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.


Sunday, April 30, 2017

11191 - Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – III) - Legally India


By CCG NLU Delhi

In the on-going case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’), the petitioners concluded their arguments today. Our coverage of the arguments made over the last two days can be found here and here.

Today, the petitioners’ counsel elaborated on the concept of informational self-determination, as propounded by the German Federal Constitutional Court in the landmark Census decision of 1983.[1] Relying on three scholarly pieces[2], he explained that informational self-determination stemmed from the fundamental rights of human dignity and personal liberty. Collectively, these two rights formed the constitutional right to personality under the German legal framework. Informational self-determination was therefore not just a necessary condition for the free development of one’s personality, but also an essential element of a democratic society. He argued that irrespective of whether this was a constitutional value under the Indian framework, it was a legitimate value and concern for the petitioners before the Court.

The petitioners, and others who object to the Aadhaar project must have the right to informational self-determination to not give their personal information to private entities empanelled by the Government. The counsel argued that UIDAI’s enrolment process was through a network of private entities and reiterated that more than 34,000 had been blacklisted for various reasons. This, in his view established the lack of control exercised by the government during the enrolment process. Further, he relied on UIDAI’s Handbook for Registrars[3] to show that even registrars (who may be state governments, or other public or private entities) are at liberty to retain biometrics and use them for other purposes. In his view, this represented a complete destruction of personal autonomy. He argued that the IT Act could not compel him to part with his biometrics under such circumstances.

The second main ground advanced by the petitioners’ counsel was ‘compelled speech’ as a violation of Article 19(1)(a). He distinguished giving demographic information to government authorities for a singular, defined purpose from information collection under Aadhaar. As per him, the state could not compel an individual to provide fingerprints and iris scans to private third parties. He cited Bijoe Emanuel v. State of Kerala (1986) 3 SCC 615 in support of this contention.

On proportionality, it was argued that the number of PAN cards for individuals (as per the Central Government’s figures) was 29 crore. When seen against the government’s figures for duplicates, this would only amount to 0.4% of all PANs. On the other hand, the intrusion caused by enrolling for Aadhaar would be tremendous.

The petitioner’s counsel reiterated his argument on the legislature lacking competence to enact Section 139AA. He stated that the doctrine of eminent domain was limited to land and could not be extended to one’s body, except under narrowly tailored circumstances under legitimate circumstances. 

Therefore, the legislature lacked competence under Entry 82 of List I or any residuary power to enact a statute compelling parting with such intimate information.

While summing up, he also reiterated the argument on voluntariness, relying on Lord Atkin’s dissent in Liversidge v. Anderson (1942 AC 206) to emphasise that voluntary could never be interpreted as mandatory.

Finally, he urged the Court to strike down Section 139AA of the IT Act, or alternatively, read down the mandatory nature of the provision to make it voluntary. He also suggested that if the bench thought issues such as informational self-determination and compelled speech are too intertwined or if it appeared not appropriate to decide this matter independently, they may be referred to a larger bench. However, considering the irreversible consequences created by the 1st July deadline, he pressed for interim relief to stay the application of the Act or restrain the government from taking coercive steps for non-compliance. He added that protecting against invalidating one’s PAN would also be essential.

A third petition, which was subsequently filed, was also argued in Court today. The counsel for this petitioner (Mr. Dashrathbhai Patel) contended that Section 139AA was a ‘confused, self-defeating and self-destructive’ provision. He pointed out that the Explanation to the section assigned meanings to several terms as per their definitions under the Aadhaar Act. In such a circumstance, borrowing the definition of ‘enrollemt’ from the Aadhaar Act (where it was a voluntary exercise), made it impermissible to make it mandatory under the IT Act. Secondly, it was contended that the definition of demographic information under the Aadhaar Act specifically prohibited collecting information related to income. By linking PAN with Aadhaar, Section 139AA was facilitating the convergence of income information, in direct contradiction with the Aadhaar Act. He argued that what was impermissible directly could not be permissible in an indirect manner.

With this, the petitioners concluded their arguments before the Supreme Court today. The Central Government will respond on 2nd May (Tuesday).

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Disclosure: The author assisted the petitioners’ (Maj. Gen. Vombatkere and Mr. Bezwada Wilson) lawyers for today’s arguments.

[1] BVerfGE 65, 1.
[2] Bernd R. Beier, Genetic Testing and the Right of Self- Determination: The Experience in the Federal Republic of Germany 16(3) Hofstra Law Review 601-614 (1988); and Susanne Baer, Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism 59(4) University of Toronto Law Journal 417-468 (2009); Gerrit Hornung and Christoph Schnabel, Data protection in Germany I: The population census decision and the right to informational self-determination 25(1) Computer Law & Security Report 84–88 (December 2009).
[3] p. 16

Author: kritikaccg