Cautious optimism: Does the Supreme Court’s Aadhaar-PAN decision hold hope for a future victory?

The court says the unique identity project must pass a stringent test under the right to privacy and human dignity. Will it?

What to make of the Supreme Court’s decision in Binoy Viswam v Union of India, popularly referred to as the Aadhaar-PAN linking case? Is it “pro” or “anti” Aadhaar?

The legal challenge to Aadhaar began in 2012 when a clutch of petitions were filed in the Supreme Court. Aadhaar is a biometric-based 12-digit unique identification number the Indian government wants to every citizen to have. Broadly, the objections were on three grounds – privacy and autonomy, exclusion and denial of benefits, and finally national security.

In August 2015, the court referred all Aadhaar cases to a constitution bench. Primarily, the bench will decide whether Aadhaar violates the right to privacy under Article 21 of the Constitution.

On the face of it, Article 21 is restrictive, explicitly guaranteeing only the rights to life and liberty. Over the decades, though, the Supreme Court has read several subsidiary rights, including to privacy, in this provision, reasoning that the right to life guarantees a person’s dignity, not merely animal existence.

In the Aadhaar case, the government has argued that the court’s decisions recognising the right to privacy under Article 21 do not adequately deal with its own conflicting judgements on the subject. In other words, the existence and extent of the right to privacy in India is not settled. It was to address this technical inconsistency that the entire batch of Aadhaar cases was sent to a Constitution bench.

As it takes time for a Constitution bench to be constituted and for it to sit and decide the matter, the judgement on Aadhaar has been delayed. The delay, while regrettable, is not unusual, but it has come to define every subsequent litigation and hearing related to Aadhaar.

Here, some questions need to be answered. Until a Constitution bench is formed, can the government force every Indian to get Aadhaar, or make it mandatory for accessing various services? The day the court referred the matter to a Constitution bench, it restricted the use of Aadhaar to a limited set of services such as cooking gas. Even for these services, Aadhaar was made voluntary. Voluntary, that is, in plain English, without the masquerade of inverted commas or legal jargon that camouflages coercion. This was so benefits are not denied to a person merely for not possessing Aadhaar. The court’s orders, however, have been defeated by legal stratagems of the government.

A year later, the Narendra Modi government brought the Aadhaar Act, 2016, and argued that it had effectively done away with the restraints placed by the apex court. Aadhaar could now be extended to all services, even made mandatory.

Soon, fresh petitions were filed in the Supreme Court challenging provisions of the Aadhaar Act and the notifications issued under it. Since many of the petitions dealt with the right to privacy, they were tagged with the previous pleas awaiting the formation of a constitution bench. While the petitioners awaited adjudication, Aadhaar expanded inexorably to encompass services such as mid-day meals and the permanent account number, or PAN.

Aadhaar is mandatory for schoolchildren to get mid-day meals from June 30. Photo credit: UIDAI
Aadhaar is mandatory for schoolchildren to get mid-day meals from June 30. Photo credit: UIDAI

Weak case

PAN is necessary for paying income tax but also for participation in India’s formal economy. Early this year, the Modi government, using the questionable instrument of the Finance Act, 2017, added Section 139AA to the Income Tax Act, 1961. Its two key sub-sections become operative from July 1, 2017. One makes it mandatory to quote Aadhaar for applying for PAN and for filing income tax returns. The other states that a person who has PAN and can get Aadhaar “shall intimate it in any manner as may be specified at a later date by the government”. Non-compliance is punished by the cancellation of PAN.

Challenges to Section 139AA came promptly. The Supreme Court offered the petitioners a choice: it could bunch this matter with the Aadhaar petitions awaiting the formation of a constitution bench or it could hear the case without considering arguments about the right to privacy. The first option would adjourn the case to an indeterminate future date while the latter would remove privacy as a ground for challenge, thereby making the case considerably weaker.

Aware that previous challenges that availed of the first option had failed to contain the Aadhaar blitzkrieg – and the court has shown no urgency to form a constitution bench – the petitioners opted to argue the Aadhaar-PAN challenge without touching upon the right to privacy.

In effect, the challenge to Section 139AA was a limited objection premised on Articles 14 and 19(1)(g) of the Constitution, alongside doctrines of statutory inconsistency and legislative competence. Without the aid of Article 21, these were subsidiary and weaker points of challenge. Moreover, the challenge was limited to Section 139AA of the Income Tax Act, not to the provisions Aadhaar Act or the scheme itself.

The court, in its judgement on June 9, rejected all the limited objections, reasoning that Parliament had the power to enact the specific provisions. Each point of rejection, however, raises a question that constitutional bench must answer. Whether Aadhaar “should remain voluntary or it can be made mandatory imposing compulsiveness”?

