1. Aadhaar Constitutionally Valid

Background

• Aadhaar sought to mandatory requirement of demographic and biometric data of an individual which was argued to be against the fundamental right to privacy.

• Aadhaar Act, 2016 was passed as Money Bill to give statutory backup to the Aadhaar and UIDAI. Its passage as Money Bill too was contested.

• Till now no exclusive Data Privacy Law exist in India giving rise to the concerns of State surveillance and misuse of personal data by the commercial entities.

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1.1. News Hightlight of the Verdict

• Constitutionality of Aadhaar: Aadhaar scheme, which is backed by the Aadhaar Act, passes the triple test laid down in the Puttaswamy (Privacy) judgment to determine the reasonableness of the invasion of privacy (under Art 21) i.e.

• Existence of a law - backed by the statute i.e. the Aadhaar Act, 2016

• A legitimate state interest – ensuring social benefit schemes to reach the deserving and poor

• Test of proportionality - balances benefits of Aadhaar and the potential threat it carries to the fundamental right to privacy.

• No fear of Surveillance state: Provisions of the Aadhaar Act “do not tend to create a surveillance state”.

• Aadhaar collects minimal biometric data in the form of iris and fingerprints, and the Unique Identification Authority of India (UIDAI) — which oversees the Aadhaar enrolment exercise — does not collect purpose, location or details of the transaction.

• To ensure non tracking, the Court ordered that Authentication logs should be deleted after six months, instead of the five years required under the existing Regulation 27(1) of the Authentication Regulations.

• Security of the biometric data: UIDAI has mandated only registered devices to conduct biometric-based authentication transactions.

• There is an encrypted, unidirectional relationship between the host application and the UIDAI. This rules out any possibility of the use of stored biometric, or the replay of biometrics captured from another source.

• Further, as per the regulations, authentication agencies are not allowed to store the biometrics captured.

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Aadhaar: where's it required and where's it not

• Welfare schemes (PDS, LPG, MGNREGA etc.)

• I-T returns 

• Linking to PAN card 

• Banks accounts

• SIM cards

• Private companies

• School admissions

• NEET, UGC, CBSE for Aadhaar authentication.

• Linking of Aadhaar with Financial transactions: The 2017 amendment to Rule 9 of the Prevention of Money Laundering Act (Maintenance of Records) Rules, 2005 which made linking of bank accounts and all other financial instruments such as mutual funds, credit cards, insurance policies, etc. with Aadhaar mandatory, is declared unconstitutional. Because the amendment did not stand the proportionality test in the triple test, thus violating the right to privacy of a person which extends to banking details.

• Aadhaar Act as Money Bill: Section 7 being the main provision of the Act, the Supreme Court has upheld the validity of the Aadhaar Act being passed as a Money Bill. Section 7 of the Aadhaar Act, demands for Aadhaar based authentication to receive a subsidy, benefit or service etc. It is very clearly declared in this provision that the expenditure incurred in respect of such a subsidy, benefit or service would be from the Consolidated Fund of India.

• On a similar issue, the court has upheld the validity of Section 59 that also validates all Aadhaar enrolment done prior to the enactment of the Aadhaar Act, 2016. The court has said that since enrolment was voluntary in nature, those who specifically refuse to give consent would be allowed to exit the Aadhaar scheme.

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1.2. Impact of the Judgement

• Striking down of Regulation 27(1) and reducing storage period of authentication data from five years to six months will ensure personal data is not misused. Amending Regulation 26 and making metabase relating to a transaction impermissible will prevent fake profiling of an Aadhaar holder.

• Striking down of Section 47 means citizens can file a complaint in case of data theft, which earlier could be done by the government (i.e. UIDAI) alone.

• Section 33 of the Aadhaar Act refers to disclosure of information in certain cases

• Section 33(1) allows disclosure of information, including identity and authentication records, if ordered by a court not inferior to that of District Judge.

• Section 33(2) allows identity and authentication data to be disclosed in the interest of national security on direction of an officer not below the rank of Joint Secretary to the Government of India.

• Section 47 of the Aadhaar Act refers to cognizance of offences. Under this section, no court is allowed to take cognizance of any offence punishable under this Act, except on a complaint made by the authority of officer or person authorised by it.

• That portion of Section 57 of the Aadhaar Act which enables body corporate and individual to seek authentication is held to be unconstitutional. This makes it clear that Aadhaar may only be used by the government, and not by private parties.

