14313 - Aadhaar impact?: 7-judge bench to look at passage of 2017 Finance Act - Hindustan Times

Aadhaar impact?: 7-judge bench to look at passage of 2017 Finance Act

The decision virtually reopened the 2018 Aadhaar judgment since it upheld the validity of the passing the Aadhaar Act, 2016 as a Money Bill.

INDIA Updated: Nov 14, 2019 05:35 IST

HT Correspondent

Hindustan Times, New Delhi

The Centre maintained its stand that it is a money bill since it has provisions which deal with salaries and allowance to be paid to members of tribunals from the consolidated funds of India.(Sonu Mehta/HT PHOTO)


The Supreme Court on Wednesday referred to a larger bench the issue of whether the 2017 Finance Act could be passed as a Money Bill, while striking down certain provisions pertaining to the functioning of tribunals reconstituted under the act.

The decision virtually reopened the 2018 Aadhaar judgment since it upheld the validity of the passing the Aadhaar Act, 2016 as a Money Bill. The Centre relied upon this precedent to defend the manner of the passage of the Finance Act and provisions pertaining to tribunals.

The Centre’s submission led to the court examining the Aadhaar judgment in detail, particularly in relation to Article 110 of the Constitution which defines “money bills”. “It is clear to us that the majority dictum in KS Puttaswamy [Aadhaar case] did not substantially discuss the effect of the word ‘only’ in Article 110(1) and offers little guidance on the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Article 110(1)(a) to (g),” said the 3-2 ruling on Wednesday.

The interpretation of the Aadhaar Act was “liberal” and the court is convinced that these “might not be in accord with the bicameral parliamentary system envisaged under our constitutional scheme,” the order added.

While Chief Justice Ranjan Gogoi wrote the majority judgment for himself and justices NV Ramana, and Sanjiv Khanna, Justice DY Chandrachud and Deepak Gupta wrote the minority verdict.

The Constitution bench struck down the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017.

The court asked the central government to draft a fresh set of rules and report back within six months. The bench held that until the new rules are framed, the appointment of tribunals are to be made in accordance with the provisions of stipulated statutes.

The Centre maintained its stand that it is a money bill since it has provisions which deal with salaries and allowance to be paid to members of tribunals from the consolidated funds of India. The petitioners argued that just because a bill says that salaries shall be paid to the members of tribunal, it does not mean it is a money bill.

The government also argued that certification of the Finance Act, 2017 as a Money Bill was approved by the Lok Sabha speaker, and hence the court cannot judicially review this decision. Money bills are those which exclusively contain provisions for imposition of taxes and appropriation of funds out of the Consolidated Fund of India. Petitioners argued that a money bill can only be introduced in the Lok Sabha, and Rajya Sabha can only make amendments to it. But this bill came into force on April 1, 2017 and all suggestions made by the Rajya Sabha were dismissed. This entire act “amounted to a fraud on the Constitution” according to petitioners.

Congress leader Jairam Ramesh, who is a petitioner in the case, said, “It is important to have a discussion on the money bill in Parliament.”

12954 - Aadhaar Hearing [Day 15] Introduction Of Aadhaar Bill As Money Bill Unconstitutional: Datar, Chidambaram - Live Law

Aadhaar Hearing [Day 15] Introduction Of Aadhaar Bill As Money Bill Unconstitutional: Datar, Chidambaram

BY: MEHAL JAIN MARCH 7, 2018 10:43 PM

Datar expressed the need for review of the judgment in Binoy Viswam (upholding the mandatory linkage of Aadhaar with PAN card in view of Section 139AA of the IT Act, 1961).

On Day 15 of the Aadhaar hearing, senior counsel Arvind Datar, appearing on behalf of the petitioners, has advanced that the introduction of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016 as a Money Bill was unconstitutional and that it could have, at the most, been treated as a Finance Bill which required the approval of the Rajya Sabha.

Referring to Article 110(3) in so far as it provides that the decision of the Speaker of the Lok Sabha as to whether a Bill is a ‘Money Bill’ shall be final, he submitted that the said provision does not exclude the scope of judicial review.

