INTRODUCTION
This research Paper consists of the analysis of Government Policies & Roles of Legal Research in India. To understand the concept of we will be using the comparative analysis and try to understand the provisions of Legal research which enables the formulation of Government Policies.
Main aim to formulate any policy is to provide a welfare state equipped with law and order and with a robust infrastructure for carrying out development work to fulfill the dreams and aspiration of the framers of Indian constitution and its citizens. This can only be done, when the policies are so framed that they do not waste the resources and provide the necessary facilities to the targeted people at an invariably distinct pace.
Legal research is one of the effective method to enable the formulation of Government Policies, it helps in providing the beneficiaries, their deserved due and maintain the law and order in the society, the policy makers often use the methodology for understanding the legal perspective around the policy decision. Here we must also discuss how the influence of violation may infringe the fundamental rights of the citizen and create an environment of chaos in the society.
In this Paper Qualitative analysis shall be made for establishing and identifying the legality involved, case study of Aadhaar linking will also be used to understand the hypothesis in light of the latest verdict by Hon. Supreme Court regarding Aadhaar linking on 26 Sept’18.
Research Problem
To identify the role of Legal research in formulation of Government policies in India.
Statement in support of the problem
“You’re going 60 miles per hour with the rain pattering on your windshield, and the windshield is fogging up. And you’re on a highway, so you can’t stop, because you could cause a pile-up, but you have no idea what’s in front of you.” –
former RBI Governor RaghuramRajan
Government policies some time gets directionless due to short sightedness of the policy makers and discrete public appeasement.
Regardless of the fact that the aim of these policies is to form a ground for public service they infringe the fundamental right sometime in broader perspective.
Objectives of research
By means of the Case Study of Aadhaar verdict as passed by Hon. Supreme Court in 26 Sept’ 18[1] , we will try to formulate the role of Legal Research in Government policy making.
The agenda for discussion shall be, how the linking of Aadhaar with the bank accounts and other government facilities was made mandatory, its impact on the right to privacy as a matter of human dignity and other contemplated misuses as envisaged, during the course of hearing.
Statement In Support Of Objectives
“Human dignity … associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust.”[2]
Government
policies are essentially made to enable its citizens a life of dignity and
prosperity, continuous improvement is the necessity of the hour, it can only be
done by system improvement and the best way to improve the system and policies
is to adopt legal research methodology for achievement of the desired
objective.
[1] IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 494 OF 2012
[2] Ronald Dworkin, Taking Rights Seriously (A&C Black, 2013) 239
Research Methodology
The researcher has based this work on doctrinal method of legal research. It is basically an analytical research of legal rules, doctrines and data and their relationship. It is a qualitative study and based on articles in various books, papers, articles& internet resources. As the research is analytical in nature the researcher has adoptedcase study method for critical evaluation on the topic.
Hypothesis/Propositions
The recent case study of Aadhaar linkage is the best example to evaluate the role of legal research in government policy making.
Let us first examine the main aim of implementing Aadhaar scheme by UIDAI[1], it can be identified as :
- To provide for good governance, efficient, transparent and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to residents of India through assigning of unique identity numbers.
- To develop policy, procedure and system for issuing Aadhaar number to residents of India, who request for same by submitting their demographic information and biometric information by undergoing the process of enrolment.
- To develop policy, procedure and systems for Aadhaar holders for updating and authenticating their digital identity.
- Ensure availability, scalability and resilience of the technology infrastructure.
- Build a long term sustainable organization to carry forward the vision and values of the UIDAI.
- To ensure security and confidentiality of identity information and authentication records of individuals.
- To ensure compliance of Aadhaar Act by all individual and agencies in letter and spirit.
- To make regulations & rules consistent with the Aadhaar Act, for carrying out the provisions of the Aadhaar Act.
To ensure the objective of implementation, Government directed all citizens to link the Aadhaar card with various facilities in a mandatory way, subsequently RBI released notification[2]regarding the mandatory linkages as part of money laundering initiatives with certain riders & then revised it at a later date.
Implication of the RBI guidelines
All the private companies started requesting & accumulating Aadhaar Details of their customers and few also denied services citing the guidelines, private banks started asking for updation of Aadhaar number.
After few days came the news of data siphon and leakage of Aadhaar data[3] started coming frequently which created a atmosphere of terror among citizens and opened the way for Legal Research in this field , during the process of hearing of various cases , formulation of a consolidated view started which resulted in the streamlined policy perspective for future use.
