Recently, the government announced that it plans to transfer benefits under various schemes directly into the bank accounts of individual beneficiaries.  Benefits can be the Mahatma Gandhi National Rural Employment Guarantee Scheme (MNREGS) wages, scholarships, pensions and health benefits.  Beneficiaries shall be identified through the Aadhaar number (Aadhaar is an individual identification number linked to a person’s demographic and biometric information).  The direct cash transfer (DCT) system is going to be rolled out in 51 districts, starting January 1, 2013.  It will later be extended to 18 states by April 1, 2013 and the rest by April 1, 2014 (or earlier).  Presently, 34 schemes have been identified in 43 districts to implement the DCT programme. Currently, the government subsidises certain products (food grains, fertilizers, water, electricity) and services (education, healthcare) by providing them at a lower than market price to the beneficiaries.  This has led to problems such as high fiscal deficit, waste of scarce resources and operational inefficiencies.  The government is considering replacing this with an Aadhaar enabled DCT system.  It has claimed that the new system would ensure timely payment directly to intended beneficiaries, reduce transaction costs and leakages.  However, many experts have criticised both the concept of cash transfer as well as Aadhaar (see here, here, here and here). In this blog, we provide some background information about cash transfer, explain the concept of Aadhaar and examine the pros and cons of an Aadhaar enabled direct cash transfer system. Background on cash transfer Under the direct cash transfer (DCT) scheme, government subsidies will be given directly to the beneficiaries in the form of cash rather than goods.  DCTs can either be unconditional or conditional.  Under unconditional schemes, cash is directly transferred to eligible households with no conditions. For example, pension schemes.  Conditional cash transfers provide cash directly to poor households in response to the fulfillment of certain conditions such as minimum attendance of children in schools.  DCTs provide poor families the choice of using the cash as they wish.  Having access to cash also relieves some of their financial constraints.  Also, DCTs are simpler in design than other subsidy schemes.  Even though cash transfer schemes have a high fixed cost of administration when the programme is set up, running costs are far lower (see here, here and here). Presently, the government operates a number of DCT schemes.  For example, Janani Suraksha Yojana, Indira Awas Yojana and Dhanalaksmi scheme. In his 2011-12 Budget speech, the then Finance Minister, Pranab Mukherjee, had stated that the government plans to move towards direct transfer of cash subsidy for kerosene, Liquified Petroleum Gas (LPG), and fertilizers.  A task force headed by Nandan Nilekani was set up to work out the modalities of operationalising DCT for these items.  This task force submitted its report in February 2012. The National Food Security Bill, 2011, pending in Parliament, includes cash transfer and food coupons as possible alternative mechanisms to the Public Distribution System. Key features of Aadhaar The office of Unique Identification Authority of India (UIDAI) was set up in 2009 within the Planning Commission.  In 2010, the government later introduced the National Identification Authority of India Bill in Parliament to give statutory status to this office.

  • The Aadhaar number is a unique identification number that every resident of India (regardless of citizenship) is entitled to get after he furnishes his demographic and biometric information.  Demographic information shall include the name, age, gender and address.  Biometric information shall include some biological attributes of the individual (such as fingerprints and iris scan).  Collection of information pertaining to race, religion, caste, language, income or health is specifically prohibited.
  • The Aadhaar number shall serve as proof of identity, subject to authentication.  However, it should not be construed as proof of citizenship or domicile.
  • Process of issuing and authenticating Aadhaar number: First, information for each person shall be collected and verified after which an Aadhaar number shall be allotted.  Second, the collected information shall be stored in a database called the Central Identities Data Repository.  Finally, this repository shall be used to provide authentication services to service providers.

