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.


Tuesday, April 11, 2017

11019 - Clarity and facts on the ground - The Hindu


APRIL 10, 2017 00:02 IST

UPDATED: APRIL 10, 2017 10:09 IS


Why it’s essential that the Supreme Court speedily hears the Aadhaar petitions

There are several conflicting accounts of precisely what transpired when senior advocate Shyam Divan made a request late in March for an early hearing of a batch of petitions that question the validity of the unique identification scheme, implemented through the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 — or the Aadhaar Act. The next morning’s newspapers each produced their own versions: in the narration of some, the court made it clear that Aadhaar ought not to be made mandatory for welfare schemes; others reported that the court had also expressly clarified that Aadhaar could, in fact, be imposed in relation to certain state directives.

“Let us take Income Tax returns. Is this a benefit? No, we don’t think so,” the Chief Justice of India, J.S. Khehar, sitting along with Justices D.Y. Chandrachud and S.K. Kaul, said, according to The Indian Express. “You can ask someone to have a bank account on the basis of Aadhaar. That is not a benefit. But if you want to make it mandatory for a poor person in a village to get his meagre pension, that could mean extending a benefit… For benefits, it (Aadhaar) cannot be pressed… for non-benefits, it can be done.”

These statements, regardless of their exact import, understandably raise legitimate concerns. After all, they were made by the CJI, barely a day after the Lok Sabha had passed amendments to the Finance Bill making Aadhaar mandatory for securing a permanent account number (PAN), and consequently for filing income tax returns. But in attempting to comprehend the significance of these remarks, we must be careful not to ascribe any excessive value to them; indeed, there’s practically no utility to be gained in trying to put different news reports together to try to ascertain what the CJI may have really meant. For these statements were just oral ripostes, which don’t bear the force of a judicial order.

Point of no return
What was more telling, however — and ultimately more damaging — about this entire episode was the result: the denial of Mr. Divan’s plea for a speedy inquiry into the validity of Aadhaar. It is now entirely likely that by the time the court gets around to hearing the challenge, the government will render Aadhaar a fait accompli, with its destiny, in this case, having been sealed by successive CJIs who have failed to so much as constitute a bench to hear the petitions. This lapse also highlights a deeper malaise in our judicial structure: where one person, the CJI, as the sole master of the Supreme Court’s roster, decides the composition of benches, and, as a result, wields enormous administrative power over which cases get heard and which cases get placed on a seemingly never-ending back burner.

For close to 19 months, the petitions challenging Aadhaar have been stuck in an administrative logjam. In August 2015, at the bidding of the Union of India, a three-judge bench headed by Justice J. Chelameswar ruled that there was substantial confusion on whether the Constitution guaranteed citizens a right to privacy, and therefore that the case had to be placed before a larger bench, of an appropriate strength to be determined by the CJI. The bench also added (something which the court reiterated again in October that year) that it would be desirable to have the case finally heard at the earliest, having regard to its importance. But, all these months later, with Aadhaar becoming more and more entrenched in the Government’s grand plan, we are no closer to having a bench constituted to decide the legal challenge to the scheme.

Consider the consequences. In a few months’ time, millions more would have enrolled with the Unique Identification Authority of India, submitting their biometric data, with a view to staying clear of the long arm of the country’s punitive laws. Given that there is still no authoritative ruling from the Supreme Court on whether the state’s present acts in extending the use of Aadhaar constitutes a contempt of the court’s previously granted interim orders, it is also quite plausible that the government is far from finished. As a result, when the court finally gets around to listing the petitions before a freshly minted seven-judge Constitution Bench — let’s say sometime in the year 2021 — the damage wrought by Aadhaar will be incapable of being undone. By then, India would have taken an irredeemable step towards becoming a surveillance state, and the question of whether we actually have a constitutionally protected right to privacy would be all but moot.

This failure of the Supreme Court, needless to say, wouldn’t be unique to the Aadhaar challenge. There were a number of false dawns before the court had, on December 16, referred the challenge to the demonetisation policy to a Constitution Bench. Now, several weeks later, given that the court had explicitly refused to grant a stay of the policy, even if a bench is indeed constituted to hear the petitions, it’s unlikely to matter much: for the state has already thrust the policy on us, and its impact is now permanent.

Today, were the court to hear the petitions challenging Aadhaar, it’s no doubt conceivable that, on an examination of the merits, it might conclude that India’s citizens possess no fundamental right to privacy, or that Aadhaar does not infringe on this right in a constitutionally unsustainable manner. Whatever our respective predilections might tell us about such a view, at least we might be able to take heart from the fact that the court would have performed its basic function under India’s democratic structure: of testing legislative and executive acts against the guarantees of the Constitution. What it’s presently doing, though, is indefensible. It is not only rendering academic these significant constitutional questions but, as the lawyer Gautam Bhatia has pointed out, it’s virtually deciding in favour of the government without actually delivering a judgment.

Perils of delays
Delays in constitutional judgment, as K.M. Munshi, a member of the Constituent Assembly, had pointed out in a draft note in 1947, can have deep and perilous consequences on fundamental rights. “It is of the highest importance that the question whether a law is valid or not must be decided at the earliest moment,” he wrote. “Any uncertainty about its validity will lead to great hardships. The object of the fundamental law will be frustrated if people have to serve sentences, pay fines or deny themselves the privileges given by the Constitution for a long time under an invalid law.”

Most constitutional courts around the world are acutely aware of these dangers. Even recently, there are notable examples from other jurisdictions where courts have fast-tracked certain cases with a view to ensuring that the questions they raise aren’t consigned to theory. The U.K. Supreme Court heard in December 2016 and ruled in January this year that British Prime Minister Theresa May must get Parliament’s approval before formally triggering Britain’s exit from the European Union. Also, last month, a South African High Court ruled that the decision by President Jacob Zuma to withdraw from the International Criminal Court was not only premature but was also procedurally flawed. In both these cases, a failure to decide expeditiously would have had irreversible consequences. It was to negate such an impact that the courts made suitable arrangements for a quick hearing. Comparing India’s Supreme Court to other constitutional courts around the world can be a difficult and even tedious exercise. There’s no question that our judiciary is fraught with an overflowing docket. But can there really be any excuse for a failure to rule punctually on live conflicts between the state and the citizenry?

The summer proceedings
In response, it may well be pointed out that the Chief Justice has established three Constitution Benches that are scheduled to function during the court’s summer vacation. But this programming is a red herring, unless cases are prioritised for hearing in a transparent and logical manner. Thus far, the issues that appear to be accorded precedence over Aadhaar include the validity of triple talaq and polygamy as practised among Muslims, a cause taken up by the court virtually on its own motion, and the legality of WhatsApp’s privacy policy, which the court will begin hearing on April 18. This isn’t to suggest that these cases aren’t important. But given that they don’t encompass disputes that pit the individual directly against the state, the consequences that they are likely to have, from a standpoint of public and constitutional law, aren’t as instantly significant as the issues that the Aadhaar challenge presents. 

That these cases are being prioritised over Aadhaar is therefore curious, at its best, and is, at its worst, seriously damaging to any remaining notions that we might have of the Supreme Court representing a bulwark of freedom and democracy.

Suhrith Parthasarathy is an advocate practising at the Madras High Court