Brief timeline is for Unique Identity is stated below[4]:
Govt, 2009-10
January 28, 2009: Planning Commission notification on UIDAI
September 2010: Programme launched in rural Maharashtra
2010-2011: National Identification Authority of India Bill, 2010 introduced; later referred to the Standing Committee on Finance, whose report flags issues of privacy, sensitive information etc
Court, 2012-13
November 30, 2012: First notice from Supreme Court following several PILs, with retired Justice K S Puttaswamy as the lead petitioner
September 23, 2013: Two-judge Bench orders all matters be heard
November 26, 2013: Bench orders that all states and Union Territories be impleaded as respondents
Bill passage, 2016
March 3, 2016: Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill 2016 introduced in LokSabha; later passed as Money Bill
May 10: Congress leader Jairam Ramesh moves SC challenging passage as Money Bill
October 21: S G Vombatkerevs Union of India challenges validity of Aadhaar Act
March 31: Government introduces Section 139AA to Income-Tax Act, making Aadhaar mandatory for PAN applications, filing returns
June 1: Aadhaar made mandatory for opening and maintaining bank accounts, for transactions of Rs 50,000 or more etc
June 9: Two-judge Bench upholds I-T Act Section 139AA; however, for those without Aadhaar card holders, PAN cards not to be treated as invalid for time being
Privacy and after, 2017-18
August 24, 2017: Nine-judge Bench rules that right to privacy is a fundamental right
January 17, 2018: Five-judge Bench begins hearing Aadhaar case
May 10: SC reserves verdict
Sept 18: Final verdict passed
It is clear from the above
argument how the legal research methodology has helped in formulation for
robust guidelines for policy formulation in due course of time, nevertheless
has also left scope for further improvement and proper utilization of country’s
resources without risking the privacy and security of people.
[1]https://uidai.gov.in
[2]Master Direction DPSS.CO.PD.No.1164/02.14.006/2017-18 October 11, 2017 (Updated as on December 29, 2017)
[3]https://www.ndtv.com/topic/aadhaar-data-leak
[4]https://indianexpress.com/
Legal Provisions relating Government policies
There are various agencies which formulate Government policies in India for example:
- Article 39A of the Constitution of India provides for free legal aid to the poorand weaker sections of the society and ensures justice for all. Articles 14 and22(1) of the Constitution also make it obligatory for the State to ensureequality before law and a legal system which promotes justice on the basis ofequal opportunity to all. In the year 1987, the Legal Services Authorities Actwas enacted by the Parliament which came into force on 9th November, 1995to establish a nationwide uniform network for providing free and competentlegal services to the weaker sections of the society on the basis of equalopportunity. The National Legal Services Authority (NALSA) has beenconstituted under the Legal Services Authorities Act, 1987 to monitor andevaluate implementation of legal aid program and to lay down policiesand principles for making legal services available under the Act.
- NITI Aayog is the premier policy ‘Think Tank’ of the Government ofIndia, providing both directional and policy inputs. While designing strategicand long-term policies and program for the Government of India, NITIAayog also provides relevant technical advice to the Centre and States.The centre-to-state one-way flow of policy, that was the hallmark of thePlanning Commission era, is now sought to be replaced by a genuine andcontinuing partnership of states.In a paradigmatic shift from the command and control approach of thepast, NITI Aayog accommodates diverse points of view in a collaborative,rather than confrontationist, setting. In the spirit of federalism, NITI’s ownpolicy thinking too is shaped by a ‘bottom-up’ approach rather than a ‘top-down’ model.
- By means of various Act varying from ministry to ministry etc.
Research Findings
The Legal research that was done to identify the lacunas in the referred case study can be summarized as below:
It was perceived that the Aadhaar details can be duplicated but – Justice A.K. Sikri said there is no possibility of duplicating Aadhaar due to the biometrics and added that it collects only minimum demographic and biometric details. He also said Aadhaar is “unique in an un-paralleled way.”
The Bench struck down section 57 of the Aadhaar Act[1], which allows private entities to use Aadhaar for verification purposes.
Section 33(2) that allows UIDAI to share data with specially authorized officers in the interest of national security- was also struck down.
Three of five judges were of the view that Aadhaar is valid. “Aadhaar gives dignity to the marginalized. Dignity to the marginalized outweighs privacy,” Justice Sikri’s judgment read.
Aadhaar requirement by CBSE, NEET, and UGC has been struck down, but Aadhaar-PAN linkage has been upheld.
Seeding Aadhaar with mobile phone numbers and bank accounts is not needed. Schools too, cannot insist on Aadhaar for admission of students.
Justice D.Y. Chandrachud, in his judgment, said that passing the Aadhaar Act as a Money Bill was a fraud on the Constitution. In this, he dissented from the majority opinion.
He also held section 7 of the Act, which makes Aadhaar mandatory for state subsidies, as unconstitutional.
Data collected for authentication purposes can be held for only six months. The Aadhaar Act had said that data can be held for five years.
Justice Chandrachud ordered service providers to delete any information collected by them after linking Aadhaar with SIMs.
Justice Ashok held that beneficiaries cannot be denied services or subsidies in the name of Aadhaar, and that the passage of the Act as a Money Bill can be subjected to judicial review.
It is quite
clear that this improvements can only got identified and corrected because of
the legal research that was done in this case. Now better policies can be
formed in relation with the facilities where Aadhaar is used as a pedestal for
policy making.
[1]THE AADHAAR (TARGETED DELIVERY OF FINANCIAL AND OTHER SUBSIDIES, BENEFITS AND SERVICES) ACT, 2016
Conclusion
Government policies can only be revised and made actually beneficial by stipulating the legal research methodology; it is the most efficient method for critical evaluation of any policy and can in long run fulfill the actual objectivesof formulation of such policy
Suggestion
Mandatory review of each government policy after a period of two years should be promoted by each government departments with the help of legal experts.