On Day 1 of the Aadhaar hearing, senior counsel P Chidambaram had referred the bench to the 2007 judgment in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, wherein it was observed, “Article 212 seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular.”

Further, on that occasion, in view of the 2014 judgment in Mohd. Saeed Siddiqui v. State of UP, Chidambaram and Justice Chandrachud had agreed that the decision of the Speaker on whether a Bill is a Money Bill shall be final for the members of the house of the legislature, but the same may be called into question in the courts on account of an illegality.

Reverting to his argument from yesterday regarding Rule 9 of the PMLA Rules (as amended in 2017) which requires linkage with Aadhaar number for existing bank accounts and mandates the same for new accounts, he said that the consent of the account holder that is sought to be procured in the form is of no avail in view of the said Rules, the noncompliance with which renders their bank account inoperable.

He also indicated the order dated October 15, 2015 of the apex court in Justice KS Puttaswamy wherein the court had limited the mandate of Aadhaar to PDS, LPG Distribution scheme, MGNREGA, National Security Assistance Programme, PM Jana Dhana Yojana and Employees’ Provident Fund Scheme and declined the permission in that behalf to RBI, IRDAI and TRAI.

Stating that the Aadhaar scheme was envisaged only in respect of ‘Subsidies, Benefits and Services’ the receipt or expenditure of which is credited or incurred on the Consolidated Fund of India, Datar perused the Statement of Objects and Reasons of the Aadhaar Act. Justice DY Chandrachud also observed that it is prima facie limited in its applicability as under Section 7.

At a later stage, Datar also criticised the mandate of Section 7. He cited the instance of even Tirupati temple requiring Aadhaar.

“What is the issue in Aadhaar being required at several places? Like in the case of driver’s license”, inquired Justice Ashok Bhushan.

“At the entrance to the airport, one is required to furnish an ID proof. But it would be unreasonable to impose a condition that one cannot enter the airport without a driver’s license,” responded Datar.

Thereupon, Datar indicated Parliament speeches (including that of Congress leader Jairam Ramesh) recommending an amendment in the Act of 2016 to the effect of deleting Section 57, which allows even nonstate entities to mandate Aadhaar. Justice Chandrachud observed that by virtue of Section 57, permitting even private entities require the Aadhaar number, runs contrary to the concept of Money Bill. Justice Chandrachud also noted that there is no state interest involved in allowing private agencies to require Aadhaar.

Further, the senior counsel submitted, in context of the proviso to Section 57 making the mandate of Aadhaar by state and non-state entities also subject to the requirements of informed consent, counselling and data protection as per Section 8 and Chapter VI, that the concept of consent is illusionary by virtue of statutory provisions such as the PMLA Rules. He advanced that ‘consent’ has to be understood as ‘consensus ad idem’ as under the Indian Contract Act of 1872.

Datar cited the argument in the American Congress against the Social Security Number becoming the unique ID proof in all states in the USA as well as the backdrop in which the Privacy Act of 1974 was introduced.

Thereupon, he reiterated the arguments advanced earlier by other senior counsels- excessive delegation on account of definitions of bio-metric and core bio-metric information being inclusive and not exhaustive in the Act of 2016; Aadhaar scheme acting as an instrument of exclusion from social security schemes by virtue of Section 7 and the probabilistic nature of bio-metrics [reference made to Swaraj Abhiyan, (2016) 7 SCC 498]; Regulation 14 of the Enrolment and Update Regulations of 2016 (rejection of Enrolment) and Regulations 27, 28 and 29 (omission and deactivation) being arbitrary.

He expressed the need for review of the judgment in Binoy Viswam (upholding the mandatory linkage of Aadhaar with PAN card in view of Section 139AA of the IT Act, 1961).Further, he submitted that while the NIA Bill was being considered, the Executive power of the Union under Article 73 could not be said to be absolute. In the same context, he also cited the 1955 judgment in Rai Saheb Ram Jawaya Kapur v. State of Punjab.