Sliver of hope

Still, even while rejecting all points of challenge to Section 139AA, the Supreme Court has provided a sliver of hope. For one, it has stayed cancellation of PAN as the penalty for not having Aadhaar, citing twin reasons. One, the penalty is severe. Cancelling the PAN would literally be a “civil death” as it would disqualify the person from day to day financial transactions that require it to be quoted, the court said. The second reason is more significant. The court stated:

“The validity of the provision upheld in the aforesaid manner is subject to passing the muster of Article 21 of the Constitution, which is the issue before the Constitution Bench...Till then, there shall remain a partial stay on the operation of proviso to sub-section (2) of Section 139AA of the Act.”

The implications of this statutory recasting are still being debated by legal experts, not least because it is ambiguous. Given that Section 139AA(1) stands as is, will Aadhaar still be mandatory for filing income tax returns? Is the stay only on the penalty for commercial transactions or does it apply to filing tax returns as well? If a person files the returns without quoting Aadhaar, will the filing be rejected, marked defective or accepted without the prescribed penalty of PAN cancellation?

That the judgement is not happily worded on these aspects is worrying because the government may adopt an interpretation that best serves its interests. The Central Board of Direct Taxes’ clarification on Saturday seems to confirm the apprehension: it is necessary for people without Aadhaar to obtain one if they wish to file their tax returns after July 1. This only adds urgency to the final determination of the Aadhaar cases by a Constitution bench.

Significantly, the June 9 judgement holds that restrictions placed by the apex court on the use of Aadhaar in 2015 cannot prevent the legislature from enacting provisions such as Section 139AA. This aspect of the judgement requires wider examination given the challenges in several High Courts against Aadhaar-related notifications draw strength from such orders. It also reinforces the seriousness of the main challenges to the Aadhaar Act as well as the constitutional reference.

On June 27, the Supreme Court is scheduled to hear a separate batch of petitions against the coercive nature of the Aadhaar Act and its denial of services. We may approach the hearing with tempered hope, but the fact is that until a constitution bench sits and decides, the legal opposition to Aadhaar cannot be properly adjudicated on the touchstone of our right to life, privacy and human dignity.

For now, the Aadhaar-PAN judgement is a cause for cautious optimism. It states that Aadhaar and Section 139AA of the Income Tax Act have to pass a “more stringent test” under Article 21. It also reinforces the spirit of earlier orders limiting the Aadhaar scheme by giving a limited stay on Section 139AA(2). At the same time, the decision signals urgency, and hope, for a more substantial challenge to the Aadhaar project.

Apar Gupta is a lawyer practising in Delhi. He assists senior counsel for petitioners in some Aadhaar cases and believes that Aadhaar violates individual privacy and also leads to denial of services to the most vulnerable Indians.

We welcome your comments at letters@scroll.in.
Sponsored Content BY 

What hospitals can do to drive entrepreneurship and enhance patient experience

Hospitals can perform better by partnering with entrepreneurs and encouraging a culture of intrapreneurship focused on customer centricity.

At the Emory University Hospital in Atlanta, visitors don’t have to worry about navigating their way across the complex hospital premises. All they need to do is download wayfinding tools from the installed digital signage onto their smartphone and get step by step directions. Other hospitals have digital signage in surgical waiting rooms that share surgery updates with the anxious families waiting outside, or offer general information to visitors in waiting rooms. Many others use digital registration tools to reduce check-in time or have Smart TVs in patient rooms that serve educational and anxiety alleviating content.

Most of these tech enabled solutions have emerged as hospitals look for better ways to enhance patient experience – one of the top criteria in evaluating hospital performance. Patient experience accounts for 25% of a hospital’s Value-Based Purchasing (VBP) score as per the US government’s Centres for Medicare and Mediaid Services (CMS) programme. As a Mckinsey report says, hospitals need to break down a patient’s journey into various aspects, clinical and non-clinical, and seek ways of improving every touch point in the journey. As hospitals also need to focus on delivering quality healthcare, they are increasingly collaborating with entrepreneurs who offer such patient centric solutions or encouraging innovative intrapreneurship within the organization.

At the Hospital Leadership Summit hosted by Abbott, some of the speakers from diverse industry backgrounds brought up the role of entrepreneurship in order to deliver on patient experience.

Getting the best from collaborations

Speakers such as Dr Naresh Trehan, Chairman and Managing Director - Medanta Hospitals, and Meena Ganesh, CEO and MD - Portea Medical, who spoke at the panel discussion on “Are we fit for the world of new consumers?”, highlighted the importance of collaborating with entrepreneurs to fill the gaps in the patient experience eco system. As Dr Trehan says, “As healthcare service providers we are too steeped in our own work. So even though we may realize there are gaps in customer experience delivery, we don’t want to get distracted from our core job, which is healthcare delivery. We would rather leave the job of filling those gaps to an outsider who can do it well.”