For a PRS analysis of the Bill, see here. Aadhaar enabled direct cash transfers Advantages Identification through Aadhaar number: Currently, the recipient has to establish his identity and eligibility many times by producing multiple documents for verification.  The verification of such documents is done by multiple authorities.  An Aadhaar enabled bank account can be used by the beneficiary to receive multiple welfare payments as opposed to the one scheme, one bank approach, followed by a number of state governments. Elimination of middlemen: The scheme reduces chances of rent-seeking by middlemen who siphon off part of the subsidy.  In the new system, the cash shall be transferred directly to individual bank accounts and the beneficiaries shall be identified through Aadhaar. Reduction in duplicate and ghost beneficiaries: The Aadhaar number is likely to help eliminate duplicate cards and cards for non-existent persons or ghost beneficiaries in schemes such as the PDS and MNREGS.     Disadvantages Lack of clarity on whether Aadhaar is mandatory:  According to UIDAI, it is not mandatory for individuals to get an Aadhaar number.  However, it does not prevent any service provider from prescribing Aadhaar as a mandatory requirement for availing services.  Therefore, beneficiaries may be denied a service if he does not have the Aadhaar number.  It is noteworthy that the new direct cash transfer policy requires beneficiaries to have an Aadhaar number and a bank account.  However, many beneficiaries do not yet have either.  (Presently, there are 229 million Aadhaar number holders and 147 million bank accounts). Targeting and identification of beneficiaries:  According to the government, one of the key reasons for changing to DCT system is to ensure better targeting of subsidies.  However, the success of Aadhaar in weeding out ‘ghost’ beneficiaries depends on mandatory enrollment.  If enrollment is not mandatory, both authentication systems (identity card based and Aadhaar based) must coexist.  In such a scenario, ‘ghost’ beneficiaries and people with multiple cards will choose to opt out of the Aadhaar system.  Furthermore, key schemes such as PDS suffer from large inclusion and exclusion errors.  However, Aadhaar cannot address errors in targeting of BPL families.  Also, it cannot address problems of MNREGS such as incorrect measurement of work and payment delays. Safeguard for maintaining privacy: Information collected when issuing Aadhaar may be misused if safeguards to maintain privacy are inadequate.  Though the Supreme Court has included privacy as part of the Right to Life, India does not have a specific law governing issues related to privacy.  Also, the authority is required to maintain details of every request for authentication and the response provided.  However, maximum duration for which such data has to be stored is not specified.  Authentication data provides insights into usage patterns of an Aadhaar number holder.  Data that has been recorded over a long duration of time may be misused for activities such as profiling an individual’s behaviour.

This week, an in-house inquiry committee was constituted to consider a complaint against the current Chief Justice of India.  Over the years, three mechanisms have evolved to investigate cases of misconduct, including cases of sexual harassment, misbehaviour or incapacity against judges.  In this blog, we summarise the procedure for investigating such charges against judges of the Supreme Court.  

  • In-house procedure (1999): The Supreme Court has an in-house process to deal with allegations against a judge relating to the discharge of his judicial function, or with regard to his conduct or behaviour outside court.   
  • Sexual harassment guidelines: In 2013, Parliament passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.  Subsequently, the Supreme Court framed regulations for protection of women against sexual harassment in the Supreme Court. Under the regulations, the CJI is required to constitute a Gender Sensitisation and Internal Complaints Committee (GSICC).  The GSICC will include 7-13 members including: (i) one or two judges of the Supreme Court, and (ii) up to two outside members (having experience in social justice, women empowerment, gender justice, among others) to be nominated by the CJI.  The Regulations require the majority of the members of GSICC to be women.  As of 2018, the GSICC has received 13 complaints, out of which 10 have been disposed of. 
  • Removal for proven misbehaviour or incapacity: Charges of misconduct may also be investigated in the context of proceedings for removal of a judge.  Article 124(4) of the Constitution of India provides that a judge can be removed only by Parliament on the basis of a motion in either the Lok Sabha or Rajya Sabha.  The procedure for removal of judges is elaborated in the Judges Inquiry Act, 1968.  Till date, no judge of the higher judiciary has been impeached under this process. 

Table 1: Process for investigation of charges against a Supreme Court judge

 

In-house Procedure of Supreme Court

2013 SC Sexual Harassment Regulation

Removal Proceedings

Who may file a complaint

  • Complaint of misconduct may be filed by any person.
  • Written complaint of sexual harassment by a woman.
  • Signed notice by at least 100 members of the Lok Sabha, or 50 members of the Rajya Sabha on charges of misbehaviour or incapacity by a judge. 