• The ruling clears the ambiguity over several aspects of Aadhaar and unleashes its potential for good governance and effective distribution of social welfare services.

• The constitution bench strikes down the National security exception (Section 33(2)) under the Aadhaar Act while giving citizens the opportunity of being heard before disclosure of information under section 33(1) of the Aadhaar Act. This will indirectly ensure greater privacy of individual’s Aadhaar data while restricting the government accessibility to it.

• Aadhaar’s role in education and admissions is also restricted now. It upheld the Fundamental Right to Education (Art 21A) of children (6-14 yrs. age) and observed that admission is neither a service nor subsidy.

• The court has struck a delicate balance between the social welfare imperative and the citizen’s fundamental right to privacy.

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1.3. Challenges that still remain

• For the Fintech companies, where fraud and impersonation is a high risk, Aadhaar was a substantial support. It allows online authentication of customers leading to quick issuance of financial services and improves the service aspect. Verdict makes it like removing an enabler instead of ensuring protection of privacy of data.

• Impact of mandating Aadhaar on the poor: Rather than enabling easier access, it may end up harming them by denying them their rights due to technical authentication problems.

• Privacy: We need a strong data protection law that prevents the government and private parties from non-consensually using Aadhaar—the Justice Srikrishna Committee recommendations provide a good starting point for that.

• The issue of the right to be forgotten, in case of Aadhaar data that have been collected, remains a grey area. The judgment does not clearly state that entities such as banks and mobile companies will have to delete the collected information.

• Aadhaar as a single identifier: If the Aadhaar number is ‘seeded’ into every database (train travel, air travel, bank account, mobile phone, employment history, health and so on.), it integrates these data silos. Aadhaar becomes the bridge across the hitherto disconnected data silos. People in government will be able to ‘profile’ the citizens, by pulling in information from various databases using that single identifier. Just the possibility of such profiling is likely to lead to self-censorship and, is likely to stifle dissent.

• Minority Judgment: Contrary to the majority judges, Justice Chandrachud rejected all the arguments and held Aadhaar Act as unconstitutional on the basis of invasion of privacy, all-pervasive state control, and exclusion. Moreover, he held that passing the Aadhaar Act as a money bill was a “fraud on the constitution.”

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2. Reservation In Promotions

Background

• Nine judge bench in Indra Sawhney case(1992)

• the Supreme Court upheld the Mandal Commission’s 27 percent quota for backward classes with a condition that combined reservation should not exceed 50%.

• It also struck down the government notification reserving 10% government jobs for economically backward classes among the higher castes.

• Creamy layer must be eliminated from the Backward Classes.

• There should be no reservation in the promotions.

• As the Indra Sawhney judgement disallowed reservation in promotions and consequential seniority, Parliament enacted three constitutional amendments in 1995, 2000 and 2002, the most contested one being Article 16 (4A).

• Article 16 (4A): Allows for reservation in matters of promotion, with consequential seniority, in favour of the Scheduled Castes and the Scheduled Tribes which are not adequately represented .

• Five judge bench in Nagaraj Case(2006)

• The court upheld the constitutional validity of the amendments

• But it also said that for providing quota in promotions the states must provide:

• quantifiable data on the backwardness of Scheduled Castes (SC) and Scheduled Tribes (ST)

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2.1. More about the recent judgement

• The Centre had alleged that the verdict in the M Nagraj case put unnecessary conditions in granting quota benefits.

• The bench did not make changes about the two other conditions given in the 2006 Nagaraj verdict which dealt with adequacy of representation and administrative efficiency.

• The court said that the requirement to collect quantifiable data showing backwardness of SCs and STs was "contrary" to the nine-judge bench judgement in the Indra Sawhney verdict of 1992.

• The apex court also turned down the Centre's plea that overall population of SC/ST be considered for granting quota for them.

• The court also asked the government to examine the possibility of introducing creamy layer for Scheduled Castes (SCs) and Scheduled Tribes (STs) says that if some sections bag all the coveted jobs ,it will leave the rest of the class as backward as they always were. This observation has led to criticism of the judgement in some quarters.

• However, it declined the demand to refer the case to a 7 judge bench to reconsider its 2006 Nagaraj judgement.