Meena Ganesh shares a similar view when she says that entrepreneurs offer an outsider’s fresh perspective on the existing gaps in healthcare. They are therefore better equipped to offer disruptive technology solutions that put the customer right at the center. Her own venture, Portea Medical, was born out of a need in the hitherto unaddressed area of patient experience – quality home care.

There are enough examples of hospitals that have gained significantly by partnering with or investing in such ventures. For example, the Children’s Medical Centre in Dallas actively invests in tech startups to offer better care to its patients. One such startup produces sensors smaller than a grain of sand, that can be embedded in pills to alert caregivers if a medication has been taken or not. Another app delivers care givers at customers’ door step for check-ups. Providence St Joseph’s Health, that has medical centres across the U.S., has invested in a range of startups that address different patient needs – from patient feedback and wearable monitoring devices to remote video interpretation and surgical blood loss monitoring. UNC Hospital in North Carolina uses a change management platform developed by a startup in order to improve patient experience at its Emergency and Dermatology departments. The platform essentially comes with a friendly and non-intrusive way to gather patient feedback.

When intrapreneurship can lead to patient centric innovation

Hospitals can also encourage a culture of intrapreneurship within the organization. According to Meena Ganesh, this would mean building a ‘listening organization’ because as she says, listening and being open to new ideas leads to innovation. Santosh Desai, MD& CEO - Future Brands Ltd, who was also part of the panel discussion, feels that most innovations are a result of looking at “large cultural shifts, outside the frame of narrow business”. So hospitals will need to encourage enterprising professionals in the organization to observe behavior trends as part of the ideation process. Also, as Dr Ram Narain, Executive Director, Kokilaben Dhirubhai Ambani Hospital, points out, they will need to tell the employees who have the potential to drive innovative initiatives, “Do not fail, but if you fail, we still back you.” Innovative companies such as Google actively follow this practice, allowing employees to pick projects they are passionate about and work on them to deliver fresh solutions.

Realizing the need to encourage new ideas among employees to enhance patient experience, many healthcare enterprises are instituting innovative strategies. Henry Ford System, for example, began a system of rewarding great employee ideas. One internal contest was around clinical applications for wearable technology. The incentive was particularly attractive – a cash prize of $ 10,000 to the winners. Not surprisingly, the employees came up with some very innovative ideas that included: a system to record mobility of acute care patients through wearable trackers, health reminder system for elderly patients and mobile game interface with activity trackers to encourage children towards exercising. The employees admitted later that the exercise was so interesting that they would have participated in it even without a cash prize incentive.

Another example is Penn Medicine in Philadelphia which launched an ‘innovation tournament’ across the organization as part of its efforts to improve patient care. Participants worked with professors from Wharton Business School to prepare for the ideas challenge. More than 1,750 ideas were submitted by 1,400 participants, out of which 10 were selected. The focus was on getting ideas around the front end and some of the submitted ideas included:

  • Check-out management: Exclusive waiting rooms with TV, Internet and other facilities for patients waiting to be discharged so as to reduce space congestion and make their waiting time more comfortable.
  • Space for emotional privacy: An exclusive and friendly space for individuals and families to mourn the loss of dear ones in private.
  • Online patient organizer: A web based app that helps first time patients prepare better for their appointment by providing check lists for documents, medicines, etc to be carried and giving information regarding the hospital navigation, the consulting doctor etc.
  • Help for non-English speakers: Iconography cards to help non-English speaking patients express themselves and seek help in case of emergencies or other situations.

As Arlen Meyers, MD, President and CEO of the Society of Physician Entrepreneurs, says in a report, although many good ideas come from the front line, physicians must also be encouraged to think innovatively about patient experience. An academic study also builds a strong case to encourage intrapreneurship among nurses. Given they comprise a large part of the front-line staff for healthcare delivery, nurses should also be given the freedom to create and design innovative systems for improving patient experience.

According to a Harvard Business Review article quoted in a university study, employees who have the potential to be intrapreneurs, show some marked characteristics. These include a sense of ownership, perseverance, emotional intelligence and the ability to look at the big picture along with the desire, and ideas, to improve it. But trust and support of the management is essential to bringing out and taking the ideas forward.

Creating an environment conducive to innovation is the first step to bringing about innovation-driven outcomes. These were just some of the insights on healthcare management gleaned from the Hospital Leadership Summit hosted by Abbott. In over 150 countries, Abbott, which is among the top 100 global innovator companies, is working with hospitals and healthcare professionals to improve the quality of health services.

To read more content on best practices for hospital leaders, visit Abbott’s Bringing Health to Life portal here.

This article was produced on behalf of Abbott by the Scroll.in marketing team and not by the Scroll.in editorial staff.