The senior counsel on Wednesday drew the attention of the bench to the earlier interim orders passed by the apex court in connection with the Aadhaar controversy. On September 23, 2013, it was ruled that no person shall be made to suffer for not possessing a Unique Identification Number  even if the same has been mandated by any government authority and that the Aadhaar card shall be issued only after due inspection so as to not issue the same to illegal immigrants. On March 24, 2014, in SLP (Crl.) 2524/2014, it had been reiterated that no one shall be deprived of any services or social schemes for the want of Aadhaar and all government authorities had been directed to accordingly modify any circulars or notifications issued by them. The order dated September 23, 2013 had been reaffirmed on March 16, 2015. Thereafter, on August 11, 2015, a 3 judge bench had held that the Union of India shall publicise via both print and electronic media that Aadhaar is not mandatory for any social security schemes other than Public Distribution System scheme and the LPG distribution scheme. Finally, on October 15, 2015, a 5-judge bench of the top court had added the MGNREGA scheme, the National Security Assistance Programme, the PM Jan Dhan Yojana and Employees’ Provident Fund Scheme to the earlier list of two schemes. Further, it was held that the order dated September 23, 2013 shall continue to be in force and Aadhaar shall be purely voluntary till such time the matter is finally decided by the court one way or the other.

He submitted that after the coming into force of the Act of 2016, it was pertinent that the government and other civil authorities seek a variation of the apex court orders to validate the 139 circulars and notifications mandating Aadhaar. He remarked that in the jallikattu and the highway liquor ban cases, the apex court orders had been adhered to, while in the present case, there has been contempt.

Voicing the need for provisions for deletion of sensitive, personal information and for opting out, he concluded his arguments, citing the 1952 judgment in State of West Bengal v. Anwar Ali Sarkar on the reasonableness of a statue.

Thereupon, senior counsel P Chidambaram commenced his submissions on the subject of Money Bill.

Starting with Article 107 on the introduction and passing of bills, he proceeded to discuss financial bills and money bills as a subset thereof with reference to Articles 110 and 117.

In view of the fact that a Money Bill may only be introduced in the Lok Sabha and on account of the curtailment of the powers of the Rajya Sabha and the President in respect thereof, he submitted that the relevant provision may be accorded a strict interpretation.

He proceeded to explain the substantive difference between Articles 110 and 117 based on the use of the term ‘only’.

Further, he discussed the exclusion of jurisdiction of the courts by making reference to Article 74(2), clauses (2) and (3) of Article 163 and Article 363.

He mentioned Article 103 providing that the decision of the President on the disqualification of an MP shall be final but requiring the President to obtain the opinion of the Election Commission before deciding on the disqualification, in context of Article 110(3) which renders as final the decision of the Lok Sabha Speaker on the question of Money Bill.

Extension of March 31 deadline for mandatory linkage with bank accounts, mobile phones and other services

In view of the Attorney General’s recommendation that the bench can consider the question of extension in the last week of March, Justice Chandrachud observed that in the event the deadline is extended towards the end of the month of March, the financial institutions shall continue to proceed in uncertainty on the assumption that March 31 is the deadline.

The bench agreed to deliberate on the issue of extension after the conclusion of Chidambaram’s arguments.

It may be noted that by interim order dated December 15, 2017, the Supreme Court had set the March 31 deadline.

The hearing shall resume on next Tuesday

12878 - Law can be enacted to remove Aadhaar lacunae: Supreme Court - Free Press Journal

Law can be enacted to remove Aadhaar lacunae: Supreme Court

— By Agencies | Feb 22, 2018 12:07 am

New Delhi : The Supreme Court on Wednesday said the alleged defect that citizens’ biometric details under the Aadhaar scheme were being collected without any law, could be cured by subsequently bringing a statute.

A five-judge constitution bench headed by Chief Justice Dipak Misra, however, asked what the position will be with regard to breach, if any, that could have taken place between 2009, when the Aadhaar scheme was launched, and 2016 when the enabling law came into force.

The bench said the Centre came out with the law in 2016 to negate the objection that it was collecting data since 2009 without any authorisation, but the issue which needed consideration was what will happen if the data collected earlier, have been compromised. “Our (Privacy) judgement said that there has to be a law. They enacted a law to take away the basis of the argument. The absence of a law can be cured, but there may be other issues like whether the data collected (earlier) had the same statutory safeguards. What will happen in case of breach,” the bench, also comprising Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan, said.

