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, May 2, 2017

11211 - Making a mockery of the Supreme Court order on Aadhaar - Rediff


April 28, 2017 10:30 IST


'The attempt to make Aadhaar mandatory has now emerged as an act of bullying by government agencies, turning citizens into subjects by making fundamental rights conditional on biometric identification,' says Gopal Krishna.

Illustration: Dominic Xavier/
Rediff.com


Just a day before the Supreme Court lambasted the Centre for making Aadhaar compulsory for availing government services, Dr Sajjan Singh, assistant registrar (evaluation) at Jawaharlal Nehru University, issued a circular bearing the subject line, 'Inscription of Unique ID/Aadhaar Number and photograph in marksheets and degree certificates'.

Referring to a University Grants Commission letter in this regard, the circular, inter alia, said:
'Aadhaar number has been made mandatory to inscribe in the mark-sheets and degree certificates in respect of the Indian national students and Unique ID for foreign national students to be generated by the Admission-II Section (sic).'

It also said, 'Aadhaar number has been made a mandatory column in the semester registration and admission folio.'

This is tantamount to contempt of the Supreme Court which has very categorically stated that Aadhaar cannot be made compulsory and it is only an optional requirement.
It must be noted that whenever circulars and letters of central and state government agencies have been challenged or contested, they were always withdrawn.

In 2016, when a UGC circular (external link) making Aadhaar number mandatory for disbursement of all government subsidies/scholarships/fellowships which are to be disbursed directly into the beneficiaries account was challenged, a clarification was issued by the Union ministry of human resource development.

In the clarification (external link) issued on September 14, 2016, the HRD minister made it clear that 'any student who have (sic) applied or wishing to apply for scholarship/fellowship shall not be denied benefit thereof due to non-availability of Aadhaar no./card.'

The current JNU circular is based on two UGC communications dated March 21 and July 26, 2016, with the latter stating, 'the bank account number seeded with Aadhaar should be mentioned on the portal.'

Notably, both these communications were issued during the period in which the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, was not in force. It came into force after its notification in the Gazette of India on September 12, 2016.

Therefore, the circular is illegal and is in violation of the Supreme Court's order.

Moreover, nowhere does the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, provides for and authorises 'seeding' of UID/Aadhaar numbers in databases.

The Act permits it only for two uses:
1. Authentication, which means that biometric or demographic data can be sent to the UID's CIDR (Central Identities Data Repository) to return a 'yes/no' reply to the question whether you are who you say you are.
2. e-Know Your Customer. This does something they said they would never do, viz, give the data -- except core biometric data, but they have no means of stopping any agency from collecting and keeping biometrics when it is given for authentication -- to an authorised service agency.

Section 8(2) (b) of the Act categorically states that an agency requesting authentication 'ensure(s) that the identity information of an individual is only used for submission' to the CIDR of 12-digit biometric Unique Identification/Aadhaar numbers 'for authentication'. It does not authorise anyone to hold onto the number.

Therefore, seeding the UID/Aadhaar number, as required by the UGC or JNU, is itself beyond the law.

When it comes to complying with the Supreme Court's order making Aadhaar optional, all government bodies should learn from the Election Commission.

The EC revised its order dated February 27, 2015, on August 13, 2015, following the court's order making UID/Aadhaar optional. Its revised order read: 'All further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently under NERPAP (National Electoral Roll Purification and Authentication Programme) shall be suspended with immediate effect till further directions from the Commission. In other words, henceforth no more collection of Aadhaar Numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP.'

This revised EC order is a model order. It demonstrates how to comply with the court's order in letter and spirit.

All central, state, public and private agencies which are implementing UID/Aadhaar related schemes and systems are under a legal obligation to issue similar orders.

In a related case, the Supreme Court (in UIDAI v. Central Bureau of Investigation) passed an order in 2014 which said, 'More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled.'


'All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this court forthwith.'

