10491- SC Stays Mandatory Use Of Aadhaar For Scholarship Schemes - Live Law

SC Stays Mandatory Use Of Aadhaar For Scholarship Schemes [Read Order] By: LiveLaw News Network | September 24, 2016

Read more at: http://www.livelaw.in/sc-stays-mandatory-use-aadhaar-scholarship-schemes-read-order/

The legal questions surrounding Aadhaar continue to trouble the government. Can the government use Aadhaar or not? If it can use, will it be voluntary or mandatory? And it seems that there are no easy answers from the courts.  

On 14 September, the Supreme Court granted an interim stay against the mandatory use of Aadhaar for scholarship schemes given by the Centre. All Bengal Minority Students Council moved the Supreme Court in a civil writ petition in which Gopala Gowda and Adarsh Kumar Goel, JJ directed Ministry of Electronics and Information to remove Aadhaar number as a mandatory condition for student Registration form at the National Scholarship Portal  on the government’s website. 

Senior Advocate Gopal Singh appeared for the petitioners. At least two other cases are currently pending on similar issues. 

The plea  in Delhi High court is on the exact same issue and could likely be infructuous now. Mathew Thomas, the original petitioner in the Aadhaar case has also filed a contempt petition in the Supreme Court challenging the mandatory use of Aadhaar for various government schemes. The court has agreed to hear him but has fixed a date. 

The court referred to their interim orders issued in the case challenging the constitutional validity of Aadhaar which categorically said that the number cannot be mandatory but the government is free to encourage voluntary use. “We will make it clear that Aadhaar card scheme is purely voluntary and cannot be made mandatory till the matter is decided by the court one way or the other,” the court had said in October last year by a bench comprising former chief justice H.L Dattu, and justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy. 

In the same order, the court allowed Aadhaar to be used for a few more government schemes such as LPG subsidy transfer, PDS ration, MGNREGA, pension schemes and Jan Dhan Yojana. But that was before the Aadhaar law was passed. 

The court’s interim stay order also does not take the new law into consideration, which is going to more confusion on the legal backing for Aadhaar. Earlier this month, the government fully notified the Aadhaar (Targeted Delivery of Financial and Other Subsides, Benefits and Services) Act, 2016 which formally signals the use of Aadhaar based authentication for benefits. Section 7 of the Act, states that for obtaining any benefit, service, subsidy that comes from the Consolidated Fund of India, one would need authentication through Aadhaar. 

If one does not have Aadhaar, then other identification cards will be accepted it says. But clearly, various government agencies have not been adhering to the law. Perhaps the court should intervene and spell out if the new law gives the government more powers to use Aadhaar than before? And the larger question on privacy continues to remain elusive for everybody. 

The court on 11 August last year said that a Constitution bench should rule on whether right to privacy is a fundamental right under the constitution or not. A year has passed since then and the bench is yet to be constituted. Till then, Aadhaar will be clouded with more questions than answers.  Read the Order here.

Read more at: http://www.livelaw.in/sc-stays-mandatory-use-aadhaar-scholarship-schemes-read-order/

10490 - Government presses on with Aadhaar in ration system despite glitches, delayed food law - Scroll.In

Government presses on with Aadhaar in ration system despite glitches, delayed food law

by Anumeha Yadav

Published Sep 25, 2016 · 07:30 am.   

By March 2017, Aadhaar will be mandatory for food benefits even as fingerprint authentication problems persist, and rules on grievance redress are missing

Image credit:  Anumeha Yadav

The National Democratic Alliance government has asked the states and Central ministries to link the details of all beneficiaries of its social welfare schemes with Aadhaar, a biometric-based unique identity number, by March 2017.

On September 14, the Unique Identity Authority of India – the agency that manages the centralised Aadhaar database – sent circulars to the ministries to specify the schemes, benefits and services for which the 12-digit number will now be mandatory.

One of the biggest such schemes to be linked will be the public distribution system under the National Food Security Act, 2013 – which provides a legal entitlement to subsidised foodgrains to 67% of the country’s population through a network of fair price shops.

“The public distribution system has the largest database of beneficiaries at over 85 crore,” said Ajay Bhushan Pandey, chief executive officer of the Unique Identity Authority of India. “It is much larger than the 13 crore users of subsidised liquefied petroleum gas, or the 1.5 crore students who receive government scholarships.”

He said the agency would help the Ministry of Consumer Affairs, Food and Public Distribution prepare a notification to make Aadhaar mandatory for food benefits.

"You [food ministry] should now be the main agency to register the residual population to be covered under Aadhaar,” he added at a conference of states organised by the ministry on September 16.

There are currently 105 crore Aadhaar holders in India, or 82% of its population.

