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.


Saturday, April 8, 2017

11005 - The Aadhaar Programme Violates Democratic Process And Constitutional Rights - Caravan Magazine



By UJWALA UPPALURI | 5 April 2017

             JONATHAN TORGOVNIK/GETTY IMAGES

Tax-paying Indians now face a choice between obtaining an Aadhaar card to comply or being ascribed the status of a criminal.

It is difficult to understate the scale and significance of Aadhaar, the government’s programme for a national identification card for every Indian. More than one billion Indians have already been enrolled, and their personally identifiable information—biometrics, bank-account and demographic details—are already held in a government database, the legality and security of which is contested. Disagreements about Aadhaar are disagreements about no less than what it means to be a citizen in a democratic state, as the unfolding litigation challenging the Aadhaar programme attests.

Several petitions challenging Aadhaar are pending before the Supreme Court. Until the court pronounces its final judgment on the programme’s legality, this much is clear from its previous orders: enrolment into Aadhaar is “purely voluntary.” This ruling has been honoured in its repeated breach by the government. The latest breach has been in the passage of an amended Finance Bill, 2017, which would make an Aadhaar number mandatory for the filing of tax returns.

The cases before the court raise two classes of questions about the Aadhaar programme and the Aadhaar Act, which enables it. Both classes relate to their compatibility with the Constitution of India, in terms of its text as well as the value commitments that the text necessarily implies. Chief among these is a commitment to our republican form, which requires a recognition that sovereign power vests not in any political party or constitutional functionary but rather in us all, as citizens. At play in the Aadhaar cases are all the corollaries of this commitment: that the government, parliament and courts are mere custodians of political power, that Indian citizens are not subjects, and that they are entitled to a government that is transparent, accountable and solicitous of citizens’ rights above all else.

The first class of questions before the court relates to matters of the everyday life of a democratic government and how it ought to look. These arguments posit that Aadhaar conflicts with both constitutional structure and process. They rest on the notion that only democratic processes can yield democratic and constitutionally defensible outcomes. They are a call for a government that operates in good faith.

The most recent impetus for concerns in this class is the passage of the Finance Bill, 2017—a money bill—in the Lok Sabha on 30 March. Money bills are a special species of legislation. Article 110 of the Constitution leaves no doubt as to their contents: a money bill “contains provisions only dealing with” matters relating to public finances. The same provision empowers the speaker of the Lok Sabha to make the final decision in instances where any question as to whether a bill has the character of a money bill arises. Article 109 of the Constitution, which lays out the procedure through which a money bill is passed, gives the Rajya Sabha little effective say: a money bill can only be introduced in the Lok Sabha, and unlike ordinary legislation, the Rajya Sabha can only recommend amendments to the bill, which the Lok Sabha is free to disregard if it chooses.

Each year, the Union’s budgets are passed this way. This year’s finance bill included 40 amendments, none of which had any discernible link to public finances in the way that Article 110 envisions. Among these was the amendment that would make Aadhaar mandatory for filing tax returns and applying for a Permanent Account Number (PAN) card. Almost exactly a year ago, the Aadhaar Act was also pushed through the parliament as a money bill amid protests by the opposition. (A challenge to the speaker’s decision to certify the Aadhaar Bill as a money bill is presently pending before the Supreme Court.)

At the Supreme Court, the central government will likely evade meeting arguments from Aadhaar’s critics about the use of the money bill. It could do so by arguing that the speaker’s determination about the nature of a proposed legislation is beyond the pale of the court’s powers of judicial review. As a matter of parliamentary procedure, the speaker determines which legislations are tabled in Lok Sabha, how they’re categorised, and the length and context of the discussion of the legislation in the house. The position allows for a wide discretion, but it comes with the presumption that it will be exercised responsibly. But to ensure the good health of democracy, it is equally important that we, as citizens in whose interest the speaker should act, subject the speaker’s decisions to careful scrutiny and call it to account whenever necessary.
Another omission in complying with parliamentary procedure was the government’s failure to give effective notice of the amendments to the bill before the finance minister introduced them in the Lok Sabha. The amendments were circulated less than 48 hours before the introduction of the bill in parliament, and had found no mention in his budget speech on 1 February. In order to facilitate these amendments, the speaker suspended the rule that requires amendments to a bill to be within its scope. As a result, members of parliament were not given a real opportunity to present a well-prepared, reasoned disagreement with the bill. When one party has a strong majority in the Lok Sabha, the need to afford everyone else the opportunity to present their best criticisms is particularly pressing. The failure to do so undermines the parliament’s commitment to open and inclusive decision-making processes. It further denies the majority’s own position the opportunity of being tested and sharpened by competition with opposing ideas.