Last week, when the Supreme Court bench headed by Justice A K Sikri asked the attorney general as to how the government can compel anyone to get Aadhaar when there are interim orders of the Constitution Bench, what the AG said in his reply was something which was already stated by Union Minister Ravi Shankar Prasad on April 10 in the Rajya Sabha.

'There is no stay by the Supreme Court,' he said. 'We are being governed by a mandate of the Aadhaar Act passed by the Parliament,' adding, 'I am very clear in my understanding of law that if the Parliament enacts a law and unless the court stays the operation of that law, this law will hold the field and that is what that it holding the field.'

He referred to interim orders of the Supreme Court saying they were passed in 2015 and the Aadhaar Act became effective in 2016, assented by the President.

He took the position that 'an interim order is only for the purposes of interim arrangement till the Parliament structures it. It is not a judgment. It has been referred to a nine-judge or a seven-judge bench. Maybe, this law will also be considered.'
Notably, the Aadhaar Act became effective after it was notified on September 12, 2016, through the Gazette of India.

It is germane to observe that the minister feigned ignorance about the order of the division bench of the Supreme Court dated September 14, 2016, wherein the court reiterated the Constitution Bench's order dated October 15, 2015, which read: 'We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this court commencing from September 23, 2013. We will also make it clear that the Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this court one way or the other.'

While making his submission, the attorney general too seemed to suffer from selective amnesia regarding the Supreme Court's 2016 order, passed after two days of the notification of the Aadhaar Act.

It is an established Constitutional norm that the last order of the Supreme Court prevails over other orders and enacted laws.
As has been the case with the minister, the attorney general referred to an irrelevant Supreme Court order dated February 6, 2017, in Lokniti Foundation v. Union of India.

In fact, in a counter affidavit submitted in the court, the attorney general stated that biometric UID/Aadhaar is voluntary.

In this submission, which has been reproduced in the order of the division bench, it was stated that 'currently, Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection.'

In its petition, the Lokniti Foundation had prayed that 'the Aadhar card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100 per cent verification of mobile phone,' but pursuant to the attorney general's submission, it is apparent that the bench decided to adhere to the Constitution Bench's order that keeps Aadhaar voluntary.

Quoting this very order out of context, the minister misinformed the Rajya Sabha that 'there is the system of Aadhaar-enabled verification for SIM card for the user. I have got the copy of the order. The Supreme Court has approved it as a very good system which has been incorporated (sic).'

Notably, drawing on the same misrepresentation, the department of telecommunications under him has issued a circular on March 23, making Aadhaar mandatory 'regarding 100 per cent e-KYC-based re-verification of all existing subscribers' in order to implement 'hon'ble Supreme Court orders.'

It is evident that the minister and the attorney general will have us believe that the two-judge division bench's order will prevail over the five-Judge Constitution Bench's order.

The minister's exercise in misrepresentation was exposed by Congress leader Jairam Ramesh in the Rajya Sabha when he pointed out that the minister 'did not mention that there was a Supreme Court order after the Act was passed on September 14, 2016.'

Ramesh underlined that 'he quotes selectively from the 2015 Supreme Court orders. Nowhere in those orders does the Supreme Court say that they are contingent on Parliament passing an Act.'

Hence, the Supreme Court orders make it clear that Aadhaar remains voluntary.

Moreover, four years ago, Justice A K Sikri, then the chief justice of the Punjab and Haryana high court, had heard a case related to biometric UID/Aadhaar and passed an order wherein he had noted that the petition challenging mandatory requirement of Aadhaar 'raises a pure question of law.'
In its order, the bench headed by Justice Sikri observed, 'In this writ petition, the petitioner has challenged the vires of notification issued by the Union of India for making it compulsory to have UID cards.'

But since the executive order of the Union territory of Chandigarh was withdrawn, the case was disposed of in 2013.
In this way, the attempt to make Aadhaar mandatory, which has now emerged as an act of bullying by the government agencies, and turning citizens into subjects by making fundamental rights conditional on biometric identification was stopped in the tracks.

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Gopal Krishna