Activists of the Right to Food campaign, however, criticised the move to make Aadhaar mandatory in the public distribution system. They said that even three years after it had been passed, the National Food Security Act was yet to be fully enacted by several states. And state governments were still to create grievance redressal mechanisms mandated by the law. This, they pointed out, would leave beneficiaries with no place to take their complaints if they faced Aadhaar authentication failures, as were being reported in various states.

Fingerprint snags

The Unique Identity Authority of India does not publish data on Aadhaar authentication failures in schemes where it is already being used, or instances where Aadhaar authentication worked only after multiple attempts.

But data from the states shows that Aadhaar authentication – a process where a beneficiary places his finger on a machine that uses real-time internet connectivity to verify his biometric data against that stored in the central database – is not working well in all states.

Andhra Pradesh, the first state to introduce Aadhaar in all ration shops, has a fingerprint authentication failure rate of up to 5%, said G Ravi Babu, additional secretary, food and civil supplies.

But in Rajasthan – the second state to adopt the process – fingerprint authentication does not work for 37% of enrolled households even nine months after it was introduced in December 2015.

Subodh Agarwal, principal secretary in the state’s food and civil supplies department, said 63.5 lakh transactions were recorded in August where beneficiaries received their 5 kilos of subsidised wheat after fingerprint authentication. This means the system works for 63%, or a little less than two-thirds, of the 99.7 lakh beneficiary families, mostly made up of small farmers.

Babu Singh, a construction worker, and Punni Devi who has polio and their four children cannot get rations after Aadhaar biometric authentication was made compulsory in Jawaja, Rajasthan. Punni Devi did not receive her Aadhaar number. The machine does not recognise the fingerprints of Singh or his 8-year-old son.

Agarwal said beneficiaries are allowed to take their grains after recording their names in registers kept at the ration shops, but this “manual” system will be phased out after September.

Jharkhand began Aadhaar authentication in ration shops in Ranchi district in July. An analysis of state data for July and August by economist Jean Dreze shows that only 49% got their grains in these two months, leaving out half the beneficiaries. Authentication failures were recorded both because of fingerprints not working on the point of sale devices and data entry errors in linking Aadhaar with their ration card details.

Despite these problems, VK Choubey, principal secretary in the state’s food and civil supplies department, said Aadhaar authentication will be implemented in all 24 districts by October.

Choubey's counterpart in Gujarat, MR Das, said the government has introduced Aadhaar authentication at 90% of ration shops. “At first, we had a 20% failure rate in fingerprint authentication, but it has now come down to about 6%,” said Das.

Delayed implementation of food law

The Central government is rushing states to link all ration cards to Aadhaar by March 2017. But this switch to the Aadhaar authentication system comes at a time when most states have not yet notified the rules for compensation or appointed two-tier grievance redressal authorities at the district and state levels, as mandated by the National Food Security Act 2013.

The Food Act was to be implemented within a year of its enactment by 2014, but this deadline has already been extended thrice by the food ministry’s executive orders, the last time in March 2015. Several states have not yet notified crucial parts of the law, including on compensation and grievance redressal, even three years after the Act was passed.

“Several states have appointed food department officials as district grievance redressal officials, which does not satisfy the requirement of the law to have an independent authority for this,” said Dipa Sinha, a social activist with the Right to Food Campaign. “If a beneficiary is denied rations because of fingerprint failures or data entry errors, they will be asked to approach the same food department officials who may be responsible for those errors in the first place.”

As per ministry data, only nine states have appointed food department officials as district grievance redressal officials. Twenty states have designated an existing commission to additionally act as the state-level food commission, while three states have not formed a state-level commission at all.

A toll-free grievance redressal facility – the 1967 helpline – has not been implemented in 10 states, including Rajasthan, Jharkhand and Uttar Pradesh.

The Act provides for compensation in case of denial of foodgrains, but only seven states have notified these rules.

“The rules specify what compensation will be provided in case of denial of food entitlements, the process of applying for compensation, the time limit within which an authority responds, but most states are yet to frame and notify these rules,” said Aditya Shrivastava, a lawyer.

Ministry officials said no one will be denied foodgrains because of Aadhaar errors. “In states like Rajasthan, which are reporting high rates of Aadhaar errors, the manual system is still being allowed and no one is being denied their entitlements,” said Vrinda Sarup, secretary, Ministry of consumer affairs, food and public distribution.

