Mitras Analysis of News : 1-7-2017

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1.Privacy challenges to Aadhaar (The Hindu)

2.Making the House rules (The Hindu)

3.Explained: Gorkhaland Issue

1.Privacy challenges to Aadhaar (The Hindu)

 Synoptic line: It throws light on the expansion of Aadhaar and a need to examine the issue by a larger bench of judges. (GS paper II)

Overview

  • The Unique Identification Authority of India (UIDAI) began only with the mandate to confirm a citizen’s unique identity. A stand-alone authority, with biometric information and fingerprints, which could, in cases of doubt, identify with certainty any claimant of government subsidies or special services. Aadhaar’s claim was to weed out duplicates and forgeries, thus ensuring targeted distribution by administrations.
  • However the expansion of Aadhaar continues. The Union government has made it mandatory to link the Aadhaar number with the permanent account number (PAN) of an individual with effect from July 1, 2017.
  • Earlier this month, the Supreme Court upheld the validity of an I-T Act provision making Aadhaar mandatory for allotment of PAN cards and ITR filing, but had put a partial stay on its implementation till a Constitution bench addressed the issue of right to privacy.
  • Supreme Court while reiterating its position that no beneficiary of a welfare scheme shall be denied benefits due to her for want of an Aadhaar number, a Bench said the government is free to “press” for Aadhaar for ‘non-welfare’ transactions or activities. However Supreme Court’s observations do not amount to a judicial order, they dispel some of the ambiguity relating to the scope of Aadhaar.

Background of Aadhaar

  • In the Aadhaar Act, a person’s “identity information” has two components: demographic information and biometric information. Demographic information includes details “related to the name, date of birth, address and other relevant information of an individual,” collected when an Aadhaar number is issued.
  • Demographic information explicitly precludes a few specific details, such as caste and religion, Further the Act allows the government to require you to inform the Unique Identity Authority of India (UIDAI) if your demographic information changes say, if you have a new address.
  • Biometric information includes photograph, fingerprints, iris scan. The Act also uses the concept of “core biometric information,” which is defined in the same way except that the word “photograph” is omitted. The boundary between core biometric information and other biometric information can, yet again, be modified by the government, except that core biometric information must include fingerprints and iris scan by definition.

Everyone is affected

  • Unique Identification Authority of India (UIDAI) began only with the mandate to confirm a citizen’s unique identity. A stand-alone authority, with biometric information and fingerprints, which could, in cases of doubt, identify with certainty any claimant of government subsidies or special services. Aadhaar’s claim was to weed out duplicates and forgeries, thus ensuring targeted distribution by administrations.
  • Aadhaar’s sole purpose was as a benign guarantor of identity in cases of doubt. Any attempt by government departments to overreach this mandate was resisted by the authority. In fact, when a court ordered access to the database for a police investigation in a criminal matter, the Aadhaar authority challenged the order in the Supreme Court.
  • The government publicised a prior notification in June 2017, under the Prevention of Money Laundering Act (PMLA). The notification makes it mandatory for bank account holders to produce an Aadhaar number.
  • The government has also deliberately misconstrued an earlier Supreme Court order in order to pressurise telecom operators to make Aadhaar a requirement for all mobile phone users. Even education and health services have been used to broaden the Aadhaar net and draw in more people into the dragnet.
  • Fundamental freedoms of the individual are being routinely sacrificed at the altar of administrative expediency and the forced sacrifice is justified as being necessary for the greater common good. Not since the forced sterilisations during the Emergency has a government been so invested in an administrative goal that it has abandoned the requirement to seek “the consent of the governed”.

Way ahead

  • It has been almost 700 days since the Supreme Court on August 11, 2015, referred the privacy challenges to Aadhaar to a larger Bench of possibly nine judges. The court needs to rule on whether the right to privacy is an established part of the fundamental right to life and liberty in this country.
  • Getting together nine judges to hear at length a constitutional matter of these proportions is an administrative nightmare for any Chief Justice. But failure to do so in time permits the state to set up an architecture of surveillance that cannot be undone later.
  • What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.
  • At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches.

