Aadhaar, Money Bills And The Coercive Power Of The Weak State in India

The continuous expansion of the use of the Aadhaar unique biometric ID and the extensive use of the money bill route to pass legislation that might otherwise founder in the Rajya Sabha stand as mute witnesses to the coercive power of the weak state.

A strong state uses limited and normal laws to good effect; a weak state uses subterfuge and the power of the bureaucracy to write rules and use loopholes to convert into law what is not mandated by legislation.

A weak state uses draconian laws to achieve ordinary results (whether it is to ban dowry or halt domestic violence or rape), but dilutes many existing laws in practice (eg, laws to ban cow slaughter or religious conversions) so that life goes on. Conversely, where there are no laws, the intent of the state is written into the rules, and a venal bureaucracy is used to make these laws work, often vicariously.

The implementation of Aadhaar offers us a wonderful case study. And so also the extensive use of the money bill route by the NDA government. And, of course, there is the judiciary doing its own bit to hijack the constitution to serve its narrow ends. It ends up making its own laws, which are often unconstitutional and possibly unimplementable in the context of a weak state.

Aadhaar was pushed through with no law to back it through an executive order of the Manmohan Singh government. It was only after millions of Indians were enrolled into Aadhaar that the Supreme Court even started looking into it; and even while restraining the state from making Aadhaar compulsory for the delivery of subsidies to the poor, it ended up mandating its own use of Aadhaar (for linking this unique ID to telecom subscriber data, possibly imposing a cost of nearly Rs 1,000 crore on a tottering telecom industry).

The Narendra Modi government, in order to work around a possible Rajya Sabha veto, passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill last year. While this is a borderline case where the use of the money bill route can be justified since payments are made out of the contingency fund of India and there is a need to weed out fake and duplicate beneficiaries, how on earth can the extension of Aadhaar to the filing of income-tax returns be justified as a money bill?

If all’s fair in love and war, it is clear that the government feels justified in using the money bill tactic as the Rajya Sabha is not doing its job: it can pass, alter or reject bills passed by the Lok Sabha, but it should not be endlessly sitting on bills so that no joint session of parliament can be called to vote on important bills. Clearly, the powers of the Rajya Sabha to derail bills through delays have to be curbed. If this is not done, governments will use other routes to get bills passed illegitimately. The weak state finds a way to pass laws by subverting the spirit of existing laws. If the judiciary wants to limit the use of the money bill route, it will equally have to limit the Rajya Sabha’s power to sit on bills without acting on them. But in both cases, the judiciary cannot intervene without impinging on the powers of other constitutional authorities – the Lok Sabha speaker and the people who run the Rajya Sabha.

In the ongoing Lok Sabha session, the government has smuggled into the Finance Bill changes to political funding rules, making Aadhaar mandatory for filing returns, and reducing the number of appellate tribunals. One cannot be sure if the courts will ultimately start interfering with the powers of the Speaker to decide what is a money bill in view of its extensive misuse.

But then the weak state is not just about the executive and the legislature. It is also about the judiciary. The Supreme Court rejected the National Judicial Appointments Commission Law, passed nearly unanimously by both houses of parliament and more than half the state legislatures, in the name of judicial independence. The fact that no country in the world allows judges to appoint themselves has been lost on the higher judiciary. In another case, the judiciary imposed a cess on diesel vehicles, when the power to tax is with legislatures.

In a weak state, the judiciary is complicit in undermining the rule of law and the intent of the Constitution by arrogating powers to itself. It can do so by using the power conferred on it to review any law on its constitutional validity. It is always possible to find someone to file a public interest litigation to enable the judiciary to pronounce on almost anything, whether it is how to handle droughts or how to run the Board of Control for Cricket in India. In effect, the judiciary can write its own laws if it does not exercise self-discipline.

In a weak state, the various arms of democracy – the executive, the legislature, the judiciary – routinely wade into areas they are not meant to administer. There is judicial, executive and legislative over-reach, which means the law is what powerful deem it to be.

A strong state will respect the separation of powers and focus on implementing ordinary laws efficiently, and draconian laws will be the exception, not the rule.

There can be no rule of law in a weak state. India needs to have a strong state, a state willing to follow the laws it makes. A strong state sets limits on its own powers.