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10489 - Narendra Modi’s NITI Aayog power talk bears fruit; find out how - Financial Express

Narendra Modi’s NITI Aayog power talk bears fruit; find out how

Niti Aayog catalogues state-level best practices

By: The Financial Express | Updated: September 24, 2016 7:32 AM

In the case of micro-irrigation, the Gujarat study shows a 34% saving in water usage in cotton and 35% in sugarcane along with significant energy saving and production levels—while the payback is as low as 1.3 cropping seasons in the case of bananas, it is not clear from the study whether that is pre- or post-subsidy. (AP)

When he came to power, prime minister Narendra Modi talked of fashioning NITI Aayog as a repository of best practices, so that one state could learn from another and, if need be, seek the other’s active assistance. A smartly brought out State Forward compendium, on thick art paper, compiles over 80 such case-studies across the country, from areas as diverse as Aadhaar-enabled services to fixing education and transport woes—very helpfully, the name and e-mail of the official overseeing the project has been given at the end of each one- to two-page summary. By their very nature, such summaries do not go into the detail of how the project was conceived/executed, but their outcomes are inspiring. 

So, in the case of the Krishna district in Andhra Pradesh, using of a Point of Sale device which captured the biometrics of those availing of PDS rations—and cross-verified these in real time from the Aadhaar database—resulted in a saving of R70 crore over a period of 18 months. 

Were the same levels of savings to take place across the country—the NITI Aayog book does not do this—total savings could well be over R18,000 crore; they could even be more if the proportion of fake ration-card-holders weeded out are much higher. Similarly, while it is true the e-mandi is no substitute for freeing up physical mandis across the country, the experiment in Karnataka showed a significant increase in market prices for a few crops.

In the case of micro-irrigation, the Gujarat study shows a 34% saving in water usage in cotton and 35% in sugarcane along with significant energy saving and production levels—while the payback is as low as 1.3 cropping seasons in the case of bananas, it is not clear from the study whether that is pre- or post-subsidy. 

In the case of education, where most bemoan the quality of government teaching, the Pratham example talks of how, after the intervention period, more than 70% of children were reading fluently and doing basic arithmetic.

None of this is to say that these examples can be scaled up equally successfully, or that a solution in one state can easily be transplanted into another—if it were that simple, states like West Bengal would have learned from the likes of Gujarat and had high industrial growth and low labour disputes. 

The point, however, is that when successful examples like this are showcased, they have more impact than, for instance, a World Bank report talking about solutions that worked in a Latin American setting you are not familiar with. 

Now that NITI Aayog has done this first step—a team of over 60 people put together the case-studies—it would be interesting to see how different states reach out to others to learn from their examples; indeed, part of NITI’s job must be an effective outreach programme which helps states discuss their learnings with one another.

10488 - Aadhaar can't be mandatory, reiterates Supreme Court - Business Standard

Aadhaar can't be mandatory, reiterates Supreme Court

Government says it has established a legal bypass with new Aadhaar-related laws

Nitin Sethi  |  New Delhi 

September 24, 2016 Last Updated at 00:30 IST

The National Democratic Alliance (NDA) government’s plan to universalise Aadhaar through schemes, benefits and services of the state may get mired in litigation despite the law and regulations it has put in place in the recent past. A recent Supreme Court order has come as a warning signal of a possible legal imbroglio. The government, however, remains unfazed and is confident of the legal remedy already in place.

The Supreme Court annulled an order of the government, making Aadhaar mandatory in scholarship schemes for students. A two-member bench gave this ruling on September 14, pointing out that the apex court in its interim orders of October 2015 had barred the government from making the identification platform mandatory till pending the litigation was concluded.

It is the first such order by the SC, reiterating the stay on making Aadhaar mandatory after the Parliament passed and the President gave the assent to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, in March this year. The Act became fully operational on September 12 when regulations under it were notified by the Unique Identification Authority of India (UIDAI).

According to the government, the new regulations will help it universalise the use of Aadhaar in all kind of schemes, programmes and processes of the government and provide safeguards to people. Multiple senior officials in UIDAI and the Union government said the new regulations adequately address the concerns raised in the petitions being heard in the court on Aadhaar.

“This particular government order (mandating Aadhaar for scholarships) was inconsistent with the Supreme Court orders as well as the Aadhaar law. So, it needed to be rectified, we agree. The new law itself was not challenged before the court in this particular case,” said an official working on the legal issues around the identity platform.

He explained: “Under the new law and the regulations, we do not use the word ‘mandatory’. The regulations require authorities to ask for Aadhaar against the schemes and if someone does not have it, the agency or authority is required to ensure the person gets enrolled. Till the time he or she enrols, the person will not be denied the benefits,” he said. “So, no one is going to be deprived of the benefits for the lack of Aadhaar,” he emphasised. “But just like you earlier required a ration card for availing public distribution system (PDS), now the government can use this documentation route for identification of beneficiaries. One could not say I do not want a ration card, but I want subsidised rations under PDS. Can one?”