Persons to whom complaint must be filed

  • CJI or President of India
  • GSICC
  • Presiding Officer of the relevant House of Parliament

Preliminary Inquiry

  • The CJI is required to determine whether the complaint is either frivolous or serious. If the complaint is frivolous or relates to a pending case, no further action will be taken.
  • If the CJI finds that the complaint involves serious misconduct or impropriety, he will seek the response of the concerned Judge. 
  • Based on the response and supporting materials, if the CJI finds that the complaint needs a deeper probe, he will constitute an inquiry committee. 
  • If the GSICC is satisfied that the complaint is genuine, it will constitute a three-member Internal Sub-Committee to conduct an inquiry into the complaint. 
  • If the notice is in order, the Presiding Officer will constitute a three-member committee to investigate the complaint.

Composition of Inquiry Committee

  • The Committee will comprise three judges including a Judge of the Supreme Court and two Chief Justices of other High Courts.
  • The Committee will comprise members of the GSICC or persons nominated by the GSICC, with majority members being a woman and an outside member.
  • The committee will comprise a Supreme Court judge, Chief Justice of a High Court, and a distinguished jurist. 

Time limit for submission of inquiry report

  • No specific time limit provided.
  • To be completed within 90 days of the constitution of the Internal Sub-Committee, and forwarded to the GSICC within 10 days of completion. 
  • To be submitted to the presiding officer within 90 days.

Findings of the Committee

  • The Committee may report to the CJI that:

​1.  there is no substance in the allegation made, or,

2.  there is substance in the allegations but the misconduct is not of such serious nature as to warrant removal, or,

3.  the misconduct is serious enough to initiate removal proceedings against the judge. 

  • If the committee concludes that the allegation has been proved, it will submit its report to the GSICC to pass appropriate orders within 45 days.
  • If more than two thirds of the GSICC members differ from the conclusion of the Committee, it will, after hearing the complainant and the accused, record its reasons for differing and pass orders.
  • After concluding its investigation, the Committee will submit its report to the presiding officer, who will lay the report before the relevant House.

 

Action taken upon submission of report

  • If the finding is under category (2) above, the CJI may call and advise the Judge accordingly and direct that the report be placed on record.
  • If the finding is under category (3) above, the CJI may ask the judge to resign or seek voluntary retirement.  If the judge refuses to resign, the CJI may decide to not allocate any judicial work to the judge concerned. 
  •  Further, the CJI may inform the President of India and the Prime Minister of his reasons for the action taken and forward a copy of the inquiry report to them.
  • The GSICC has the power to: (i) to pass an order of admonition (reprimand), which may also be published in the court precinct, or (ii) pass an order to prohibit the accused from harassing or communicating with the complainant, or (iii) pass any other order to end the sexual harassment faced by the complainant.
  • GSICC may also recommend to the CJI to pass orders against the accused, including: (i) prohibiting entry of the accused into the Supreme Court for up to a year, or (ii) filing a criminal complaint before the concerned disciplinary authority governing the accused.
  • If the report records a finding of misbehaviour or incapacity, the motion for removal will be taken up for consideration and debated. 
  • The motion is required to be adopted by each House by a majority of the total membership of that House and a majority of at least two-thirds of the members of that House present and voting.
  • Once the motion is adopted in both Houses, it is sent to the President, who will issue an order for the removal of the judge.

Process for Appeals

  • No specific provision.
  • Any aggrieved person may make a representation to the CJI to set aside/modify the orders passed by the GSICC.  The CJI also has the power to issue any other orders in order to secure justice to the victim.
  • No specific provision.

Sources: Report of the Committee on In-House Procedure, December 1999, Supreme Court of India; Gender Sensitisation and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013; Article 124(4), Constitution of India; Judges Inquiry Act, 1968 read with the Judges Inquiry Rules, 1969; PRS.