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

Sunday, June 10, 2018

13664 - DNA and the Indian system - The Statesman


The admissibility of DNA evidence in courts remains a grey area, writes Ashok Bhan.

Ashok Bhan | June 7, 2018 1:47 am

                                       DNA Test.

The Code of Criminal Procedure and the Indian Evidence Act were enacted at a time when modern scientific advancement and DNA tests were not even in the contemplation of Parliament or legislature. Worldwide, it has been proven that the results of DNA test, if conducted in conformity with modern and latest protocol on the subject, are scientifically accurate.

There is an urgent need to incorporate some provisions in the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1973, to manage science and technology issues. Due to lack of such provision, investigating officers face trouble in collecting evidence that involves modern mechanism to prove the accused guilty.

Section 53 of the Code of Criminal Procedure, 1973, authorises a police officer to get the assistance of a medical practitioner in good faith for the purpose of the investigation. But, it does not enable a complainant to collect blood, semen etc for bringing criminal charges against the accused. The CrPC (Amendment) Act, 2005, has brought two new sections which authorise the investigating officer to collect DNA sample from the body of the accused and the victim with the help of a medical practitioner.
It’s use as evidence in criminal investigations has grown in recent times in Indian legal system. DNA testing has helped law enforcement to identify criminals and solve difficult crimes. On the other hand, DNA-supported evidence helps in proving that many convicted people are actually innocent.

The introduction of DNA technology is being perceived to pose serious challenge to some legal and functional rights of an individual such as ‘Right to privacy’ and ‘Right against Self-incrimination’. And this is the most important reason why courts sometimes are reluctant in accepting the evidence based on DNA technology.

Right to Privacy has been included under right to life and personal liberty or Article 21 of the Indian Constitution. Article 20(3) provides Right against Self-Incrimination which protects an accused in criminal cases from providing evidence against himself or evidence which can make him guilty.

Among the many new tools that science has provided for the analysis of forensic evidence is the powerful and controversial analysis of deoxyribonucleic acid, or DNA, the material that makes up the genetic code of most organisms.

DNA analysis, also called DNA typing or DNA profiling, examines DNA found in physical evidence such as blood, hair and semen, and determines whether it can be matched to DNA taken from specific individuals. DNA analysis has become a common form of evidence in criminal trials. It is also used in civil litigation, particularly in cases involving the determination of paternity of identity.

The admissibility of the DNA evidence before the court always depends on its accurate and proper collection, preservation and documentation in order to satisfy the court that the evidence placed before it is reliable. There is no legislation in India that can provide specific guidelines to investigating agencies and the court, and the procedure to be adopted in the cases involving DNA as its evidence.

Moreover, some provisions allow examination of person accused of rape by a medical practitioner and the medical examination of the rape victim respectively. But the admissibility of such evidence has remained in doubt as the opinion of the Supreme Court and High Courts in various decisions remained conflicting.
Judges do not deny the scientific accuracy and conclusiveness of DNA testing, but in some cases, they do not admit this evidence on the ground of legal or constitutional prohibition and, sometimes, public policy. Many developed countries have been forced to change their legislation after the introduction of the DNA testing in the legal system.

There are certain provisions in the Indian Evidence Act, 1872, such as Section 112, which determine child’s parentage and states that a child born in a valid marriage between a woman and a man within 280 days of the dissolution of the marriage, and the mother remaining unmarried shows that the child belongs to the man unless proved otherwise.

But there is no specific provision which would cover modern scientific techniques. DNA analysis is of utmost importance in determining the paternity of a child in civil disputes. Need of this evidence is most significant in criminal cases, civil cases, and in the maintenance proceedings in criminal courts under Section 125 of the CrPC.

But it has been held by the Supreme Court on several occasions that right to life and personal liberty is not an absolute right. In Govind Singh vs State of Madhya Pradesh, the Supreme Court held that a fundamental right must be subject to restriction on the basis of compelling public interest.

DNA is broadly termed as building the genetic blueprint of life. It was first described by scientists Francis HC Crick and James D Watson in 1953. Crick and Watson identified the double-helix structure of DNA, which resembles a twisted ladder, and established the role of DNA as the material that makes up the genetic code of living organisms. DNA is the same in every cell throughout an individual’s body, whether it is a skin cell, sperm cell, or blood cell. With the exception of identical twins, no two individuals have the same DNA blueprint.

DNA analysis for a criminal investigation uses highly sophisticated scientific equipment – first a DNA molecule from the suspect is disassembled and selected segments are isolated and measured. Then the suspect’s DNA profile is compared with one derived from a sample of physical evidence to see if the two match.

If a conclusive non-match occurs, the suspect may be eliminated from consideration. If a match occurs, a statistical analysis is performed to determine the probability that the sample of physical evidence came from another person with the same DNA profile as the suspect’s. Juries use this statistical result in determining whether a suspect is guilty or innocent.
The Supreme Court’s decision in the N D Tiwari case is very important from the viewpoint of the admissibility of such evidence. In this case, Rohit Shekhar had claimed to be the biological son of Tiwari. But Tiwari was reluctant to undergo such test stating that it would be a violation of his right to privacy and would cause him public humiliation.

But the Supreme Court rejected this point stating that when the result of the test would not be revealed to anyone and it would be in a sealed envelope, there is no question of being humiliated. The Court further stated that we want the young man to get justice; he should not be left without any remedy. It would be very interesting to see that how courts in India would allow the admissibility of DNA technology in the future.


The writer is a Senior Advocate and a senior executive member of the Supreme Court Bar Association. The opinions expressed in this
article are personal.