IDENTITY CRISIS

Supreme Court’s September 14 decision reiterates its interim order to not make Aadhaar mandatory; first such order after the Aadhaar law was passed Govt says Aadhaar can be a necessary condition for schemes and programmes, but after providing for universal enrolment In May 2016, Prime Minister Narendra Modi set deadlines to make Aadhaar a universal condition for major social schemes and services This includes MNREGA, NFSA, Income Tax Declarations, NGO funding and pensions 8 of the 9 Aadhaar-related cases to be heard by a five-member Bench of the apex court

Those opposing Aadhaar believe the government is surreptitiously making it mandatory by hiding behind the legalese. The net result is the same, they claim — people will be denied benefits if they don’t have Aadhaar. Whether the government’s logic cuts ice with the Supreme Court would be decided when the five-member bench hears a host of petitions, lying before it since the interim orders of 2015. A petition supported by the Congress party questioning concerns of privacy and the passage of the law as a Money Bill in the Lok Sabha is also pending before the apex court, though notices have not been issued in the case as yet.

At the moment, Business Standard could list nine petitions and two interventions pending before the Supreme Court on different issues pertaining to Aadhaar. On the other hand, the Software Freedom Law Centre lists out many dozen instances of alleged violation of the Supreme Court orders in the use of Aadhaar, or of making it mandatory. The UIDAI on September 15 sent a missive to all state and central authorities to identify schemes where Aadhaar would be made compulsory but with the provision that those who don’t have it will be given a chance to enrol. It called it making Aadhaar ‘as a condition precedent’.

Many departments of the Union and state governments began making Aadhaar mandatory before this. For example, in August 2016, the NITI Aayog made it mandatory for NGOs seeking central government grants to submit their functionaries’ Aadhaar numbers. It cited a meeting chaired by Prime Minister Narendra Modi, ordering as much in May 2016. Business Standard reviewed the minutes of these meetings where timeframe was fixed for ensuring universal use of Aadhaar for many government services, including all major social schemes, on a priority basis.

Moreover, Aadhaar as a mandatory requirement has already been infused in schemes such as PDS in several states. Several media reports have shown either its failure to authenticate people’s identity, leading to denial of benefits, or questionable manual overrides, undoing the entire logic of the technology. But that remains a question partly of the inherent failure rates of the biometric technology and of using the technology when the country doesn’t even have the necessary communication and other infrastructure in place, as a recent reply in the Parliament by the government showed.

"In light of the new regulations and the law now in place, any earlier order by different authorities making it mandatory would have to be amended to say yes Aadhaar is required but if someone doesn’t have it, the authority should enrol the person. If he or she still does not enrol then the scheme or law takes its course,” explained one of the officials.

But, Aadhaar as a mandatory requirement has already been infused in to schemes such as PDS in several states. Several media reports have now come in of either its failure to authenticate people’s identity losing to denial of benefits or questionable manual overrides being provided undoing the entire logic of having using the technology in the place. But that remains a question partly of the inherent failure rates of the biometric technology and of using the technology when the country does not have the necessary communication and other infrastructure in place, as a recent reply in the Parliament by the government proved.

10487 - Supreme Court reminds govt: Aadhaar cannot be mandatory - Indian Express

Supreme Court reminds govt: Aadhaar cannot be mandatory

A bench recalled an order whereby it was clarified that “the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other”.

Written by Utkarsh Anand | New Delhi | Updated: September 23, 2016 10:57 pm

Supreme Court. (File Photo)

Reminding the Central government that Aadhaar cannot be made mandatory for any services, the Supreme Court has ordered it to remove a condition making it mandatory for the students to give their Aadhaar numbers for various scholarship schemes. A bench led by Justice V Gopala Gowda recalled an order of the top court in October 2015 whereby it was clarified that “the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other”. But a the letter dated sent by the Central government to chief secretaries and administrators of all states and union territories on July 14 had stated that only online application under the National Scholarship Scheme will be accepted and “it may be noted that submission of Aadhaar is mandatory.”

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Appearing for All Bengal Minority Students Council, senior lawyer Gopal Jain said that this communication was in contempt of the interim order passed by a Constitution Bench, which has repeatedly said that Aadhaar could not be made mandatory and nobody could be denied access to any service for lack of it.

The bench accepted his submission and stayed the operation and implementation of Centre’s communication for Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme to the extent they made submission of Aadhaar mandatory.

“We direct the Ministry of Electronics and Information Technology, Government of India to remove Aadhaar number as a mandatory condition for students’ registration form at the National Scholarship Portal…” further directed the court in a recent order.

It has also sought an explanation from the Centre for including such a condition despite the five-judge bench’s restraint against making Aadhaar compulsory.

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