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 18, 2017

11067 - Do Supreme Court orders on Aadhaar still matter? - Legally India

Do Supreme Court orders on Aadhaar still matter?

by sflc
by Prasanna S | April 17, 2017

In response to questions from the opposition members in the Rajya Sabha on 10th April, Union Minister for Law & Justice, Ravi Shankar Prasad categorically stated that the Aadhaar Act passed in March 2016 and brought in force in September 2016 effectively supersedes the Supreme Court’s interim orders passed between 2013 and 2015. The Supreme Court orders, the latest of which was passed on 15thOctober, 2015, repeatedly restrained the Central and State Governments, in no uncertain terms, from making Aadhaar a mandatory precondition for any purpose whatsoever, until the constitutional challenge to project, pending before the Supreme Court since 2012, is decided one way or the other. In support of this stand, he stated that the Parliament is the sovereign body insofar as law making is concerned and that there has been a new law that has been passed which has not yet been stayed by any court and that the supreme court’s earlier orders may not operate as a stay on a validly made law i.e. the 2016 Aadhaar Act. He further stated that the 2015 orders of the Supreme Court were made in the context where there was no law regulating the project and with the passage of the Aadhaar Act, that defect stands removed and Court’s orders therefore are no longer necessary to be followed. This is the first time that we know that the government has taken such a stand in Parliament. It is interesting to note that this is at variance with Government’s earlier statements on the issues such as Prasad’s own statement on the issue, where he said the Government will approach the Supreme Court for vacating its orders and that of his junior Minister in the Information Technology Ministry when he implied that the Government was interpreting Section 7 of the Aadhaar act in consonance with the Supreme Court orders.
In my humble but considered view, this stand by the Government is legally untenable and seems to be as a result of it appreciating the full import of neither the orders of the court, nor the express language of the Aadhaar Act.

The primary basis of a court passing an interim order is the pending dispute before it. As long as such a dispute is still pending, the orders would ordinarily hold force. In this case, the petitions are still technically pending before the Constitution Bench of the Court. Even if the Government thinks they have become infructuous, they ought to move an application and persuade the court to declare them to be so. The Government has not moved the Court for such a declaration or dismissal of the petitions or vacation of the orders citing the new law. It must be pointed out that this case is different from instances like the Shah Bano story in which a final judgment of the Court was sought to be undone by an Act of Parliament. In this Aadhaar case, the Central Government is still before the court and is subject to the jurisdiction and specific restraint imposed by the court. If any authority wants to exercise power, (even newly conferred power by legislation) contrary to such restraint, it cannot do so without the permission of the Court.
I am not suggesting that a parliamentary legislation cannot in any case override interim directions of the Supreme Court. For that to happen though, there ought to be an express statement in the objects of the Act as introduced in Parliament or elsewhere during the legislation process that this seeks to undo interim directions of the court; or an implied overruling where it becomes virtually impossible for a person to comply with the later legislation as well as the orders of the Court. In this case though, the Act has neither of these ingredients. While Section 7 confers power on various authorities to insist on Aadhaar enrolment as a mandatory pre-requisite, it does not impose a duty to do so. The authorities therefore can comply with the Act without being in contravention of the orders of the Court, by simply not exercising the powers under Section 7. If any authority is desirous of exercising the newly found power, they can do so – but with the leave of the Court.
Moreover, when the interim orders were passed, the absence of law was not the only issue in consideration. In fact, the Central Government had argued that the Appropriation Act at the time read with Allocation of Business Rules under Article 77 provided the legislative basis for the project and that Information Technology Act (IT Act) and the Rules under IT Act have enough statutory safeguards for data protection; and therefore there was no legislative vacuum under which the project was operating. It is perhaps after making note of this stand of the Government that the first interim order passed in 23rd September 2013, stated that “when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under the law.” In that background, it cannot be stated that this new Act removed any “defect” that was pointed out by the court or which formed the basis of the court’s orders.
The argument that the 2016 Act did not exist before October 2015 and that there is no principle of automatic stay of an Act of parliament that did not exist at the time of passing the order and therefore, October 2015 order would not prohibit authorities from exercising power under Section 7 of the newly enacted Act, seems to be appealing on the face of it. However, a plain unqualified application of that principle leads to absurd results. Assume for one moment, that the 2015 Act did indeed stay the operation of a law – lets call it Act-1. Say Parliament passes another identical Act and lets call it Act-2. Can the Government continue to implement and enforce Act-2 on the ground that there is no automatic stay? Why have constitutional courts at all if legislatures can simply reiterate their earlier position and escape orders of such a court? It must be kept in mind that these interim orders have been passed by a court acting in its capacity as a constitutional court under Article 32 of the Constitution in attempting to provide interim protection to constitutional rights which it prima facie felt were in danger because of the project. The government’s stand that by passing a legislation and doing nothing more, they could effectively overturn the directions, which were passed after the court, before whom the government is still a party, clearly therefore is in dissonance with the constitutional scheme, in which Parliament is not unqualifiedly supreme, but subject to constitutional limitations.
(An earlier version of this article by the same author appeared in : https://aamjanata.com/unlawful-make-aadhaar-mandatory/)
[This is a guest post by Prasanna S, a lawyer who practises in Delhi and has acted for some of the petitioners in the Aadhaar case before the Supreme Court]

Author: Prasanna S

©Republished under Creative Commons Attribution-ShareAlike 3.0 Unported (CC BY-SA 3.0) Licence