My previous blog post looked into some aspects of the UIDAI Project. With my appetite for curiosity not
fully satiated, I dug deeper into the antecedents of the project. A lot of
unanswered questions is what my quest for the truth yielded. The details follow.
Residents of India
It can be intuitively discerned that the term “residents of India” includes the following
classes of persons:
1) Indian citizens residing in India:
In accordance with express powers vested under Article 11 of the
Constitution, the Indian Parliament enacted the Citizenship Act, 1955. This Act
pertains to the acquisition and determination of Indian citizenship.
Further, in exercise of the powers conferred under S. 18 (1) and (3) of
the Citizenship Act, 1955, the Central Government has made The Citizenship
(Registration of Citizens and Issue of National Identity Cards) Rules, 2003.
2) Foreign nationals residing in India:
The Foreigners Act, 1946 and Registration of Foreigners Act, 1939
provide correspondingly for the exercise of certain powers in respect of and
the registration of foreigners entering, being present in and departing from
India.
Both Acts provide for penalties against any person who contravenes, or
attempts to contravene or fails to comply with, any provision of any rule made
under the Acts. It is a also relevant to note that the Supreme Court too has asserted that the Government has unrestricted
right to expel a foreigner [Hans Muller of Nurenburg v. Superintendent Presidency Jail, Calcutta (AIR 1955 SC 367); Sarbananda Sonowal v. Union of India (AIR 2005 SC 2920)].
In other words, there is no provision in the
Constitution (or any statute under it) fettering this discretion of the
Government.
Compilation of Citizenship and Residency Data
In
accordance with Articles 11 and 246 (List 1 of the Seventh Schedule) of
Constitution; and under the provisions of the Citizenship Act, 1955 and the
Citizenship (Registration of Citizens and Issue of National Identity Cards)
Rules, 2003, the Parliament has entrusted the statutory “Office of Registrar
General & Census Commissioner, India, Ministry of Home Affairs, Government
of India”, appointed under the Census Act,
1949, with the additional functions of:
A) Preparing
and maintaining the National Population Register (NPR), which is a comprehensive identity database of all “usual” residents of the country.
The
creation of the National Population Register (NPR) is the first step in the
preparation of the National Register of Indian Citizens (NRIC). Out of the universal data-set of residents, the subset
of citizens would be derived after due verification of the citizenship status.
Therefore, it is compulsory for all usual residents to register under the NPR.
B) Registering every citizen of India and issuing National Identity Card and National Identity Number of all citizens; and,
C) Maintaining a National Register of Indian Citizens.
On
and from the date of commencement of the Citizenship (Amendment) Act, 2003, the
Registrar General, India, appointed under sub-section (1) of Section 3 of the
Registration of Births and Deaths Act, 1969 shall act as the National
Registration Authority and he shall function as the Registrar General of Citizen Registration.
The objectives of creating this identity repository are two-fold:
- (i) Helps in better utilization and implementation of the benefits and services under govt schemes;
- (ii) Improving national planning and security.
Billion-Dollar Questions: First Set
When there is already a statutory body/agency/entity, viz., National
Registration Authority, lawfully operating with parliamentary sanction with
effect from 7th January 2004 (the day The Citizenship (Amendment)
Act, 2003 came into existence), why was UIDAI created to replicate the effort of
capturing resident and citizen information, without Parliamentary sanction and
in violation of the Constitution?
What is the ulterior motive behind the project being implemented
despite being rejected by the Parliamentary Standing Committee on Finance?
Powers of Central Executive
The Central Executive is entitled to exercise executive functions with
respect to all those subjects which fall within the legislative sphere of
Parliament (Article 73).
The Constitution makes no attempt to define ‘executive power’, or to
enumerate exhaustively the functions to be exercised by the Executive, or to
lay down any test to suggest as to which activity or function would
legitimately fall within the scope of the executive power. The truth is that
the executive power of a modern state is not capable of any precise or
exhaustive definition.
The government in exercise of its executive power is charged with the duty
and the responsibility of carrying on the general administration of the state.
The scope of the executive power may be said to be residual, that is to say,
any function not assigned to Parliament or the Judiciary may be performed by
the Executive [Jayantilal Amrith Lal v. FN Rana; AIR 1964 SC 648], or
governmental functions that remain after the legislative and judicial functions
are taken away [Chandrika Jha v. State of Bihar; AIR 1984 SC 322].
The executive power of the Union of India, as is well-known, is vested
in the President [Article 53(1). The President exercises his functions either
directly or through officers subordinate to him. Further, executive power,
which runs co-extensively with the Legislative, is carried on by the Ministers
and other officials. In order to effectively discharge its duties, each
Ministry in the Government functions through various bodies and agencies,
attached offices, boards, councils, bureaus, authorities, divisions,
corporations, associations, commissions, undertakings, directorates,
departments, etc.
So long as the Executive enjoys majority support in the Legislature, it
can go on discharging its policies and no objection can be taken on the ground
that a particular policy has not been sanctioned by legislation. This, however,
is subject to limitations, e.g., the executive cannot ignore a constitutional
prohibition or provision.
Thus, the executive power is to be exercised in accordance with
the Constitution.
Independent Bodies
Thus, the Union Government enjoys the power to set up, within the
constitutional and legislative framework, any independent body, agency, entity,
authority, commission, corporation, etc. For e.g., various authorities created,
through Acts of Parliament, include The Airports Authority of India;
The National Highways Authority of India;
National Biological Authority (autonomous and statutory body under Biological Diversity Act, 2002); Steel Authority of India Limited (set up as a corporation); Sports Authority of India Limited ()
(set up as a society); Telecom Regulatory Authority of India Limited;
etc.
Often such independent and autonomous bodies, with revenue generating potential,
are established as legal entities with juridical personalities (a.k.a.
artificial person), such as bodies of persons, corporations, etc., that are
recognised by law as the subjects of rights and duties.
Such juristic entities have perpetual succession and a common
seal with powers: (a) to acquire, hold and dispose of property, both movable
and immovable; and (b) to contract, and to sue or be sued.
UIDAI Status
The UIDAI though, which is envisaged to earn revenues through identity verification, is
set up as an attached office to the Planning Commission under notification A-43011/02/2009-Admn.I
dated 28th Jan. 2009.
Of
course, the Planning Commission itself, set up through a resolution of Cabinet Secretariat, Government of India, is an advisory body, which only makes
recommendations to the Cabinet.
The UIDAI on the contrary is a operational outfit that executives some function.
Billion-Dollar Questions: Second Set
Why did the UPA-II Government set up the UIDAI as a body / authority with no juridical
personality? Was it to ensure that privacy laws of the land could be skirted
with impunity, and yet no liability?
Why was Parliament bypassed and a scheme
implemented unlawfully, thereby in contravention of the Constitution?
Or, was
it simply to confer benefits and legalise residence of illegal migrants in the
country?
Will Sri. Nandan Nilekani come clean with answers to the above
questions? Or, am I perhaps expecting too much from a man who has much to hide?
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