The bench is hearing a clutch of petitions including one filed by former High Court judge Justice K S Puttaswamy challenging the constitutional validity of the Centre’s flagship Aadhaar scheme and its enabling 2016 Act.

Senior advocate Gopal Subramanium, appearing for the former judge, said the law cannot cure defects like invasion of fundamental rights of citizens and invasion of privacy in this case was “complete once you unlawfully collected information. All this cannot be cured.”

On the issue of making Aadhaar mandatory for the poor to avail facilities, he said the State was making a “moral judgment on the poorest of the poor in saying they make ghost cards”.

There are ways to detect and stop pilferages, he said, adding that fake persons can be identified and action taken against them, but “do not treat every person with indignity”.

The advancing of arguments remained inconclusive and would resume on Thursday.

11738 - How governments manipulate India's Constitution - Daily O

How governments manipulate India's Constitution

Democracy cannot override constitutional balances.

Politics

 |  5-minute read |   07-08-2017

RAJEEV DHAVAN

http://www.dailyo.in/politics/modi-bjp-nda-constitution-india-supreme-court/story/1/18808.html

A few days ago, Congress lawyer-politician Kapil Sibal approached the Supreme Court pleading that the NOTA option be removed from the Rajya Sabha election in Gujarat. On August 3, the Supreme Court called this effort opportunistic. "When it suited you, you did not come. You came here on the eve of elections," it said.

Manipulation

The Gujarat Assembly is in turmoil due to defections after six Congress MLAs switched to the BJP camp amidst high drama. The BJP regime has become a symbol for manipulation and intrigue. With President's rule in Arunachal Pradesh and Uttarakhand (before 2017 Uttarakhand Assembly elections) firmly in mind, along with post-election manoeuvres in Manipur and Goa, the BJP has grown in public imagination as one that will manipulate the Constitution itself to comprehensibly govern India.

In many ways, democracy lies in the fear of all this which is capable of manipulating democratic processes to produce undemocratic results. With Kerala burning over the death of an RSS worker, there is now a demand for President's Rule in the state, which was infamously a victim of such in 1959 and many times thereafter.

Can India's constitutional democracy survive this onslaught? Curiously, this onslaught has come from both sides in India's independent history. The Indira Gandhi years (1967-77) were massive examples of such manipulation. Now the BJP era from 2014 represents the second high point of manipulated democracy. Defections are back. President's Rule is back. Parliament is threatened by majoritarianism. This essay is about the internal manipulation of the Parliament itself.

Recently, the Aadhaar Act, 2016 was passed off as a Money Bill to disempower the Rajya Sabha to make amendments. The example is a telling one as indeed, the issue is of a Money Bill. 

Why was this done? All Bills require the attention of both Houses. If they disagree, unlike England, a joint session would have to be called (Article 108). Jaitley has often threatened joint sessions, but such thoughts have suffered forbearance.

A joint session would not have been an exercise in constitutionality or to restore matters constitutionally, but using numbers for the Lok Sabha to overwhelm the Rajya Sabha. Such a manipulation should be a last resort. For the Aadhaar Bill, the way out appeared to be to call it a Money Bill, which requires a special procedure (as mentioned in Article 110).

Since the Aadhaar Act contained incidental expenditure in the Consolidated Fund, it was stated to be a Money Bill. Once that is done, the Rajya Sabha can discuss it but not pass amendments binding on the Lok Sabha. That is why this manoeuvre was called the subversion of democracy since it choked up discussion on Aadhaar which does more than using unique identification for service delivery.

Face-off

This created an impasse. Was the Lok Sabha Speaker's certification that this was a Money Bill final? When the matter went to the Supreme Court, a telling exchange took place between the counsel and the court, with Chief Justice JS Khehar confidently declaring, "If the Speaker says green is blue, we will tell blue is blue."

Khehar is fond of making off-the-cuff remarks for drama, but does this mean that the Supreme Court is willing to inquire into the speaker's certification which is part of the parliamentary process into which the Supreme Court does not dare to interfere? If it does, a quarrel of gigantic proportions will be set up between the legislature and the judiciary.