A final issue of significance, in relation to the first class of questions about Aadhaar, is the government’s  persistence in disregarding judicial orders that Aadhaar cannot be made mandatory. Since January 2017, Aadhaar cards have been made mandatory for at least 22 different schemes. The government has even gone as far as to revive the very measures in relation to which these judicial orders were passed. In September 2016, the Supreme Court had issued a stay against a measure that would link scholarships for higher education to the Aadhaar card. One among the slew of schemes notified since January is a notification of 16 February 2017 that makes Aadhaar mandatory for the very same scholarships.
The government’s single-mindedness in making Aadhaar mandatory also extends to disregarding the terms of laws it has itself passed. Section 55 of the Aadhaar Act requires that regulations made under the Aadhaar Act be laid before both houses of Parliament for a period of 30 days, which may comprise more than one session. The Unique Identification Authority of India (UIDAI)—the authority responsible for issuing and authenticating Aadhaar numbers—notified five regulations concerning enrolment, authenticating, and the security of Aadhaar in September 2016. These regulations were placed before the parliament on the last day of the 2016 winter session. All five are yet to satisfy the 30-day requirement of Section 55.

Arguably, the provision facilitating the government’s efforts to make Aadhaar mandatory is Regulation 12 of the Aadhaar (Enrolment and Update) Regulations, 2016. It provides that any government department or agency that “requires” a potential beneficiary to have an Aadhaar number to avail “any subsidy, benefit or service” shall “ensure enrolment.” In doing so, the regulations, which were framed and notified by the government in exercise of a power given to it by the parliament under the act, appear to be exceeding their remit. Section 7 of the Aadhaar Act—which allows the government to introduce schemes that require an Aadhaar card—sets out that if an otherwise entitled beneficiary of a scheme does not have an Aadhaar card, an alternative identity proof would suffice.
The second class of questions that the petitions pending before the court  have raised relates to questions of whether, and how far, the Aadhaar programme affects our constitutional rights. These legal criticisms centre mainly on the right to privacy and the disproportionate degree of interference with it because of Aadhaar’s data collection, retention and aggregation policies.
Aadhaar’s capacity to serve as an unchecked instrument of mass and secret surveillance is evident from three circumstances. First, there is the function creep that has characterised its rollout—the ever expanding list of uses that Aadhaar numbers are being put to now includes tracking tax compliance. Second, there is the admitted reality that the government will be able to combine Aadhaar database with other government databases. Finally, there is the statutory license for law enforcement agencies to access its contents. Typically, authorities would need to show good cause before treating its citizens as suspected criminals and interfering with their rights. Aadhaar, by enabling indiscriminate surveillance, normalises that exception—effectively making the state’s capacity to treat its citizens as suspects an acceptable, even routine practice. As a result, it is susceptible to several points of criticism that are applicable to surveillance systems not overseen by a neutral body: it does not limit the persons under surveillance; it does not define the period or purpose of surveillance; and it does not notify the subjects of the database of the surveillance at all.

The special character of privacy harms is also worth noting: unlike a ban that can be lifted or a piece of land that can be returned to its rightful owner, once our data is collected and collated into a centralised government database, the harm is done and  it is done irreversibly. So, the longer we must wait for the Supreme Court’s verdict on the Aadhaar programme, the more likely it is that it would be too late to make a difference. Five judges of the Supreme Court—a constitution bench—had noted the “urgency” in hearing this matter on 15 October 2015. But a bench of three others, including the Chief Justice of India JS Khehar, denied a request for an urgent hearing on 5 January, and on 27 March, when the request was made again in the wake of amendments to the Finance Bill, 2017. The matter is next listed for 10 April.

The Finance Bill, 2017 has introduced an additional route for the erosion of democratic rights. The failure to properly file tax returns is a criminal offence. So, tax-paying Indians now face a choice between obtaining an Aadhaar card to comply or being ascribed the status of a criminal. This is not new. Similar choices—between doing without employment or elementary education on one hand, and obtaining an Aadhaar card on the other—have previously been offered to Indian citizens.
In defence of the move to make Aadhaar mandatory for the filing of tax returns, the government proffers the argument that it would reduce tax evasion. If this is true, its position would amount to the unconscionable one of privileging expedience in the pursuit of its interests—presumably law enforcement in this instance—over respecting the fundamental freedoms that democracies themselves are constructed to preserve. Every arm of the Indian state exists at the pleasure of, and in service to Indian citizens. The Aadhaar programme suggests that the government is losing sight of this fact.


Ujwala Uppaluri is a graduate of the National University of Juridical Sciences and Harvard Law School. Views are purely personal.