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


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.


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Friday, June 16, 2017

11530 - The Aadhaar/PAN Judgment





In a judgment delivered today, the Supreme Court upheld the constitutional validity of S. 139AA of the Income Tax Act, which makes quoting one’s Aadhaar number mandatory while filing income tax returns. The Court also stayed S. 139AA(2), which provided for the cancellation of PAN cards for failure to comply. In view of the multiple Aadhaar cases pending before the Supreme Court, it is important to clarify what precisely the Court decided, what it didn’t decide, and what it left open (a summary of the arguments can be read here (Part I), here (Part II), and here (Part III)).

What the Court didn’t decide
Recall that on August 11, 2015, a three judge bench of the Supreme Court had referred the constitutional challenge to Aadhaar (then an executive scheme) to a larger bench, on the basis that the constitutional status of the right to privacy was uncertain, and needed to be authoritatively decided. That larger bench has not yet been constituted. Consequently, at the beginning of the Aadhaar/PAN arguments, the Court wanted to “tag” this case to the pending challenge before the (still-to-be-constituted) larger bench. The Petitioners then informed the Court that they would make their arguments without relying on the right to privacy. The Court agreed to this.
During the course of arguments, Mr Shyam Divan advanced arguments based on the right to bodily integrity, dignity, and informational self-determination, under Article 21 of the Constitution. In its judgment, however, the Court held that all these arguments were facets of the right to privacy, and could not be decided here. Consequently – and the Court was very clear about this – no argument under Article 21 would be decided by it, whether it was framed as an argument from dignity, or from informational self-determination. This means that the constitutional validity of Aadhaar on the ground of Article 21 has not been decided one way or another by the Court (the Court has not even expressed an opinion), and all arguments on that count remain open.
That said, it needs to be pointed out that the Court’s lumping of all Article 21 arguments into an omnibus “right to privacy” is far from satisfactory. For example, in paragraph 71 of its judgment, the Court cites an American Supreme Court judgment (invoked by the Respondents) to hold that the right to informational self-determination is an aspect of the right to privacy, and so need not be considered by it. The Court does not cite – or engage with – the material placed on record by the Petitioners which specifically demonstrated that the right to informational self-determination was different from the right to privacy, in terms of its origins (in German constitutionalism) and development. As I shall show subsequently, this is a problem that afflicts much of the Court’s opinion.
What the Court did Decide: Process
Two arguments were made before the Court on the nature of the law itself. The first was that the law could not have been passed in the teeth of Supreme Court orders specifying that Aadhaar could not be made mandatory, without taking away the basis of those orders (which S. 139AA didn’t do – see Part I for details). To this, the Court said that those earlier orders had been passed when Aadhaar was still only an executive scheme, and it was open to the legislature to pass a law making Aadhaar compulsory. The Court’s decision here would imply that in future challenges to other laws making Aadhaar mandatory, its prior orders would not be an impediment; however, insofar as Aadhaar is sought to be made mandatory for something through an executive order without a law, those earlier orders would continue to hold the field (paragraph 94).
It was also argued that the process of enrolling and obtaining an Aadhaar number, as set out under the Aadhaar Act, was a voluntary process. S. 139AA of the Income Tax Act, however, made quoting an Aadhaar number for filing IT returns mandatory, and thus indirectly forced taxpayers to enrol for an Aadhaar number, even though the Aadhaar Act explicitly stated that Aadhaar was an entitlement, and not an obligation. To this, the Court stated that the Income Tax Act and the Aadhaar Act operated in different fields, and that the Aadhaar Act was not the “mother Act.” (paragraph 92) I do not propose to deal with this reasoning in detail, since the argument has been set out at some length in Part I (link above), and readers can make up their own minds whether the Court’s answer was satisfactory.
What the Court did Decide: Article 14
It was argued by the Petitioners that S. 139AA contravened Article 14 in two ways: first, by drawing a distinction between individuals and non-individuals, and requiring the former to acquire an Aadhaar number. If – as the State claimed – its goal was to eliminate duplicate PANs and black money, then why were individuals only being singled out through the means of compulsory Aadhaar? The Court responded by stating that it was the State’s prerogative to deal with problems such as duplicate PANs and black money in an incremental or piecemeal fashion, and to make a start with targeting individuals.
