Aadhaar

The UIDAI has taken two successive governments in India and the entire world for a ride. It identifies nothing. It is not unique. The entire UID data has never been verified and audited. The UID cannot be used for governance, financial databases or anything. It’s use is the biggest threat to national security since independence. – Anupam Saraph 2018

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 scholarUsha Ramanathandescribes 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

In the Supreme Court, Meenakshi Arora, one of the senior counsel in the case, compared it to living under a general, perpetual, nation-wide criminal warrant.

Had never thought of it that way, but living in the Aadhaar universe is like living in a prison. All of us are treated like criminals with barely any rights or recourse and gatekeepers have absolute power on you and your life.

Announcing the launch of the#BreakAadhaarChainscampaign, culminating with events in multiple cities on 12th Jan. This is the last opportunity to make your voice heard before the Supreme Court hearings start on 17th Jan 2018. In collaboration with @no2uidand@rozi_roti.

UIDAI's security seems to be founded on four time tested pillars of security idiocy

1) Denial

2) Issue fiats and point finger

3) Shoot messenger

4) Bury head in sand.

God Save India

Friday, May 4, 2018

13454 - Aadhaar Hearing: Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision - First Post

Aadhaar Hearing: Attorney General argues that Aadhaar is fundamentally a money bill to which Section 57 is an ancillary provision

News-Analysis Asheeta Regidi May 03, 2018 14:36 PM IST
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On Day 35 of the Aadhaar hearings, advocate Zoheb Hossain concluded his arguments on the issue of the furtherance of socio-economic rights via Aadhaar. He also discussed the issues of disclosure of information in the interest of national security, the filing of complaints by the Unique Identification Authority of India (UIDAI) only under the Aadhaar Act, and on the Aadhaar-PAN linkages being applicable to individuals only and not to corporates. 

The Attorney General then continued his arguments on the money bill issue, arguing that Aadhaar was, at its core, a money bill and that Section 57 was just an ancillary provision.

Aadhaar advances socio-economic rights
Advocate Zoheb Hossain continued his arguments on behalf of the UIDAI and the State of Maharashtra, arguing on the issue of advancement of socio-economic rights and their harmonisation with civil and political rights. Aadhaar, he argued, was a project that ensures people’s socio-economic rights. He further pointed to the Justice Wadhwa Committee Report on the public distribution system.

Next, he pointed to the case of D.K. Trivedi vs State of Gujarat, in which the Supreme Court observed that the validity of a statute conferring discretionary powers on the executive or an administrative authority, could not be judged on the assumption that the said authority would act in an arbitrary manner in the exercise of that discretion.

He further made reference to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), and the reference made to them in previous judgments of the Supreme Court like in Unni Krishnan vs State of Andhra Pradesh. He argued, based on the ICCPR, that all human rights are equally important, indivisible and interconnected. Socio-economic rights are thus as important as civil and political rights.

PIL on the right to privacy?
In order to judge the proportionality of restrictions imposed on privacy, he argued that their reasonableness would have to be considered from the perspective of the general public and not that of an individual. At this juncture, he also questioned how a public interest litigation could be filed for the violation of the right to privacy, when privacy is essentially a personal right, and none of the petitioners were alleging a violation of their privacy.

In furtherance of this, he cited a US congressional report on the development of the Social Security Number (SSN), which describes it as a quasi-universal personal identification number, used for a variety of purposes such as identifying convicted criminals, obtaining a loan or insurance, etc. He argued that individuals in the US could be denied benefits if they fail to produce their SSN. As an example, he cited a US case where the firing of an employee for failing to produce her SSN was not seen as a violation of her privacy.

Disclosure of information for national security
Next, arguing that there were adequate safeguards for records under the Aadhaar Act, he cited Section 33(2) of the Aadhaar Act, which allows the disclosure of information in the interest of national security. He pointed to the safeguard under the proviso of this section, which requires every such direction under it to be reviewed by an Oversight Committee. He argued that the Aadhaar Act prescribes more oversight than even that prescribed under the People's Union for Civil Liberties (PUCL) case on telephone tapping. On the issue of national security, he further argued that a party could not expect strict adherence to the principles of natural justice during times of emergency.

The Attorney General argued that Aadhaar is at its core a money bill. 