Of course, there is a view that the Supreme Court can, and should step in, to review the speaker's decision. But this is a big step. It is all very well to say that in defection matters, the speaker's decision will not be final as in the Kihoto case (1992). But, we can't have the Supreme Court regulating parliamentary procedures in every finite way.

In such a clash of arms, both institutions will suffer. Indubitably, the Supreme Court has very limited, if any, powers of intervention, while parliamentary proceedings are actually taking place unless Parliament transgresses fundamental rights (as in the UP legislature case (1964) when the Assembly threatened to send High Court judges to jail. Here, as in Cash for-questions case (2007), the Supreme Court will define the privileges of the legislature so that the latter does not become a law unto itself by arrogating unlimited powers to itself. But can the Supreme Court go further?

SC intervention

Take the Money Bill example. While the Bill is going through Parliament (or Assembly), the court cannot interfere. But, after it becomes an Act, can the Supreme Court say that the "procedure" followed was wrong because the Bill could not have been certified as a Money Bill by the Speaker? 

In the UP Lokayukta case (2014) where I appeared, the court took the traditional view that the speaker's view was final.

This gets us back to our original dilemma. If the Parliament blatantly cheats on itself by using ramrod procedures to stifle discussion, does it become a law unto itself? The present answer seems "yes it can". That is a blow to democratic constitutionalism.

We are in danger of the Constitution's internal procedures being grossly abused, and nothing can be done about it. The people seem helpless. Our Constitution rests on two sets of principles: democratic and constitutional. Democracy cannot override constitutional balances. Nor can these "balances" throttle democratic discourse. Today, the BJP is threatening the very fabric of constitutional governance.

(Courtesy of Mail Today.)

10472 - Aadhaar Act: what it means for you - Live Mint

Last Modified: Thu, Sep 22 2016. 10 46 AM IST

Aadhaar Act: what it means for you

Aadhaar has received a legal backing to be used in social welfare schemes and to disburse subsidies as well

Uttaresh Venkateshwaran

Priyanka Parashar/Mint

With an intention to use Aadhaar for all government schemes, the Centre last week notified all sections, but one, of the Aadhaar, (Targeted Delivery of Financial and Other Subsides, Benefits and Services) Act, 2016. This means that Aadhaar has received a legal backing to be used in social welfare schemes and to disburse subsidies as well.

The Supreme Court had last year ruled that use of this system will not be mandatory and can only be extended to services like transfer of cooking gas subsidy, Jan Dhan Yojana, and Mahatma Gandhi National Rural Employment Guarantee Act. The ambit has slowly increased as it is seen as a valid document in daily financial life as well.

If you don’t have an Aadhaar number yet, should you apply for one, as it looks set to become a key validation and verification document? Here’s a look at Aadhaar’s usage in availing financial services.

Use in transactions

Taxation: You can e-verify income tax returns with the help of Aadhaar. You need to link your Aadhaar and Permanent Account Number (PAN) to the income tax department’s website with the help of a one-time password (OTP). However, it is important that the details such as name of the person on PAN and Aadhaar are same. Any difference, even in the spelling, may make it impossible to link the number. “It is not a mandatory element, but the government is looking to make the system more convenient for a taxpayer…from e-KYC to verification, Aadhaar will be a strong requirement to do business with the government,” said Archit Gupta, founder and chief executive officer, ClearTax.com, an online tax filing company.

According to the company, of the total number of e-verified income tax returns (ITRs) of 16.8 million this year with the tax department, around 7.77 million verifications were through the Aadhaar-PAN linked system.

Mutual funds: Aadhaar-based e-KYC has been facilitated by the Securities and Exchange Board of India for mutual funds. The procedure needs an OTP and Aadhaar. “There are some restrictions. If you do e-KYC through Aadhaar, you cannot make large-value investments due to limit of Rs 50,000 per year,” said Vishal Dhawan, founder and chief financial planner, Plan Ahead Wealth Advisors.

