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

Thursday, June 28, 2018

13743 - Legal challenges to Aadhaar: Money bill, early enrolments and exclusions - The Print



Much literature on Aadhaar has focused on whether it’s voluntary or mandatory. As a legal matter, this issue is only relevant for the exclusion challenge.

The following months are likely to radically alter the relationship between citizens and the state. The Supreme Court will soon deliver its verdict on Aadhaar. As India readies itself for the verdict, it is worth exploring the specific legal issues involved.
Keeping in mind Aadhaar’s basic framework – its focus on authentication, its seeding with other databases, its federated database and one-way linking – and the Supreme Court’s Puttaswamy decision upholding the right to privacy, let us consider the first legal challenge: categorising the Aadhaar Bill, 2016, as a money bill.

A money bill?
Under the Constitution, bills need the support of both houses of Parliament to become laws. A rare exception is the ‘money bills’ provided for in Articles 109 and 110. Such bills need do not require the approval of the Rajya Sabha.

In the Aadhaar case, the petitioners argued that the bill, with its wide-ranging provisions and applicability to public and private services, could not be considered a money bill. 

The state’s answer was two-fold. 

First, it argued that the Lok Sabha Speaker was the final judge of this question as per Article 110(3). This answer, however, seems hard to sustain given the long-held view that courts can engage in some basic form of review to prevent illegality or the colourable exercise of power.

The state’s second response was that the provisions of the bill that do not pertain to the Consolidated Fund of India are merely incidental. But even a bare reading of the bill reveals that such provisions are central to the scheme. The bill hardly seems like a money bill because Article 110 limits the definition to “only” specific cases. A different reading, where all other provisions are seen as “incidental”, would make the point of such a strict definition meaningless. It would result in a situation where all that is required to be a money bill is that some provision pertain to the Consolidated Fund. Any bill could easily satisfy this, thereby calling into question the existence of the Rajya Sabha.

One way to save the law without striking it down entirely might be to sever it. That is, to only allow those provisions addressed toward schemes drawing from the Consolidated Fund. As Arvind Datar argued, the law can either be a money bill or not. It would, thus, either have to fall entirely or exclude provisions such as those involving private actors.

The second challenge
A second challenge involved pre-2016 enrolments undertaken before the Aadhaar Act was passed. The challenge here was straightforward: executive power cannot impact legal rights without statutory force. Here, the state’s answer was that Section 59 of the Act validates pre-2016 enrolments. But the issue is whether Section 59 is valid.

Indian law is considerably tolerant of retroactive legislation (the major exception is criminal law). But the retroactivity that it tolerates is interpretive. For example, in taxation law, where retroactivity has often invited controversy (like in the Vodafone case), retroactive action changes the interpretation of the law. For example, a court may hold that a potato is a vegetable and the executive may later retroactively declare that potatoes are fruits, and therefore subject to different tax liability.
In the Aadhaar case, however, the retroactivity is not in interpreting a legal instrument differently. Rather, it is in imagining a factual scenario which did not exist, namely that pre-2016 enrolments had statutory support. This is a far trickier case to support.

However, the trouble with striking down pre-2016 enrolments is that the Supreme Court blessed such enrolments when they were being undertaken. In an interim order in September 2013, the court refrained from stopping enrolments, instead holding that no person should suffer for not having an Aadhaar card. It reaffirmed this stand in March 2015, and passed an interim order in August 2015 confining Aadhaar to the PDS and LPG schemes. This was judicially expanded in October 2015 to cover various other schemes, but with the clarification that the scheme was voluntary.

The distinction between choice and insistence broke down completely when the court subsequently upheld the mandatory linking of Aadhaar with PAN numbers. It now supported Aadhaar’s usefulness in tackling tax evasion. It will thus be hard for the court, after it allowed the state to frenetically expand enrolments and increase linking, to now strike down pre-2016 enrolments.

The question of exclusion
A third challenge related to exclusions. The claim was that because of the biometric identifiers and infrastructure available, several persons are excluded from the programme. Given that the programme mediates the relationship between citizens and the state, arbitrary exclusion would violate the Article 14 (equal protection) guarantee at two levels: because of exclusions from Aadhaar, and exclusions from the benefits that Aadhaar provides.

The state’s overall answer was that it has increasingly provided exception handling mechanisms for individuals with partial/no biometrics and for locations where enrolment facilities are unavailable.

Legally, the state’s answer does carry merit. The notifications issued do address potential exclusions which could arise, and provide alternatives to limit such exclusions. There may be policy questions regarding exclusions, but the law does not seem to suffer from the vice of arbitrary exclusions.

Much literature on Aadhaar has focused on whether the scheme is voluntary or mandatory. As a legal matter, this issue is only relevant for the exclusion challenge. It has no bearing on other legal issues. Whether the scheme is voluntary or mandatory does not, for example, change whether it is a money bill. 

Similarly, it also does not change challenges relating to rights, because one cannot voluntary surrender rights (one cannot, say, enter into a contract for slavery) or challenges based on excessive delegation by Parliament (because this challenge is based on whether it is Parliament or the UIDAI that is framing policy, and not on what the policy is).

This is the first piece in a four-part series covering the legal challenge to Aadhaar. The second and third part can be read here and here


Madhav Khosla, co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla. Ananth Padmanabhan is a former fellow at Carnegie India. His Twitter handle is @ananth1148.