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2.2. Arguments against Reservation in promotion

• Hurts efficiency of administration: This aspect becomes important in highly technical domains such as Nuclear research, space program, etc.

• Cornering of Benefits: Critics point out that like the reservation aspect, even the promotions will be cornered by a select few castes and tribes.

• Reservation is suffice: There should not be quota in promotions for higher services as the of backwardness of SC and ST employees is removed once they join government service.

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2.3. Arguments in favour of Reservation in promotion

False notion of “efficiency”

• The ‘loss in efficiency’ argument is largely the result of an extremely conservative understanding of ‘merit’.

• The basis for that argument has never been articulated in any of the Supreme Court’s judgments and has always been stated as a self-evident truth and not grounded in any sort of empirical study.

• No person can be promoted unless they obtain a good rating in their annual confidential report which is currently the measure of efficiency.

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Lack of representation in higher levels:

• The Scheduled Castes and Scheduled Tribes lack representation mainly at the Group A level which do not have direct recruitment provisions. Promotions are the only way members of these communities can make it to this level.

• There were only 4 SC/ST officers at the secretary rank in the government in 2017.

• Large number of Vacant posts: There was no definition of the expression “backward” of which “quantifiable data” was to be collected. As a result, all promotions made post-Nagraj were struck down on the ground that there was no quantifiable data.

• Historical disadvantage: Given that the marker of identity of Scheduled Castes is the historic disadvantage of the untouchable, the question of proving backwardness by quantifiable data for promotion does not arise.

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Way forward

• With regards to the Supreme court observation about introduction of creamy layer with respect to SC/ST reservations, talks should be conducted with all stakeholders before moving ahead on such a contentious issue.

• As far as promotions are concerned, as of now there is ambiguity and vagueness in promotion process and hence there is a need for a comprehensive law to be enacted in line with the supreme court judgement.

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3. Criminalisation Of Politics

3.1. Legal and Judicial Provisions

• Article 102(1) and 191(1) disqualifies an MP and an MLA respectively on certain grounds

• Section 8 of the Representation of People Act, 1951, bans convicted politicians. But those facing trial, no matter how serious the charges, are free to contest elections.

• The Supreme Court in Lily Thomas case (2013) held that chargesheeted MPs and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.

• In March 2014 SC judgment, court directed all subordinate courts to give their verdict on cases involving legislators within a year, or give reasons for not doing so to the chief justice of the high court. Progress in this matter has not been reviewed.

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Background

• According to the prevalent law, the lawmakers and candidates are barred under the Representation of Peoples Act (RPA) from contesting elections only after their conviction in a criminal case.

• The current verdict was pronounced on a question whether lawmakers facing criminal trial can be disqualified from contesting elections at the stage of framing of charges against them.

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3.2. Supreme Court Observations/Recommendations

• Problem of criminalisation of politics is “not incurable” but requires urgent attention before it becomes “fatal” to the democracy.

• The Apex court recommended that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream.

• The Court directed disclosure of criminal cases pending against the candidate by himself/herself through Election Commission of India and his/her political party.

• Moreover the criminal antecedent of candidates must be widely publicized through different media including the websites of concerned political parties.

• Court also made observations on political parties. The SC said that it is the political parties that form the government, man the parliament and run the governance of the country. It is therefore, necessary to introduce internal democracy, financial transparency and accountability in the working of the political parties.

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3.3. Reasons for Criminalisation of Politics

Important Data (ADR) - (2014 Lok Sabha elections)

• Out of the 542 winners analysed, 185(34%) winners have declared criminal cases against themselves.

• 112 (21%) winners have declared serious criminal cases including cases related to murder, attempt to murder, communal disharmony, kidnapping, crimes against women etc.

• The chances of winning for a candidate with criminal cases in the elections are 13% whereas for a candidate with a clean record it is 5%.

• Vote Bank: As the SC has observed that we as a voter are not yet organically evolved, therefore, majority of the voters are maneuverable, purchasable. Expenditure for vote buying and other illegitimate purposes through criminals leads to nexus between politicians and criminals.

• Corruption: In every election all parties without exception put up candidates with a criminal background. The general trend is that these candidates are elected to office. Institutionalization of corruption and failure to deal with corruption has bred contempt for the law. This, combined with the criminalization of politics, flourishes the corruption. The past three Lok Sabhas have seen an increasing number of legislators with criminal background or pending cases against them — 124 in 2004, 162 in 2009 and 182 in 2014.

