Tag Archives: Aadhar

States challenging Central Law embellishes Federalism

By Somasekhar Sundaresan

A Bench of the Supreme Court is reported to have criticized the Government of West Bengal and its advocate for filing a writ petition challenging the mandatory introduction of Aadhaar.

According to news reports, a judge is reported to have asked the lawyer how a state can challenge law made by Parliament. Taking the cue, it is learnt that West Bengal Chief Minister Mamata Banerjee’s lawyer agreed to get the individual who is the Chief Minister to be the petitioner instead of the state government.

According to this report in Bar and Bench, the judges are reported to have asked:

How can a State challenge a law made by the Parliament? You are challenging the vires of the Act.”

To protect the litigation in substance, finding fault with form, the Court is reported to have suggested,

“Let an individual come, let Mamata Banerjee come. But how can the State come? Tomorrow, what if the Centre challenges a law made by a State?”

This exchange may have been handled expeditiously had petitioner not displeased the Court by countering its observations. The move would have also suited the West Bengal Chief Minister, as it would give her direct political mileage. However, it begs the question if there is indeed any basis for a perception of illegality or impropriety in a state government challenging a law made by Parliament.

Interestingly, the answer, subject to some nuance, is clearly in the negative. There is no bar on a state government challenging law made by Parliament in the Supreme Court. On the contrary, under Article 131, the Supreme Court has exclusive original jurisdiction, to the exclusion of all other courts, over disputes amongst Central government and state governments, as indeed between state governments, where questions determinative of the existence or the extent of legal rights are involved.

In fact, the notion that challenges to law made by Parliament should be circumscribed, came up during the Emergency when Article 131A was inserted to provide that only the Supreme Court could deal with challenges to such legislation. Right after the Emergency, this provision was repealed. That temporary limitation was one of the forum, and not of the eligibility of the party who could litigate.

Then there is the age-old issue of whether a writ petition under Article 32can be pursued by a non-individual, but that does not seem to have been the basis of the change of form of the challenge to Aadhaar by the West Bengal government. The discomfiture appears to have been the seeming impropriety of a state government taking on law made by Parliament. That concern, even from the standpoint of propriety, appears misplaced.

Besides, if public interest litigation filed by individuals can be considered to be “appropriate proceedings” under Article 32, it would stand to reason that a state government (which would be held to a greater standard of propriety in its conduct) too should be able to move court. Of course, a petition without merit can be thrown by the court as it would throw out any petition that is without merit. A state government would be taking serious political risk if the apex court were to stricture it for indulging in frivolous litigation.

In fact, the recent history of the United States is rich with examples of states challenging law made by the Centre. Early this year, US President Donald Trump issued an executive order banning entry of persons from specified Muslim nations into the United States. A total of fifteen state governments – California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Rhode Island, Vermont, Virginia and Washington – chimed in with the state government of Hawaii, to challenge it.

Even the equivalent of a “Union Territory” – the District of Columbia (Washington DC, which is like our National Capital Region) – challenged the travel ban. By a sleight of hand, the US President’s team replaced the travel ban under challenge with a new ban, adding a couple of non-Muslim nations to the list of banned sources of travellers and the fight has been reset to the first round again.  Hawaii is leading the fight again, and there is no reason why the other states would not join hands.

A state initiating litigation against the Centre in a court of law, over a constitutional issue, would embellish the robustness of the health of a federal democracy. Likewise, if for example, a State Legislature were to make law that is in the domain of Parliament, it would be a matter of robust federalism that the Central government challenges such law. The Supreme Court would be the right forum for resolving such disputes.

Indeed, there are various types of inappropriate use of judicial time for inter-governmental disputes and propriety would demand that those are not indulged in. For example, the income-tax department often files writ petitions challenging decisions of the Settlement Commission; the Enforcement Directorate is known to have challenged the Reserve Bank of India’s decision to compound offences under exchange controls; a former Union Finance Minister announced to the media that he had advised the capital market regulator and the insurance regulator to approach a court of law to litigate and resolve a turf war over unit-linked insurance schemes that were accused of also being mutual funds.

Last year, the state governments of Bihar and Jharkhand were rebuked by the Supreme Court for a dispute going back to 2004, over sharing of the guest house and state government office between the two states after the separation of Jharkhand from Bihar.

But a challenge to legislation made by Parliament by a state government, or for that matter, a challenge by the Central government to law made by a State Legislature hardly appears inappropriate.