It was also argued, however, that the introduction of Aadhaar would not actually solve the problem of duplicate PANs, because there was evidence to show the existence of multiple Aadhaar numbers themselves, as well as the well-documented ability to fake both biometric details and iris scans. Consequently, there was no “rational nexus” under Article 14.
It is at this stage that the judgment becomes highly problematic, because the Court appears to simply repeat the assertions of the State, without adverting to or engaging with the objections raised by the Petitioners. For example:
Respondents have argued that Aadhaar will ensure that there is no duplication of identity as bio-metric will not allow that and, therefore, it may check the growth of shell companies as well.” (paragraph 99)
“By making use of the technology, a method is sought to be devised, in the form of Aadhaar, whereby identity of a person is ascertained in a flawless manner without giving any leeway to any individual to resort to dubious practices of showing multiple identities or fictitious identities. That is why it is given the nomenclature ‘unique identity’. (paragraph 118)
“However, for various reasons including corruption, actual benefit does not reach those who are supposed to receive such benefits. One of the main reasons is failure to identify these persons for lack of means by which identity could be established of such genuine needy class. Resultantly, lots of ghosts and duplicate beneficiaries are able to take undue and impermissible benefits. A former Prime Minister of this country has gone to record to say that out of one rupee spent by the Government for welfare of the downtrodden, only 15 paisa thereof actually reaches those persons for whom it is meant. It cannot be doubted that with UID/Aadhaar much of the malaise in this field can be taken care of.” (para 118)
“To the same effect is the recommendation of the Committee headed by Chairman, CBDT on measures to tackle black money in India and abroad which also discusses the problem of money-laundering being done to evade taxes under the garb of shell companies by the persons who hold multiple bogus PAN numbers under different names or variations of their names. That can be possible if one uniform proof of identity, namely, UID is adopted. It may go a long way to check and minimise the said malaise.” (paragraph 118(ii))
“Thirdly, Aadhaar or UID, which has come to be known as most advanced and sophisticated infrastructure, may facilitate law enforcement agencies to take care of problem of terrorism to some extent and may also be helpful in checking the crime and also help investigating agencies in cracking the crimes. No doubt, going by aforesaid, and may be some other similarly valid considerations, it is the intention of the Government to give phillip (sic) to Aadhaar movement and encourage the people of this country to enroll themselves under the Aadhaar scheme.” (paragraph 119)
“As of today, that is the only method available i.e. by seeding of existing PAN with Aadhaar. It is perceived as the best method, and the only robust method of de-duplication of PAN database. It is claimed by the respondents that the instance of duplicate Aadhaar is almost non-existent. It is also claimed that seeding of PAN with Aadhaar may contribute to widening of the tax case as well, by checking the tax evasions and bringing in to tax hold those persons who are liable to pay tax but deliberately avoid doing so.” (para 119)
In each of these paragraphs, the Court effectively echoes the State’s claim, assumes it to be true, and does not engage with the detailed objections raised by the Petitioners (see Parts I and III). All the talking points are here: how biometric identification is the “best method”, how unique identity is actually “unique”, how terrorism will be tackled through Aadhaar, how “ghosts” will be removed, and so on (note that every one of these points were opposed in court). It is telling that, at various points, the Court even uses language such as “it is claimed” and “Respondents have claimed that”, but doesn’t even trouble to subject those claims to any kind of independent scrutiny.
India has an adverserial legal system. An adverserial system presumes the existence of opposing parties, who marshall their respective facts and evidence into legal arguments, and place it before the Court, which acts as a neutral umpire, adjudicating the rival claims. When there are competing claims, especially competing factual claims, the Court decides by applying legal techniques such as burdens and standards of proof, or taking the assistance of amici curiae who are domain experts. What the Court is not supposed to do is to act like a rubber stamp, simply accepting the State’s assertions as true without engaging with the counter-arguments, or subjecting them to independent scrutiny. However, “rubber stamp” is the only way to describe the Court’s recitation of one side’s arguments, and sidelining (to the point of ignoring) the other.