• Loop Holes in The Functioning of Election Commission: For the past several general elections there has existed a gulf between the Election Commission and the voter. Common people hardly come to know the rules made by the commission. Model Code of Conduct is openly flouted by candidates without any stringent repercussions.

• Denial of Justice and Rule of Law: Toothless laws against convicted criminals standing for elections further encourage this process. In December 2017, the Government announced to set up 12 fast-track courts across the country to try criminal cases pending against sitting MPs and MLAs. 40 percent of pending cases have been transferred to special courts — of which judgments have been pronounced in just 136 cases (11%).

• Though the Representation of the People Act (RPA) disqualifies a sitting legislator or a candidate on certain grounds, there is nothing regulating the appointments to offices within the party. A politician may be disqualified from being a legislator, but he may continue to hold high positions within his party, thus also continuing to play an important public role which he/she has been deemed unfit for by the law. Convicted politicians may continue to influence law-making by controlling the party and fielding proxy candidates.

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3.4. Various committee observation on Criminalization of Politics

• The Santhanam Committee Report 1963

• It referred to political corruption as more dangerous than corruption of officials and recommended for Vigilance Commission both at the Centre and in the States.

• Vohra Committee Report (1993)

• It studied the problem of the criminalization of politics and of the nexus among criminals, politicians and bureaucrats in India. However, even after the submission of report 25 years ago, the report has not been made public by the government.

• Padmanabhaiah Committee on Police Reforms

• It found that Corruption is the root cause of both politicization and criminalization of the police.

• Criminalization of police cannot be de-linked from criminalization of politics. It is the criminalization of politics, which has produced and promoted a culture of impunity that allows the wrong type of policeman to get away with his sins of commission and omission.legislature.

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3.5. Impact of Criminalization

• The law-breakers get elected as law-makers- The people who are being tried for various offences are given the opportunity to make laws for the whole country, which undermines the sanctity of the Parliament.

• Loss of public faith in Judicial machinery- It is apparent that those with political influence take advantage of their power by delaying hearings, obtaining repeated adjournments and filing innumerable interlocutory petitions to stall any meaningful progress. This questions the credibility of the judiciary.

• Tainted Democracy: Where the rule of law is weakly enforced and social divisions are rampant, a candidate’s criminal reputation could be perceived as an asset. This brings in the culture of muscle and money power in the politics.

• Self-perpetuating: Since the parties focus on winnability of the candidate (also hampering the inner party democracy), they tend to include more and more influential elements. Thus, criminalization of politics perpetuates itself and deteriorates the overall electoral culture.

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Way Forward

• There is a need to curb the high cost of campaigning to provide a level playing field for anyone who wants to contest elections.

• As recommended by the Law Commission of India’s report on Electoral Disqualifications, by effecting disqualification of tainted politicians at the stage of framing of charges, with adequate safeguards, the spread of criminalisation of politics may be curbed.

• Filing of a false affidavit should qualify as a ‘corrupt practice’ under the Act. Conviction on the charge of filing of a false affidavit must be grounds for disqualification as recommended by the Law Commission.

• The Election Commission must take adequate measures to break the nexus between the criminals and the politicians.

• There are provisions in the Representation of the people Act, 1951 to punish candidates and parties for misuse of religion and other unlawful elements in elections, unfortunately these provisions are not effectively enforced because of lack of political will and prolonged legal battles and litigation.

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4. Dissolution Of Medical Council Of India

4.1. More about news

• The ordinance amends the Indian Medical Council Act, 1956 and provides for the supersession of the MCI for 1 year till National Medical Commission Bill is cleared in the Parliament.

• In the interim period, the central government will constitute a Board of Governors, which will exercise the powers of the MCI.

• National Medical Commission Bill, 2017

• The Bill sets up the National Medical Commission (NMC) which shall replace the MCI (Medical Council of India) as top regulator of medical education in India. It will:

• o have 25 members.

• o frame policies for regulating medical institutions and medical professionals.

• o recognize medical qualifications.

• o determine fees for some seats in private medical institutions and deemed universities.

• A Medical Advisory Council (MAC) will be set up to provide a platform to states/union territories to express their views and concerns.

• Four autonomous Boards have been set up under the supervision of the NMC.

