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 14, 2015

8936 - Aadhar: the Past and the Future - Legally India

13 October 2015
  


By Joshita Pai & Sarvjeet Singh

The Unique Identification Authority of India (UIDAI) was set up under the chairmanship of Mr. Nandan Nilekani in 2009 by an executive notification to generate and assign unique identification numbers to residents.

After persistent protests asserting that a project, which requires collection of information such as biometric data, cannot be carried out in the absence of a legal framework, the National Identification Authority of India Bill, 2010 was introduced in the Rajya Sabha. The Parliamentary Standing Committee on Finance  subsequently found the bill unsuitable citing concerns such as national security and potential privacy violations, duplication of the National Population Register’s (NPR) activities and asked the Government to reconsider the UID scheme. A fundamental issue raised by the Committee was the scope of Aadhar, which covers residents and not citizens.

Towards Aadhaar-enabled delivery of services and applications, UIDAI provides online authentication using the resident’s demographic and biometric information. Services such as e-ration card, linkage of banking services, The Ministry of Petroleum and Natural Gas brought in an amendment in 2011 to its Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 making the Unique Identification Number (UID) under the Aadhaar project compulsory for availing LPG refills.

The mandatory nature attached to the Aadhaar project however, invited a string of petitions linked to main petition filed by Justice Puttaswamy addressing the lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhar. In November 2013 during one of the hearings of the matter, the Supreme Court concluded that the matter holds importance to all the states and union territories to be impleaded as parties to the case and passed an order to this effect.

The Attorney General defended the project stating that UIDAI requires only basic identity data such as name, age, gender, address and relationship details in case of minors, for issue of unique identity number, commonly known as Know Your Resident. The maintained response from the ministry has been that the UID scheme is envisaged as a means to enhance the delivery of welfare benefits and services and is not carved out for fulfilling surveillance purposes. The UID has clarified that only the person to whom the data is related will be entitled to seek and access the information contained in the Aadhaar database, in pursuant of section 8(j) of the RTI.

In March 2014, the Supreme Court restrained the UIDAI from transferring biometric information to any other agency without the written consent of the aadhaar card holder. The CBI, while investigating the rape of a girl in a school toilet in Goa requested the UIDAI to handover its biometric database. The Judicial Magistrate First Class of Goa issued an order directing the UIDAI to comply with the CBI’s requests. It was protested by the UIDAI in the Bombay High Court which dismissed the petition and the matter was appealed before the Supreme Court. CBI’s request for handing over the data was declined and the UIDAI in its petition refused to share the data citing privacy concerns. The UID petition has also been tagged with the other petitions.

The Supreme Court has prior to the 11th August, 2015 interim order, on three occasions – on September 23rd 2013, March 24th 2014 and March 16th 2015 declared that services cannot be made incumbent on the Aadhar number.

Reiterating the mandate of making Aadhaar and optional process, the Supreme Court, on 11th August, 2015 declared that Aadhaar card will be mandatory only for availing LPG and PDS services. The UID website now carries at the bottom of its homepage a statement to the end that enrollment for Aadhaar is voluntary. The order has not been implemented in practice since schemes such as digital locker and the online health portal schemes are still linked to aadhaar. The principal opposition to Aadhaar in the Supreme Court has been the question of privacy and the same was argued before the Court.

Defending Aadhaar, the Attorney General placing reliance on M.P. Sharma v. Satish Chandra (decided by a 8 judge bench in 1954) and Kharak Singh v. State of U.P. (decided by a 6 judge bench in 1962), stated that the right to privacy is not guaranteed under the Constitution and its position is doubtful. He further argued that the subsequent decisions in Gobind v. State, Rajagopal v. T.N. and PUCL v. UOI were rendered by smaller benches. The August 11th order therein referred the question of determining the existence of privacy to a larger constitutional bench.

The interim orders were repeatedly sought to be quashed by the Centre in order to facilitate the promised social welfare schemes. Last week, the Supreme Court rejected the plea to stay the order and decided to refer any clarifications or modifications to the Constitutional Bench. The request was processed immediately and a five judge bench was accordingly set up and will be hearing the petition on the 14th of October, 2015. According to these reports, six different state governments, Indian Banks’ Association, UIDAI, SEBI, RBI, and TRAI have joined the case defending the Centre’s stance and asking the court to allow usage of Aadhar identity proof for all welfare schemes.

Going forward the various issues that need to be decided by the Court are in respect to the issue of privacy are:
  1. Whether there is any “right to privacy” guaranteed under the Indian Constitution?
  2. If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy.
India follows the principle of “stare decisis”. The principle of stare decisis is of utmost importance by virtue of the fact that the law declared by the Supreme Court shall be binding on all courts within India (article 141). Moreover, it is an accepted principle that except in certain situations, in cases of conflict between various judgments the opinion expressed by the larger bench prevails. Therefore, ideally to overrule the judgment by an eight-judge bench in MP Sharma, a nine-judge bench should be constituted.

The constitutional bench that has been formed is a five-judge bench comprising of Chief Justice of India H.L Dattu, and justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy. Starting this afternoon, it will be tasked with determining the fate of Aadhaar and deciding on Centre’s plea of seeking a modification of the Court’s order restricting the usage of Aadhar and to decide upon the existence of privacy as a constitutional right.
A timeline of the case till August 2015 is available here and a list of the various petitions tagged together is available here.


Original author: Joshita Pai