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, July 12, 2018

13770 - Only a new law that addresses concerns can save Aadhaar - The Print


The Aadhaar challenge captures a number of procedural issues that are unrelated to the merit of the scheme | Manisha Mondal/ThePrint.in

There are procedural and substantive issues plaguing the scheme, from rights violations to excessive delegation to the UIDAI.

As the country awaits the Supreme Court’s verdict on Aadhaar in a few weeks, there is a set of various challenges to the biometric architecture that has been built. These include the money bill question, pre-2016 enrolments, exclusions, constitutional rights, and excessive delegation. Here, we focus on how the Supreme Court should address them.

The money bill question
The Supreme Court has long reviewed actions that even lie within the domain of Parliament. Examples are cases relating to parliamentary privileges and the anti-defection law, where finality is given to action of the Speaker of the Lok Sabha, but some review of the action is possible. This review is limited, and includes select grounds such as illegality and colourable exercise of power. The court should affirm its authority to review whether or not the Aadhaar Act could have been passed as a money bill.

The Act relates to several matters outside Article 110 of the Constitution. Importantly, coverage outside Article 110 (such as the extension of the service to private actors) is not incidental to the scheme. If the court does not want to strike down the law entirely on the ground that it was invalidly enacted as a money bill, it must at the very least limit the law to schemes involving the Consolidated Fund of India. In this way, the law can be partially upheld. All other applications, from private authentication to building a stack using Aadhaar data, must go through both houses of Parliament.

Pre-2016 enrolments
Even though pre-2016 enrolments stand on shaky legal foundations, we must recall that the Supreme Court did not intervene when the data was being collected. At that stage, the court passed interim orders focussing on the alleged voluntariness of the scheme.
We now know that the voluntariness argument is meaningless, because if the scheme is linked to important benefits, it is not actually voluntary. But there is now a different argument before the court: the validating clause, Section 59.
Given that the court did not intervene earlier (though the argument before it was different), we do not believe that it should call for the destruction of the data. However, it should provide specific limitations on future actions of retroactivity, and secondly, it should declare that validating pre-2016 enrolments must also imply that any legal claims and violations, though rooted in the 2016 Act, must also apply to data handling prior to 2016.

Exclusions
As we have noted, the law does not seem to permit arbitrary exclusions. Safeguards to deal with exceptional situations have come into being, and while future empirical data may suggest otherwise – in which case, a challenge can always emerge – at this stage, the law and notifications do not seem to raise an Article 14 equal protection violation.

Constitutional rights
The Puttaswamy case alerts us to the risks of mass data collection. Minimal data is not merely about the gathering of limited information. It is also about keeping the application of a data programme to a minimum, because data by its very nature is a recombinant asset. A right may not be absolute, but any intrusion of a right cannot be arbitrary.

In this case, three features raise major concerns about the effective regulation of data under Aadhaar: the meta-data provides considerable information to enable abuse; an identity can be easily matched across schemes; and external penetration into the system through multi end-points risks data security.

To address these, the court must limit the use of Aadhaar. The greater the uses, the greater the chance for arbitrariness. We have already noted that, to allow for Aadhaar to exist given its money bill origins, it must be limited to schemes involving expenditure from the Consolidated Fund. To meet the rights-based challenges, it should be further limited to schemes where the state can show clear evidence of revenue loss through duplication. The issue of storage of authentication records noted previously also needs to be addressed.

Excessive delegation
While Indian law has often been relaxed on excessive delegation from Parliament to the executive or a regulatory agency, the Aadhaar Act seems to take matters to an entirely new level. Sections 23 and 54, in particular, put in place a scheme where large portions of the policy behind Aadhaar is determined by the UIDAI rather than Parliament. The extensive regulations that have followed the Act testify to this abdication of core legislative functions.

At the very least, both these provisions must be struck down, and Parliament itself must frame the policy behind Aadhaar. The policy must be part of a new law that Parliament enacts. The legal issue here is obvious enough: it links to an essential element of parliamentary government. But we should also note the dangers of such excessive delegation: it means that so much of what we are basing our judgments on with regard to Aadhaar (its promise and its problems) can be altered by way of a mere notification.

The Aadhaar challenge thus captures a number of procedural issues that are unrelated to the merit of the scheme: the fact that it was enacted as a money bill, the fact that the delegation to UIDAI is excessive. However, on the substance of the scheme as well, important questions arise, and only a new law that addresses these procedural and substantive concerns, from the appropriate amount of delegation to limiting the application of the scheme, should be able save the Aadhaar project.
This is the fourth piece in a four-part series covering the legal challenge to Aadhaar. The previous pieces can be read here, 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 Fellow at the Centre for Policy Research. His Twitter handle is @ananth1148.