Question: it is high time that govt. should clarify the impending controversies related to aadhar otherwise it will defeat the entire purpose of creating the aadhar itself. Comment.

 

2.Making the House rules (The Hindu)

 Synoptic line: It throws light on the idea of privilege enjoyed by Parliament and State legislatures and need to codify privilege. (GS paper II)

Overview

  • Recently the Karnataka Legislative Assembly has found two journalists guilty of breach of its privilege and sentenced them to jail. The power of privilege has been used against journalists in several instances.
  • Case once again raises the fundamental question of what are the privileges, in the absence of a code, how does one know whether an action is a breach of privilege or not? Power of privilege has been seen as detrimental to fundamental rights of the individual, thus there is need to restrict the use of privilege to proceedings of the legislature. Any member who is falsely accused of any impropriety can use the defamation route through courts. Therefore, it is important to codify them.

The idea of privilege

  • The idea of privilege emerged in England as Parliament started to protect itself from excesses by the monarch. It established several rights and privileges including the freedom of members of Parliament to freely speak and vote in Parliament (including its committees).
  • The Indian Constitution specifies the powers and privileges of Parliament in Article 105 and those of State legislatures in Article 194. In brief, they
  • Provide freedom of speech in Parliament subject to other provisions of the Constitution and standing orders of the House;
  • Give immunity for all speeches and votes in Parliament from judicial scrutiny; and
  • Allow Parliament and State legislatures to codify the privileges, and until then, have the same privileges as the British Parliament had in 1950.
  • Till now, Parliament and State legislatures have not passed any law to codify their privileges. There are several issues that need resolution like
  • What should be the privileges that protect the members of legislatures and the House?
  • How does the privilege power sit with fundamental rights of expression and personal liberty? It is clear that members of legislatures should be able to perform their legislative duties without any obstruction, and should be free to speak and vote without fear of legal repercussions.
  • Should the privilege extend to comments on the individual actions of members?
  • Whether the House should have the power to sentence a person to a jail term. (While the British Parliament continues to have such powers, it has not used it since 1880.)
  • The framers of our Constitution envisaged codification of privileges. In the Constituent Assembly, it was mentioned that “Parliament will define the powers and privileges, but until Parliament has undertaken the legislation and passes it, the privileges and powers of the House of Commons will apply. So, it is only a temporary affair.
  • Parliament has examined the issue of codification. In 2008, the Committee of Privileges of Lok Sabha felt that there was no need for codification. It noted that the House had recommended punishment only five times since the first Lok Sabha, and that allegations of misuse of its powers were due to a lack of understanding of its procedures.

Way ahead

  • There is need to find the right balance between fundamental rights of citizens and privilege of the legislature. The recent case in Karnataka gives another opportunity to examine the issue. Parliament and Legislative Assemblies should pass laws to codify privilege.

Note- The topic has been already covered in “Whose privilege?” dated 26th June.

Question: What type of arrangements can be adopted to curtail the controversy of freedom of speech under article 19 versus legislator’s privileges?

Explained

3.Gorkhaland Issue (GS paper II)

Introduction

  • The West Bengal government’s decision to impose Bengali language in all the schools from Class I-IX, has sparked a violent protest in the Gorkha-led Darjeeling. The army has had to be called in to pacify the situation in the region. The government has made special arrangements for the tourists to arrive safely in Siliguri, and from there to the state capital Kolkata.

Background

  • The crisis in Gorkhaland has been brewing for many decades and the stems from language. Gorkhaland consists of Nepali-speaking people of Darjeeling, Kalimpong, Kurseong and other hilly districts.
  • The people belonging to these areas hardly have any connection with the Bengali community and are different in ethnicity, culture and language.
  • In 1780, the Gorkhas captured Sikkim and most part of North Eastern states that includes Darjeeling, Siliguri, Simla, Nainital, Garhwal hills, Kumaon and Sutlej, that is, the entire region from Teesta to Sutlej. After 35 years of rule, the Gorkhas surrendered the territory to British in the Treaty of Segoulee in 1816, after they lost the Anglo-Nepal war.
  • However, though British handed over Darjeeling to Sikkim, it was taken back for political reasons in 1835. Before 1905, when Viceroy of India, Lord Curzon directed the partition of Bengal, Darjeeling was a part of Rajshahi division, which now falls in Bangladesh.
  • 1907- The first demand for Gorkhaland is submitted to Morley-Minto Reforms panel. After that on several occasions demands were made to the British government and then government of Independent India for separation from Bengal.
  • 1980-90: The demand for Gorkhaland was intensified in the 1980s under the leadership of Gorkha National Liberation Front.

