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.

August 24, 2017: The nine-judge Constitution Bench rules that right to privacy is “intrinsic to life and liberty” and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution

"Never doubt that a small group of thoughtful, committed citizens can change the World; indeed it's the only thing that ever has"

“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” - Edward Snowden

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.


Friday, October 9, 2015

8893 - Why Aadhar’s Backers are Wrong to Say Privacy Rights Can be Voluntarily Waived - The Wire




Projet de biométrie. Credit: Benoit Crouzet/Flickr CC BY 2.0

When the constitutional validity of the Unique Identification Authority of India (Aadhaar) was challenged last year by a retired judge, Justice K.S. Puttaswamy and a host of other petitioners, the primary question before the Supreme Court was whether the collecting and storing of biometric and other information would compromise a citizen’s right to privacy.

During the final hearings in this case in July, the Attorney General Mukul Rohatgi – appearing on behalf of the Union of India – claimed that there was no fundamental right to privacy under the Indian constitution. This week, K.K. Venugopal, appearing on behalf of one of the parties, the pro-UID Centre for Civil Society, submitted that even if privacy was a fundamental right, the Aadhaar beneficiaries would not mind waiving it for the sake of accessing welfare benefits. He also submitted that the court could not insist that the beneficiary retain the right to privacy if he wanted to waive it.

It is not clear which of these two assertions is more dangerous – the assumption that the beneficiary would not mind waiving his right to privacy to access benefits, or that a beneficiary should be able to waive his privacy rights if he wants to.

Can an individual voluntarily waive his right to privacy by enrolling for Aadhaar? The Supreme Court has referred this question for consideration by the Constitution Bench while refusing to modify its August 11, 2015  interim order restricting the use of Aadhaar to identify beneficiaries for the public distribution system and cooking gas and kerosene subsidies.

The question before the yet to be formed constitutional bench therefore is twofold – whether the right to privacy is a fundamental right, and whether such a right can be waived voluntarily. The court will have to consider the applicability of the doctrine of waiver as well as the legality of the waiver when it decides the latter question. The government has argued that access to benefits can only occur upon the surrendering of privacy. If this is the position, then a genuine free choice is unavailable to the beneficiary, which serves as a precondition for waiving a right. The argument that beneficiaries are free to choose if they want to part with the right to privacy is therefore essentially a flawed one.

The Attorney General has already argued that there is no fundamental right to privacy under the Indian Constitution. While it is true that there is no mention of the phrase ‘right to privacy’ in the the Indian Constitution, one also has to be aware of the fact that notionally the constitution is much more than its written text.

The government’s arguments about privacy in the Aadhaar case seem to hinge on its deep reliance on the long forgotten case of M.P. Sharma v Satish Chandra (1954) and Kharak Singh (1963), where the apex court held that privacy was not a fundamental right. What these two judgments had stated was that there was no fundamental right to privacy in the Constitution, which as the written text of the Constitution will show is a matter of fact. But a constitution is also its unwritten text in the penumbra of judicial decisions and privacy jurisprudence in India has walked several miles since these two cases.

The Maneka test
While the court in 1954 had found no justification to import privacy “into a totally different fundamental right, by some process of strained construction” (M.P. Sharma), it has since then repeatedly articulated privacy in the scheme of fundamental rights, including, perhaps most notably in Gobind v Madhya Pradesh, where Justice Mathew acknowledged that the right to privacy flows from Article 19 (1) (a) (freedom of speech and expression), (d) (freedom of movement) and 21 (right to life and personal liberty). While holding that the right to privacy, though a fundamental right, was not absolute, he asserted that a restriction on that fundamental right had to be in the face of ‘compelling public interest’.

Gobind, relying on a number of American cases like Griswold, Roe v Wade and the minority opinion of Kharak Singh, had noted that the “rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis of intrusion exists.”

Personal liberty in Article 21, in the post-Maneka Gandhi jurisprudence covers a variety of rights and some of these rights have the status of fundamental rights and have an additional layer of protection under Article 19. Maneka Gandhi’s triple test for any law interfering with personal liberty is that first, it must prescribe a procedure; second, the procedure must withstand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given situation; and third, it must withstand the equality test of Article 14. This is very much the reading for the law and procedure authorising interference with personal liberty and right of privacy – that it should be right, just and fair and not arbitrary, fanciful or oppressive.

The inter-relationship of rights was also noted in Maneka Gandhi, which explains much of the last few decades of the court’s understanding of inter-dependence of rights and the nexus between Article 14 (equality), Article 19 (fundamental freedoms) and Article 21 (life and personal liberty). Any right derived from Article 19 can therefore also be derived from Article 21 under the umbrella of ‘personal liberty’. Privacy or the right to be let alone, has been held to be implicit in Article 21, in a number of subsequent cases like R. Rajagopal v. State of Tamil Nadu (Auto Shankar Case) and PUCL v Union of India. The court in the latter case, noting that the right to privacy is inherent in Article 21, laid down guidelines for interception under S.5 of the Telegraph Act, 1885.

Between rock and whirlpool
Assuming, the right to privacy is a fundamental right, can it then be waived voluntarily, as Venugopal submitted before the court? Can a fundamental right be waived at all?

The Supreme Court in Behram v State of Maharashtra examined this question and stated that fundamental rights were not kept in the Constitution merely for individual benefits. Fundamental rights were a matter of public policy and thus, the doctrine of waiver does not apply in case of fundamental rights. In other words, a citizen cannot ‘give up’ his fundamental rights. 

Later, in the Basheshar Nath case, Chief Justice Das and Justice Kapur, limiting their decision to Article 14, held that the right conferred by the article, could not be waived. Justice Bhagwati went a step further and stated that the Constitution was ‘sacrosanct’, that it would be a ‘sacrilege’ to whittle down fundamental rights and that it was the ‘sacred’ duty of the Supreme Court to safeguard fundamental rights. The court held that the Constitution makes no distinction between the fundamental rights enacted for the benefit of an individual and fundamental rights enacted for the benefit of the public. The court noted that such a distinction which was made by the US Supreme Court – to allow waiving of rights in the case of the former but not the latter – was not applicable in the Indian case because the two constitutions were framed for securing very different objectives. India was a “nascent democracy” and it was the sacred duty of the Supreme Court to safeguard fundamental rights. This position has been subsequently reiterated in Olga Tellis, Nar Singh Pal v Union of India etc.

The ‘voluntariness’ of ‘opting in’ for the Aadhaar card is also suspect here. The irrevocable nature of alienation of privacy rights by surrendering biometric information means that the opt in mechanism is not supported by an opt out one. Is it morally right for a government to insist on the waiver of fundamental rights for accessing benefits? The Supreme Court in 1974 elaborated the doctrine of unconstitutional conditions in Ahmedabad St Xavier’s College v State of Gujarat as “any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right.” Justice Sutherland of the US Supreme Court had spelt out how an unconstitutional condition, in the garb of voluntariness, gives the carrier 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.” This shall be the lasting legacy of a ‘voluntary’ waiver of right to privacy. Only this, and nothing more.

Jhuma Sen is Assistant Professor of Law at O.P. Jindal Global University