Executive Overreach

Posted by Aariz Imam
November 14, 2017

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To uncaring minds what similarity exists between Aadhaar and Accession but for the vowel “A” and the fact that they are government prerogatives.

A little peep through this maze of normative observation and we come across a twisted umbilical cord of state arrogance that runs common across all its policy decisions, wreaking unprecedented havoc in unrelated terrains by trampling upon a citizen’s choice and unwillingness to partner with the government’s vision.


Maharaja Hari Singh, the ruler of princely state of Jammu and Kashmir agreeing to accede to India signed on an instrument of accession that vested the dominion of India the power to make laws only in the subjects mentioned in the schedule of accession, namely Defence, Foreign Affairs and Communications. Constituent Assembly subsequently introduced a mechanism to safeguard this nature of India’s relation with Jammu & Kashmir under the Part XXI of the Constitution of India, which dealt with “Temporary, Transitional and Special provisions”. Article 370 thus introduced also ensured that any future attempts to amend this constitutional compact would require a consultation with the Jammu & Kashmir constituent assembly. But a series of presidential orders over past 70 years passed to extend Delhi’s legislative power over the state of Jammu & Kashmir have rendered hollow this extraordinary constitutional position of Kashmir. Presently, 94 of the 97 entries in the union list have been extended to Kashmir as also 260 of 395 provisions of the Indian constitution. All this by perverting Article 370, the repository of all rights and privileges incidental in case of Jammu & Kashmir. So much so that this brazen act has been called “The rape of article 370” by the constitutional expert A. G. Noorani.

Unique Identification Authority of India’s Aadhaar number, though unrelated to the above Instrument of Accession dispute at its face is another of those efforts that highlight how the government through its sheer power could subvert established constitutional provisions. Aadhaar as a unique number was conceptualized to facilitate various government provisioning services. Its database was supposed to host the biometrics of the citizens which in turn could be leveraged for better targeting of subsidies. The concept was rolled out with much fanfare without taking into consideration the numerous hurdles it would face, foremost being that of privacy. The stated government stand right from the beginning was that it was not compulsory for one to enrol in the Aadhaar database. But then it was shrewdly introduced as a money bill in the parliament to escape any opposition. In schemes after schemes it was made mandatory to produce Aadhaar card for securing services. From LPG connections, Public distribution system, maternity benefits to mid-day meals, university entrance and pension schemes, today we have over 50 centrally sponsored schemes besides numerous state schemes for which Aadhaar card has become the necessary prerequisite. All this when Supreme court, as an interim relief had held that it cannot be made compulsory, and when it is still hearing multiple petitions filed against it.

Making Aadhaar the necessary criteria for availing an overarching domain of services without making Aadhaar registration in itself compulsory is much like the silent erosion of Article 370 wherein its ambit has been encroached through presidential orders without annulling Article 370 itself. Thus, what is left for us is an injured Supreme court order and a dead constituent assembly innovation in the form of an Aadhaar card and an Instrument of Accession respectively. The citizen as well as a state’s choice being effectively and summarily written off with due process.

This executive overreach is annoyingly the only act of government which boasts of its parity, equity and fairness in dealing with all its citizens. The only thing different it employs towards this end being the tools and tackles.  From ordinance to presidential orders from ordinary bills to money bills, the results are always the same, one of gross violation of rights.


Md. Aariz Imam


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