Gorkha protests in independent India

  • In the above context, it may be worthwhile to note that the 8th Schedule of the Constitution lists Nepali as the official language of Darjeeling district as well as of Sikkim. In other words, there has existed a decades-long constitutional provision for education and public transactions to be conducted in Nepali in Darjeeling, without the compulsion to study and be proficient in Bengali at the official transactional level.
  • However, the fact of the matter is that the Gorkha inhabitants of Darjeeling and Kalimpong districts have been willingly acquiring a working knowledge of Bengali to facilitate transactions both at the state government level and with the plains people (mostly Bengalis, but also Koch-Rajbanshis and Santhals) residing in these districts. Nevertheless, the attempt to impose Bengali in Darjeeling and Kalimpong districts has angered their Gorkha inhabitants.
  • Darjeeling is West Bengal`s northern-most district and is strategically located at a distance of 441 kms from the Sino-Indian border. Earlier, during 1986-88, it had experienced another critical phase of public unrest on the Gorkha statehood issue. After a lot of internal violence and protracted negotiations among the Centre, state and the former Gorkha National Liberation Front (GNLF) led by Subhash Ghising, a Darjeeling Gorkha Hill Council (DGHC) was formed with autonomy over 19 functional areas devolved from the State List.
  • There have, however, been inadequacies in the functioning of the GTA because substantial administrative and fiscal authority has remained with the state government`s district heads, i.e., district magistrates, instead of being delegated to the executives under the GTA. Moreover, the entire resource allocating authority and a broad spectrum of fiscal powers have continued to remain vested with the state government headquartered at Kolkata.

Way ahead

  • The present agitation for Gorkhaland and the accompanying demands for scrapping the controversial Bengali language related order, withdrawal of all Central security forces from Darjeeling-Kalimpong, and the threat of a prolonged agitation have put the central and state governments in a serious bind. Prima facie, acceding to these demands is likely to have implications in other parts of the country. Already, some outfits such as the Bodoland Tribal Area Districts of Assam and the Indigenous Peoples` Front of Tripura, which too demand statehood for the groups they represent in Assam and Tripura, respectively, have extended support to the GJM.
  • In addition, other factors also need to be taken into account including the geographical contiguity of Darjeeling and Kalimpong to the border with China, the region’s backwardness, and the base it provides for the recruitment of local Gorkhas in the Army.
  • The arrangements for partial self-governance under gubernatorial aegis within the ambit of the 6th Schedule of the Constitution in many of the autonomous council areas of the north-east have not worked satisfactorily in terms of serving the interests of the targeted populace. This holds true for the GTA as well.
  • Notwithstanding that, it may still be judicious to try out various political alternatives in a graduated but decisive manner to address the Gorkhaland demand. Subject to a political consensus among Delhi, Kolkata and the local Gorkha leadership of Darjeeling-Kalimpong, there may still be some scope for a solution short of a full-fledged Gorkhaland state, provided the lacunae observed in the functioning of the GTA can be overcome and the governor`s role is made more substantive and direct in respect of the devolved functional areas, and operated as such.
  • A more effective autonomous institution could also be considered in the form of an empowered body statutorily on par with 6th Schedule areas and assigned, say, all the functional areas under the State List except law and order, maintenance of infrastructure like national and state highways, power transmission networks and disaster relief establishment.

Question: Giving complete autonomy to Gorkhaland will open a Pandora box of demands from other states and if demand is not conceded, then it will lead to guge protests. How govt. should respond ?

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