uid

When I opposed Aadhaar in 2010 , I was called a BJP stooge. In 2016 I am still opposing Aadhaar for the same reasons and I am told I am a Congress die hard. No one wants to see why I oppose Aadhaar as it is too difficult. Plus Aadhaar is FREE so why not get one ? Ram Krishnaswamy

First they ignore you, then they laugh at you, then they fight you, then you win. -Mahatma Gandhi

In matters of conscience, the law of the majority has no place. Mahatma Gandhi

“The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.” Article 21 of the Indian constitution refers to the right to life and liberty -Attorney General Mukul Rohatgi

“There is merit in the complaints. You are unwittingly allowing snooping, harassment and commercial exploitation. The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a court for the purpose of criminal investigation.” -A three judge bench headed by Justice J Chelameswar said in an interim order.

Legal scholar Usha Ramanathan describes UID as an inverse of sunshine laws like the Right to Information. While the RTI makes the state transparent to the citizen, the UID does the inverse: it makes the citizen transparent to the state, she says.

Good idea gone bad
I have written earlier that UID/Aadhaar was a poorly designed, unreliable and expensive solution to the really good idea of providing national identification for over a billion Indians. My petition contends that UID in its current form violates the right to privacy of a citizen, guaranteed under Article 21 of the Constitution. This is because sensitive biometric and demographic information of citizens are with enrolment agencies, registrars and sub-registrars who have no legal liability for any misuse of this data. This petition has opened up the larger discussion on privacy rights for Indians. The current Article 21 interpretation by the Supreme Court was done decades ago, before the advent of internet and today’s technology and all the new privacy challenges that have arisen as a consequence.
Rajeev Chandrasekhar, MP Rajya Sabha

“What is Aadhaar? There is enormous confusion. That Aadhaar will identify people who are entitled for subsidy. No. Aadhaar doesn’t determine who is eligible and who isn’t,” Jairam Ramesh

But Aadhaar has been mythologised during the previous government by its creators into some technology super force that will transform governance in a miraculous manner. I even read an article recently that compared Aadhaar to some revolution and quoted a 1930s historian, Will Durant. Rajeev Chandrasekhar, Rajya Sabha MP

“I know you will say that it is not mandatory. But, it is compulsorily mandatorily voluntary,” Jairam Ramesh, Rajya Saba April 2017


Special

Here is what the Parliament Standing Committee on Finance, which examined the draft N I A Bill said.

1. There is no feasibility study of the project]

2. The project was approved in haste

3. The system has far-reaching consequences for national security

4. The project is directionless with no clarity of purpose

5. It is built on unreliable and untested technology

6. The exercise becomes futile in case the project does not continue beyond the present number of 200 million enrolments

7. There is lack of coordination and difference of views between various departments and ministries of government on the project

Quotes

What was said before the elections:

NPR & UID aiding Aliens – Narendra Modi

"I don't agree to Nandan Nilekeni and his madcap (UID) scheme which he is trying to promote," Senior BJP Leader Yashwant Sinha, Sept 2012

"All we have to show for the hundreds of thousands of crore spent on Aadhar is a Congress ticket for Nilekani" Yashwant Sinha.(27/02/2014)

TV Mohandas Pai, former chief financial officer and head of human resources, tweeted: "selling his soul for power; made his money in the company wedded to meritocracy." Money Life Article

Nilekani’s reporting structure is unprecedented in history; he reports directly to the Prime Minister, thus bypassing all checks and balances in government - Home Minister Chidambaram

To refer to Aadhaar as an anti corruption tool despite overwhelming evidence to the contrary is mystifying. That it is now officially a Rs.50,000 Crores solution searching for an explanation is also without any doubt. -- Statement by Rajeev Chandrasekhar, MP & Member, Standing Committee on Finance

Finance minister P Chidambaram’s statement, in an exit interview to this newspaper, that Aadhaar needs to be re-thought completely is probably the last nail in its coffin. :-) Financial Express

The Rural Development Ministry headed by Jairam Ramesh created a road Block and refused to make Aadhaar mandatory for making wage payment to people enrolled under the world’s largest social security scheme NRGA unless all residents are covered.


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Wednesday, October 7, 2015

8839 - Aadhar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions



From reports of today’s Supreme Court proceedings in the Aadhaar review petitions, it appears that counsel invoked the doctrine of waiver: it was argued that citizens were entitled to waive their fundamental right to privacy (assuming that privacy is a fundamental right) in return for the governmental benefits that the possession of an Aadhaar card confers. The implications of the argument are significant, because it would allow the government to make Aadhaar not just optional, but mandatory as well: the government could argue that under a mandatory Aadhaar regime, citizens still have the option of protecting their privacy by foregoing Aadhaar (and its accompanying benefits), or taking Aadhaar, and waiving their right to privacy. In other words, citizens can choose to waive their right if they want access to certain benefits.

Framing the question as being one of waiver, however, misstates the real issue. The real issue is not whether, in the abstract, citizens can waive their fundamental rights if they so choose. It is whether the government can impose waiver of fundamental rights as a condition for accessing certain benefits. With respect to Aadhaar, the stakes are even higher, because the debate has been framed around the needs of poorer citizens to access government benefits. For many of these citizens, the choice between accessing benefits and losing privacy is a false choice, because it requires them to choose between a privilege that is essential for their livelihood, and a fundamental right.

In a recent, previous post, I had discussed the doctrine of unconstitutional conditions in relation to the denial of tax benefits to a film on homosexuality. I will not repeat the argument here, but only reproduce the relevant paragraph from the concurring opinion of Justices Chandrachud and Mathew in Ahmedabad St Xavier’s College vs State of Gujarat:
“The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution… though the state may have privileges within its control which it may withhold, it cannot use I a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”
Soon after, the judges explained the purpose of the doctrine of unconstitutional conditions further, by referencing the reasoning of Justice Sutherland at the US Supreme Court, in strikingly relevant terms:
“If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool–an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.”
And:
“This is much the same as what Das, C.J. said in In re: The Kerala Education Bill: No educational institutions can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights, they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1)“.
This last bit is particularly important, because the Aadhaar debate is framed around the access of poorer citizens to government benefits. For these citizens, those benefits are financial necessities. In Re Kerala Education Bill and Ahmedabad St Xavier’s College make it clear that by putting citizens in a position where they have to make a choice between a compelling financial necessity and the waiver of fundamental rights, the government is effectively giving them no choice at all, and is restricting their fundamental rights indirectly, by providing an illusion of choice and waiver. This logic applies squarely to the argument that privacy rights may be waived in order to access benefits linked to Aadhaar.

Original author: gautambhatia1988