• o Under-Graduate Medical Education Board (UGMEB)

• o Post-Graduate Medical Education Board (PGMEB)

• o Medical Assessment and Rating Board (MARB)

• o Ethics and Medical Registration

• A National Eligibility-cum-Entrance Test (NEET) will be conducted for admission to under-graduate medical education in all medical institutions regulated by the Bill.

• State Medical Councils will be set up which will have a role similar to the NMC, at the state level.

• There will be a National Licentiate Examination for doctors to obtain a licence to practice after graduation

• The Bill allows practitioners of Ayurveda and other traditional Indian systems of medicine the licence to prescribe allopathic drugs after they have passed a ‘bridge course’.

• The Board of Governors (BOG) has 7 members with one of these members as the Chairperson of the Board (NITI Aayog Member Dr. V. K. Paul).

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Background

• Various committees such as Ranjit Roy Chaudhury committee (2015), Lodha Panel (2016) and Arvind Panagariya have previously suggested scrapping of the MCI.

• An oversight committee to oversee the MCI, set up on the direction of the Supreme Court recently resigned citing instances of “non-compliance of their instructions by MCI.”

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4.2. Arguments for scrapping MCI

• Allegations of corruption: There have been multiple allegations of bribery against MCI office bearers. In fact the MCI president himself was arrested for allegedly accepting a bribe.

• Opaque functioning: The opaque accreditation process to medical colleges is one of the major arguments against MCI.

• Separation of functions: The MCI has been criticised for concentration and centralisation of all regulatory functions in one single body as it regulates both medical education as well as medical practice.

• Conflict of Interest:

• o The MCI members are elected from the same medical fraternity that they have to control. So there is a clear conflict of interest and the MCI has become an exclusive organisation “by the doctors, for the doctors and of the doctors”.

• o It is heavily influenced by corporate hospitals and meanwhile also provides them with accreditation and assesses their quality.

• Lack of emphasis on medical ethics: The present focus of MCI is only on licensing of medical colleges and no emphasis is given to the enforcement of medical ethics in education.

• Rising cost of Medical education: It has failed to stop the sale of medical seats in private colleges for a high capitation fees.

• Lack of sufficient manpower:

• o It failed to produce sufficient number of doctors. India has 1 doctor for every 1674 people against WHO norm of 1 for every 1000 people.

• o Shortage of teachers in medical colleges also remains a major challenge.

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4.3. Issues with implementation of the new structure

Autonomy:

• Critics argue that the autonomy of medical education will entirely go into the hands of the government with MCI getting scrapped.

• Having nominated members may lead to the chief qualification being proximity to the government of the day.

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Issues with the NMC bill:

• Fee Capping Dilemma: The NMC will determine fees for up to 40% of the seats in private medical colleges and deemed universities. There have been various arguments on fee capping by experts:

• On the other hand, some suggest that fee capping would discourage entry of private colleges. o Need of diverse stakeholders: Two-thirds of the members in the NMC are medical practitioners. Expert committees have recommended that the regulator should consist of more diverse stakeholders in order to reduce the influence of medical practitioners in regulating medical education and practice.

• Against federal setup: Previously, all the State governments had representation in MCI while in the NMC bill, only few States in rotation will have representation.

• Appellate authority: In cases of professional or ethical misconduct by medical practitioners, the practitioners can appeal against decision of the NMC to the central government. It is unclear why the central government, and not a judicial body, is the appellate authority.

• Renewal of license: There is no requirement for periodic renewal of the licence to practice. Some countries require periodic testing to ensure that practitioners remain up to date, fit to practice, and give good care to patients.

• Issues with the bridge course: While some emphasise the need for greater integration between traditional and modern schools of medicine, others consider this step harmful for the independent development of AYUSH.

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Way Forward

• The government has shown a conciliatory approach by accepting some amendments to the Bill as suggested by the Parliamentary Standing Committee:

• Removing the National Licentiate Examination provision: Final MBBS Examination to be held as a common exam across the country and would serve as an exit test called the National Exit Test (NEXT).

• Removing the provision of Bridge course for AYUSH practitioners.

• Fee regulation for 50% seats (bill had 40%) in private medical institutions and deemed universities.

• Hence, the government must now move urgently on passing the NMC Bill in the parliament.

• The larger goal of a revamp should be to improve both medical practise and medical education in the country.