PUBLISHED: 22:13 GMT, 25 March 2014 | UPDATED: 00:20 GMT, 26 March 2014
The UID (Unique Identification) authority's claim that biometric data collected by it for issuing 'Aadhar' cards was only for civilian purposes is set to be tested on the touchstone of our criminal justice system.
With the authority approaching the Supreme Court following an order to share its biometric database with the CBI to help solve a rape case, it stands burdened with the task of justifying its refusal to share the 'Aadhar' data for forensic purposes, particularly when our law orders the sharing of relevant material with probe agencies and does not consider the use of fingerprints etc, even if taken forcefully, as self-incriminatory.
'To claim that public interest would be better served by not sharing the biometric database for dealing with crime is beyond comprehension'
It will be crucial for the authority to defend its stand, as it was in line with its argument in another case before the apex court in which the very UID scheme has been challenged on the grounds that the government could not allow the collection of biometric data touching upon the right to privacy in the absence of any statutory backup.
In a bid to salvage the project, the authority has maintained that biometric data was being collected on a voluntary basis only for civilian purposes of disbursing government benefits.
In the absence of any statutory provision to the contrary, the authority might find it difficult to get past Section 91 of the Code of Criminal Procedure (CrPC) which mandates the sharing of documents and material sought by investigators unless public interests would suffer by the disclosure.
To claim that public interest would be better served by not sharing the biometric database even for dealing with crime is beyond comprehension.
More so, when Section 33 of the 2010 version of the National Identification Authority Bill – drafted to give statutory backing to the UID scheme after its launch – provided for disclosure of biometric data on an order by any court or on a direction by a senior officer seeking disclosure on grounds of national security.
Though the government now proposes to introduce a redrafted Bill, the submissions by the authority during the present controversy show that the technology/software used by it would not help the government deal with national security issues on an emergency basis.
The UID authority submitted before the Bombay High Court contended that its software currently permitted matching/verification only when an Aadhar card holder was available for providing live fingerprints rather than just singling out a person from its databank for a chance fingerprint check.
The authority had also approached the high court after a Vasco Da Gama trial court, on an application by the CBI, directed the sharing of biometric data of all the residents of Goa.
It decided to move the Supreme Court after the high court on February 26 had directed a study to explore if UID biometric database could help in identifying criminals.
Though it is now for the Supreme Court to decide if the 'Aadhar' database could be used for dealing with crime, the submissions by the authority could only fuel further debate on the justification for hastening with the scheme – in the backdrop of costs and risks involved – even before a legal framework was put in place.
In what reflects on the restricted scope and limitations of the ambitious project, the authority admitted that sharing of their data based on technology and program that was for civilian application would probably lead to false match.
In this backdrop, even if the scheme is cleared by the Supreme Court, the software/technology used by the UID authority could continue to be a hurdle in way of use of 'Aadhar' data in dealing with crimes and national security issues.
There is hardly any doubt that the scheme faces a serious challenge on account of alleged violation of privacy but there is no reason to bypass statutory provisions governing the criminal justice system once the hurdle is crossed.
The government, no doubt, should defend its scheme but should ensure that it does not end up defending criminals is the process.
Consumer forums will decide fees
In a landmark decision, consumer forums now will be able to decide the fees of those representing the litigant customer.
A notification to this effect last month paved the way for nonadvocates, including representatives of consumer rights bodies, to take up cases after obtaining accreditation.
The notification ushered in a changed regime where fees charged by such agents would be regulated by the forum.
So far, a litigant not appearing in person had no option but to hire a lawyer. Lawyers, however, will continue to appear but the forum had no role in settling the fee.
The notification states that an agent would have to file a written request before the forum if he wished to receive a fee from the litigant consumer.
Among other things, the paying capacity of the consumer would be taken into account while fixing the fee. In a case where a consumer seeks monetary damages, the fee would not be more than 20 per cent of the damages awarded.
Though the entry of non-advocates had became a reality last month, the Supreme Court had allowed the appearance of non-advocates and had directed publication of guidelines in this regard in 2011.
The government was made to take action following a contempt petition for not implementing the decision.
'Activism is for civil society'
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Supreme Court Building in New Delhi
A Supreme Court bench put judicial activism on the backburner as it refused to exercise its extraordinary powers under Article 142 to frame guidelines to deal with the rise in incidents of hate speech.
In fact, the judgment by the bench presided over by justice B S Chauhan itself indicated that if courts were shunning activism it was for civil society to take up the cudgels.
"The root of the problem is not the absence of laws but rather a lack of their effective execution. Therefore, the executive as well as civil society has to perform its role in enforcing the already existing legal regime," the bench had observed.
The court stressed the NHRC could also initiate action against people making hate speeches.
Though the court saw some problems and felt that the executive, civil society and NHRC needed to play an active role, it still decided not to intervene.
It quoted with approval an earlier judgment stating that judicial review was subject to the principles of judicial restraint.
Though the court did not specifically state why it had decided to keep away when it felt that various other bodies needed to play a proactive role, the judgment spoke for itself.
The bench stressed in the judgment that of late, "judicial activism of the superior courts in India has raised public eyebrows time and again."
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