Filing of complaints by the UIDAI only
He further argued on the challenge to Section 47 of the Aadhaar Act, which prevents the people from filing a case under the Act. He argued that since the person could file a complaint before the UIDAI through its grievance redressal system, he wouldn’t be left remedy-less. He argued that it was best left to the UIDAI to file complaints since they have a better understanding of the highly technical nature of the Aadhaar system. He also pointed to the judgment of the Supreme Court in State of NCT v. Delhi,, where a similar provision under the Mines and Minerals (Development and Regulation) Act was discussed.
Further, he argued that the UIDAI may authorize a person to file a complaint if they felt that it was genuine since there was no bar to do this under the Aadhaar Act. Additionally, there were remedies available under the Information Technology Act, such as for identity theft and the violation of privacy, for actors outside the CIDR. For the CIDR, there were adequate provisions under the Aadhaar Act.

Promoting redistributive justice via Aadhaar-PAN
Next, he argued that the purpose of the Aadhaar Act as well as Section 139AA of the Income Tax Act on Aadhaar-PAN linking is to promote redistributive justice and ensure substantive equality, along with furthering the dignity of the individual. He argued that the term ‘distribute’ under the Directive Principle of State Policy under Article 39(b) of the Constitution, includes revenue leakage control in furtherance of distributive justice. He also quoted the Puttaswamy judgment, arguing that rights of an individual could be curbed in the interest of prevention of tax evasion, curbing black money and prevention of money laundering.

He further argued that the Aadhaar Act and the Income Tax Act were stand-alone acts, and it cannot be said that the Parliament cannot, in the exercise of its legislative wisdom, make Aadhaar mandatory by way of an amendment. This argument, further, had already been decided by the Supreme Court in the Binoy Viswam case. The objects of the two statutes, he argued, are different, and they could run parallel to each other, with no intersection and thus, no conflict.

Aadhaar-PAN can resolve dummy directors and fake companies
Next, turning to the issue of why only individuals had been asked to link their Aadhaar with PAN, he argued that the rule for equality did not mean that the State has to strike all evils at the same time. Companies and individuals, he argued, were treated differently under the Income Tax Rules.

Further, the linking for individuals will also cure the evils vis-à-vis companies. For instance, under the Companies Act, a person can be a director for only 20 companies at a given time. The linking of Aadhaar with PAN, he argued, would allow the verification of whether a genuine person is the director of the companies. This could thus enable the deduplication of Director Identification Numbers. The genuineness of the companies can also be verified this way. With this, the counsel concluded his arguments.

Aadhaar is at its core a money bill
The Attorney General then commenced his arguments on the issue of money bill. He argued that Aadhaar was, in pith and substance, a money bill, and ancillary provisions in relation to appeal, revision, etc., which are needed to make the Act complete, do not fall outside the ambit of Article 110 of the Constitution (which defines a money bill). He argued that the term ‘targeted delivery of subsidies’ contemplated the expenditure of funds. This expenditure was to the tune of thousands of crores from the Consolidated Fund of India. This, he argued, in itself brought the Aadhaar Act under the ambit of a ‘money bill’ under the Constitution of India.
He argued that even though the law has ancillary provisions, the main aim of the Act was the delivery of services and benefits. He argued that Sections 7, 24 and 25 brought the Aadhaar Act under the ambit of a money bill. Not a single provision, he argued, was unnecessary or unrelated to the main purpose of the Act.

Section 57 is an ancillary provision
The Bench here pointed to Section 57, describing the allowing of body corporates and individuals to use Aadhaar as a concern with the link of the Act to the Consolidated Fund of India. This provision, they stated, did not involve the distribution of benefits and subsidies under the Aadhaar Act. To this, the Attorney General argued that the Section merely allows the existing infrastructure to be used for other purposes so long as the purposes are legitimate. Thus, this was just another ancillary provision. He further argued that the Court could judge the validity of a contract for the use of Aadhaar under this Section only if it was before them for consideration.
He further pointed to Article 110 of the Constitution of India, which defines a money bill and includes clause (g), which allows a money bill to include provisions on matters incidental to any of the matters which are the primary subject of a money bill. When the Bench pointed out that under Article 110, a money bill could ‘only’ involve the matters as listed from clauses (a) to (g), the Attorney General argued that the term ‘only’ implied that the matters listed under these clauses could only be dealt with as a money bill. The Bench, here, remarked that such an interpretation would constitute rewriting the Constitution.
The arguments will continue 3 May.

Sources of arguments include live-tweeting of the case by SFLC.in and Prasanna S, and LiveLaw Reports.
You can read our complete coverage of the Aadhaar Supreme Court case below:

























The author is a lawyer and author specializing in technology laws. She is also a certified information privacy professional.

Updated Date: May 03, 2018 14:36 PM


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