What the Court did not decide: the strange case of the vanishing Article 19(1)(g)
The Court records Mr Datar’s argument that the invalidation of PAN cards affects an individual’s right to do business, and violates Article 19(1)(g) of the Constitution. The Court also records – and agrees – with his argument that for an infringement of Article 19(1)(g) to be justified under Article 19(6), the test of proportionality is to be applied. However, after recording this, and after waxing eloquent about the wonders of biometric identification, the Court returns no finding on the issue of proportionality. The discussion on Article 19(1)(g) begins at paragraph 106, and ends at paragraph 124, where the Court notes:
“Therefore, it cannot be denied that there has to be some provision stating the consequences for not complying with the requirements of Section 139AA of the Act, more particularly when these requirements are found as not violative of Articles 14 and 19 (of course, eschewing the discussion on Article 21 herein for the reasons already given). If Aadhar number is not given, the aforesaid exercise may not be possible.”
However, there is absolutely no analysis on whether making Aadhaar compulsory, on pain of cancellation of PAN cards, is proportionate in relation to the stated goal of deduplicaton. This is a crucial omission, because the proportionality test is a detailed and complex four-part test, which requires the State to show that its proposed act infringes upon a right only to the minimal extent necessary to achieve the goal, as well as an overall balancing exercise. It is here that a number of arguments would have become extremely salient, including statistics on the percentage of duplicate PANs (0.4%) which the Court dismisses at an earlier part of the judgment, the existence of multiple Aadhaars (which the Court never engages with), and so on – all of this would have been extremely important in determining whether S. 139AA was a proportionate interference with the right under Article 19(1)(g). (Notably, the only response of the Attorney-General of India to the 19(1)(g) argument was “who cares about Article 19(1)(g) these days?)
The omission is all the more glaring because the proportionality test was introduced by the author of this judgment – Justice Sikri himself – in his judgment in the NEET case. It is truly extraordinary that a judge who introduces a doctrine in one judgment, writing for a Constitution Bench, simply refuses to apply it a few months later when sitting as part of a two-judge bench!
What is even more problematic is the absence of a finding on proportionality. This is reminiscent of the Supreme Court’s judgment in Koushal vs Naz, where the Court’s chosen method of dealing with inconvenient arguments is to set out the submissions, set out the position of law, and then just move on to something else: if you close your eyes and chant “na na na”, long enough, maybe it will go away. A correct application of the four-part proportionality test would have required rigorous scrutiny of the State’s claims on behalf of Aadhaar – but if there is one thing that defines this judgment, it is a complete and utter unwillingness to hold the State to account.
Relief
There is a significant amount of confusion with respect to the relief that the Court does grant – a “partial stay” of S. 139AA(2) (cancellation of PAN) until the main Aadhaar case is decided. The Court states:
“Those who still want to enrol are free to do so. However, those assessees who are not Aadhaar card holders and do not comply with the provision of Section 139(2), their PAN cards be not treated as invalid for the time being. It is only to facilitate other transactions which are mentioned in Rule 114B of the Rules.”
One reading of this passage is that it remains mandatory to provide an Aadhaar number while filing IT returns (after July 1), but if one doesn’t already have an Aadhaar Card, then one’s PAN will not be canceled for failure to comply; however, one’s tax returns shall be invalid, and therefore subject to other penal provisions for not paying tax. On another interpretation, however, S. 139AA(2) provides the punishment for failure to comply with S. 139AA (refusal to provide Aadhaar number for IT returns). The staying of S. 139AA(2) (for those who have no Aadhaar number yet) necessarily implies that there is no penal consequence to follow from violating S. 139AA itself. Over the course of the day, I have heard both views being defended by competent lawyers, implying that at the very least, there is some amount of confusion here.
Conclusion
In its judgment today, the Supreme Court leaves the most crucial issues (Article 21) undecided, and footballs them to the unicorn Constitution Bench that is still to sit after a year and nine months after referral. The Court’s analysis of Article 14 is sketchy, defined by its uncritical reliance upon the State’s claims about Aadhaar (claims that were disputed in Court, and are disputed on a daily basis in the public sphere), and its analysis of Article 19(1)(g) is non-existent.
In a matter where the stakes are this high, this is just not good enough.

(Disclosure: The author assisted the Petitioners in the present case)