The author is an advocate practising as an independent counsel.

This column was published in the Bar & Bench on November 9, 2017

No aadhar to impose Aadhar for kids meals

Corruption in the scheme may have nothing to do with fake children being shown to siphon out money

A new storm is brewing. After demonetisation, it is the backdoor enforcement of identification for children to qualify for midday meals. The move is threatening to take the shape of the next direct conflict between academic policy implementation and the practical problem of unintended consequences on the ground. Added to the mix is the evident violation of the Supreme Court’s orders that cannot be made a mandatory requirement for government welfare schemes.

While midday meals are the most emotive of the schemes to which the unique identification under has been made mandatory, this paper has reported that 14 similar notifications have been made under 11 schemes, including schemes involving access to primary and secondary education.  Interestingly, the news was broken not in the “mainstream” print media but by online paper Scroll.in.

Effective July 1, 2017, a without the ID would not be fed the given free in school.  “Individuals desirous of availing the benefits under the (midday meal) scheme offered at the schools are required to furnish proof of possession of number or undergo authentication,” reads the gazette notification. “An individual desirous of availing the benefit under the scheme offered at the schools, who does not possess an number or has not yet enrolled for shall have to apply for enrolment by 30th June, 2017.”

This is a disastrous approach.  Indeed, there will be arguments for it.  Some of the usual ones are about leakage of government welfare — small doles to the poor somehow make bigger news that large-scale subsidies and tax concessions that get routinely abused.  According to reports, at least 100.3 million elementary students from the first to eighth standards, studying in 1.15 million schools benefit from the scheme. The scheme also provides part-time employment to an estimated 2.53 million workers for implementation of the scheme.

Midday meals are provided to school children under the food security law, substantially using central government funds granted to state governments and then down to local municipal governments that run schools. The costs are shared broadly in a 60:40 ratio in most states and in the north-eastern states and in Himachal Pradesh, and in a 90:10 ratio. Central government funding in the last Budget for this is a mere Rs 10,000 crore, with a marginal increase of Rs 300 crore since the last Budget. The idea of a is to ensure basic nutrition to schoolchildren since it is under-nourishment that essentially leads to lack of absorption of education in formative years.

There is no credible and rigorous evidence of any material leakage under the scheme. Every scheme, public or private, will be gamed to see if benefits can be wrongly extracted. If the response to any leakage, real or potential, material or immaterial, is to indulge in carpet-bombing by threatening the very scheme, we will soon have another demonetisation-type problem on our hands. Crooks will find a way to get around the solution and many genuine and sincere beneficiaries could be put to avoidable hardship — akin to burning down a house to kill a few insects that have entered it. Also, akin to US President Donald Trump’s ban on entries from seven Islamic nations, which would have kept even US nationals and residents out of the US if they happened to be outside the country when the ban was sought to be imposed.

Worse, the has clearly prohibited the mandatory usage of the for government incentives except for specific schemes that the court permitted. In short, in this case, there is already a restraining order from the judiciary on such usage of   Yet, the government has brazened it out.  The ball will now be literally in the Last heard, lawyers appearing in the challenge to such use of have been pushing for an early hearing of the privacy concerns arising out of the implementation and the court has been struggling with bench strength issues to constitute a bench to hear the matter. However, the introduction of new mandatory requirements to quote could lead to contempt proceedings, too.

Indeed, there could emerge problems with implementing the schemes. For example, as some experts point out, corruption in the scheme may have nothing to do with fake children being shown to siphon out money. In fact, the leakage would be in terms of substandard food being given, or companies that make and sell pre-packed and processed food seeking to get their products approved as substitutes for midday meals (there have already been reported attempts of the government nearly approving biscuits in place of midday meals). Insisting on can never fix such leakages and corruption. Therefore, before doing something drastic such as asking children to go hungry if they do not have an card, there has to be an empirical basis to demonstrate that the proposed solution is necessary for a clearly-perceived and real problem.  Without a problem statement being defined, enforcing a good-to-have-and-feel-good “solution” would come quite close to declaring that 85 per cent of live currency stock would cease to be legal tender.

This column was published Without Contempt in the March 9, 2017 edition of Business Standard.

http://www.business-standard.com/article/opinion/is-there-a-case-for-linking-aadhaar-with-midday-meal-117030801232_1.html