Features and Provisions of the Constitution

Citizenship Amendment Bill, 2016

Provisions of the Bill

• Provision of Citizenship to Religious Minorities: Amend the Citizenship Act, 1955 to make undocumented Parsis, Christians, Jains, Hindus, Buddhists and Sikhs who are migrants from Afghanistan, Pakistan and Bangladesh eligible for citizenship
• Reduced Requirement of Domicile Period: The amendment reduces the residency period of migrants from 11 years to 6 years

Issues of the Bill

• Violation of Equality: The provision of citizenship to communities based on religion violates Articles 14 and 15 of the constitution that advocates equality before law and prohibition of discrimination. Only the former is available for foreigners
• Antithetical to Secularism: The SC has identified secularism as basic feature of the Indian constitution. The bill that avoids provision to certain religious communities could thus be unconstitutional
• Undoing the NRC: Provision of citizenship to illegal migrants is at odds with the NRC exercise carried out in Assam that aims to find and deport illegal migrants who are not original residents of Assam
• Law and Order Issues: Citizenship provision that leads to accumulation of social and political capital can lead to law and order issues in North-East that has a sensitive socio-cultural fabric
• Demographic Alteration:
  • Many of the North-East states have opposed the amendment citing changes to demography that is divergent to the interest of the indigenous tribes with regard to access to resources, economic and political power
  • Article 19 sub-sections advocate that restrictions on movement, residence and settlement are placed in the light of interest of the Scheduled tribes

Special Marriages Act

 The Supreme Court observed that a woman retains her religious identity in the event of an inter-religious marriage that takes place under the Special Marriages Act, a woman retains her religious identity unless she herself chooses otherwise. The SC hence upheld the fundamental right to freedom of religion, dignity and life guaranteed by the constitution.

Categorization of OBCs

 The Union government is contemplating sub-categories within the OBC community in a bid to equitably distribute benefits of reservation accorded to OBCs. Several Committee reports in the past have suggested that benefits of OBC reservation are cornered by certain sections that are affluent and better social status while the fringe groups remain excluded from benefits.

 Sub-categorization would hence ensure equity in reservation benefits while also being compliant with the SC ruling in the Indra Sawhney case where it put forward a ceiling of 50% on reservations allotted to all backward classes.

Privacy as a fundamental right

 The SC in the Puttuswamy vs Union of India case identified Right to Privacy as a fundamental right under Article 21 of the constitution.

Why the necessity for the right to privacy?

• Previously the court was engaged in fixed cases of privacy such as phone tapping and police surveillance, however this time it has embarked on a complex jurisprudence process where the court is now liable to define its contours and limitations as any fundamental right has

Aadhar vs Privacy Concerns

The SC is currently hearing a case challenging the constitutional validity of using Aadhar to link mobile phones and bank accounts.

• State Surveillance: Government is capable of monitoring its citizens by interlinking of databases of private information with the Aadhar card being linked to PAN Cards. Hence citizens need safeguards from state’s arbitrary actions or misuse of possessed private information
• Safety of Data: Aadhar is used to provide several government services of various departments and the wider its usage more susceptible it is to misuse, manipulation and data theft. Database linking without the backing of a robust data protection law is hence unwarranted
• Violation of Article 300A: It guarantees every citizen right to his or her personal property. Bank accounts and mobile phones being personal property of users, individuals shall not be deprived of the same

Way Forward

• Streamline Uses: Aadhar card’s usage for various activities have proliferated and the widening spectrum of usages increase chances for it to be used an instrument of surveillance
• Independent Regulator for Data Privacy: An independent regulator backed by a robust law can ensure greater accountability on data privacy and prevent arbitrary usage of data
• Data Privacy Laws: Citizens need to be protected from arbitrary usage of their data from private and public entities via robust data privacy laws that puts accountability of data usage and safety on holders of citizen data

Supreme Court Judgement on Aadhar

                The SC upheld the constitutional validity of AADHAR pointing out that it is critical to ensuring basic services and amenities through public governance system. As an ID system, AADHAR was effective in streamlining public resources and benefits eliminating errors of inclusion and exclusion.

Points of the Verdict

1. Constitutionally Valid: The Majority verdict identified Aadhar as tool of good governance that was a reasonable restriction on right of privacy.
2. Permitted under Aadhar:
   1. Linking of PAN
   2. Filing of IT returns
   3. Access to government welfare programs and subsidies
3. Struck down by Court
   1. Section 57: The AADHAR Act which provided that private companies shall demand AADHAR as an ID for services of telecom, education, mobile wallet and banking services is to be struck down as there was no rationale to this
   2. Education: CBSE, UGC, NET cannot demand AADHAR as ID for exam verification purposes

What constitutes the right to privacy

• The court must deal with the amorphous nature of the term as it can include wide ranging rights from protection from state surveillance, publication of private information, and access to personal data, interlinking of databases of private information, bodily integrity, freedom from compelled speech and right to dissent and movement.

Concerns of right to privacy being a fundamental right

• Freedom of Speech vs Privacy: Privacy as a fundamental right may conflict with free speech and dissent being identified as violation of another’s privacy. This may reduce accountability of representatives in Indian democracy
• Criminal Investigations: Excessive Data protections may hamper policing and security agencies from procuring requisite data for smooth investigation
• Marital Rape: Privacy may be used as a guide to justify abusive sexual relationships within household that compromise dignity of women

Virtual Aadhar ID

The UIDAI has introduced the concept of virtual ID that can be used in lieu of Aadhaar number at the time of authentication, thus eliminating the need to divulge the Aadhaar number of the card holder. The Virtual ID can only be generated by the card holder through the UIDAI website.

The move is meant to protect the data of cardholders against arbitrary usage but many fear that it has come too little too late as many have already parted with their Aadhaar numbers. Many of Authentication User Agencies (AUAs) categorised as ‘global AUAs’ are exempt from using virtual ID which negates the purposefulness of Virtual ID.

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