disputes were an old and vexed problem even at the time of drafting the Constitution.

Secondly, that limited perspective is in fact inadequate. Water as a subject is larger than rivers; ponds and lakes, springs, groundwater aquifers, glaciers, soil and atmospheric moisture, wetlands, and so on, are all forms of water and constitute a hydrological unity; and there is more to water than irrigation. If the environmental, ecological, social/human, and rights concerns relating to water had been as sharply present to the makers of the Constitution as they are to us, it seems very probable that the entries in the Constitution would have been different. (Incidentally, there are serious concerns now relating to groundwater — rapid depletion of aquifers in many parts of the country, the emergence of arsenic and fluoride in many States, etc. — and it is interesting that there is no explicit reference to groundwater or aquifers in the Constitution.)

Thirdly, the Constitution-makers could not have anticipated the sense of water scarcity and crisis that now looms large. It is clear that while action will be called for at the State and local levels, the perception of a crisis casts a great responsibility on the Centre: national initiatives will definitely be called for.

Fourthly, a new factor not foreseen even a few decades ago is climate change and its impact on water resources. This is a subject which is still under study and research, but it is clear that coordinated action will be called for not only at the national level but also at the regional and international levels. The Central government has necessarily to play a lead role in this regard.

The theoretical case for water being in the Concurrent List is thus unassailable. Of all the subjects that are or ought to be in the Concurrent List, water ranks higher than any other. The practical and political difficulties of shifting it there remain, but these would need to be overcome.

However, if those difficulties prove insuperable, then we have to settle for the second best course (a modest one) of greater use by the Centre of the legislative powers relating to inter-State rivers provided for in Entry 56 in the Union List, and re-activation of the dormant River Boards Act 1956. It would further have to be supplemented by recourse to the wide-ranging provisions of the Environment (Protection) Act 1986 (EPA). It is of course possible for Parliament to legislate on a State subject if a certain number of State assemblies pass resolutions to that effect: that was the route followed in the case of the Water (Control and Prevention of Pollution) Act 1974.

At present, the EPA is being extensively used by the Centre for water-related action. For instance, the Central Groundwater Authority was set up in 1998 by a notification under the EPA. More recently, when it was considered necessary to set up a National Ganga River Basin Authority this was done under the EPA, instead of following the right but difficult course of enacting legislation under Entry 56.

Finally, putting water into the Concurrent List is not necessarily an act of centralisation, though it could lead to such a development. That danger is real and needs to be avoided. Legislation and executive action must continue to be undertaken at the appropriate level (Central, State or local) in each case. The subsidiarity principle, i.e., the principle that decisions must be taken at the lowest appropriate level, will continue to be valid.

http://www.thehindu.com/opinion/lead/article2113384.ece