Banking: It is mandatory for customers to provide certain details to comply with know-your-customer (KYC) norms. To make this process paperless, the Reserve Bank of India had introduced Aadhaar-based e-KYC, which substitutes the need to submit multiple documents . Instead of giving separate proofs for ID and address, among others, a single document can replace all these requirements. To open a Jan Dhan Yojana account, one can simply use only Aadhaar as well. “It (Aadhaar) also helps in keeping track of the various schemes and programmes the government runs along with the beneficiaries,” said Adhil Shetty, chief executive officer and co-founder, Bankbazaar.com

Payments: Last week, there were reports that Aadhaar was going to be made mandatory to book railway e-tickets from December. A senior railway official, associated with the developments, clarified that it will not be in December. The Railways has been cracking down on fraudulent bookings with measures such as different timings for tatkal bookings, among others. Aadhaar-based booking may be a step in that direction.

What you should do

It would be prudent to apply and get an Aadhaar if you don’t have it already. You can visit the nearest enrolment centre along with proof documents and get your biometrics registered as well.

While not mandatory, experts recommend getting this card to benefit from smoother transactions.

Uttaresh Venkateshwaran

10316 - Aadhaar – Identity without consent, control or security - Legally India

08 August 2016

  An estimated 6-minute read

Aadhaar – Identity without consent, control or security

by CCG NLU Delhi

By Kritika Bharadwaj

The Central Government notified certain sections of the Aadhaar(Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016(‘the Act’)last month. As of now, only the sections setting out the establishment, powers and functions of the Unique Identification Authority of India (UIDAI) have been brought into force.

Passed earlier this year, the Actis aimed at more efficient delivery of government subsidies and services by eliminating ghost identities and reducing corruption. It does so by obtaining and storing, in a centralized database, biometric and demographic information of all Indians who have been residing in India for more than one hundred and eighty-two days. This database, called the Central Identities Data Repository (CIDR), not only stores information parted with at the time of enrolment, but also keeps a record of every identification request sent to it. Thus, every time a resident is required to authenticate her identity by any service provider, the CIDR would maintain a record of it.  Significantly, (and contrary to three previous Supreme Court orders), there is little room for doubt that the scheme has been envisaged as being mandatory to avail the benefits attached to it.

If the lack of an overarching privacy law wasn’t enough reason to worry, the government’s submission before the Supreme Court that there is no fundamental right to privacy has raised legitimate concerns about the project and its implementation. A lot has been written about the problems with the Act and the larger scheme itself. But two aspects of the privacy debate under Aadhaar deserve urgent attention. First, as a mandatory scheme with no option to opt-out at a later stage, Aadhaar raises important issues of consent and one’s right to control the use of their personal information. This has famously been articulated as ‘informational self-determination’ in several European jurisdictions. The second concern is procedural and pertains to the method of collection and storage of sensitive personal information.

No Power to Consent or Opt-out –

Biometric information such as fingerprints and iris scans form a core part of one’s bodily integrity. A requirement to part with such information as a condition precedent to availing essential services undermines basic constitutional values. While the enrolment form has a checkbox to verify consent, this is merely illusory, as failure to consent would amount to automatic exclusion from a host of benefits and services. Despite the fact that the Act mandates ‘enrolling agencies’ (discussed later) to explain the purpose of collecting demographic and biometric information at the time of enrolment, there is no legal obligation to inform residents of the extent of information being held about them. Aggregation of information within the CIDR as a result of a series of authentication requests over a long duration of time comes perilously close to creating a complete personality profile of every resident. This makes the state privy to a wide range of activities from buying an LPG cylinder to enrolling in a school, thereby drastically altering the individual-state power dynamic.

The Act further dilutes individual agency by creating statutory exceptions to how personal information can be used. Section thirty-three of the Actallows disclosure of personal information if a court (a District Judge or above) deems fit or if it is in the interest of “national security”.Both these caveats are problematic. To illustrate the first, in 2014, the CBI approached the Bombay High Court asking the UIDAI to run a fingerprint match on its database in order to enable it to identify culprits in a criminal investigation. Before the Court, the UIDAI had argued against sharing its data owing to privacy concerns. However, the Court felt differently. The Bombay High Court directed the Central Forensic and Scientific Laboratory to appoint an expert to determine if the Aadhaar database was technologically capable of matching fingerprints. This order has been stayed by the Supreme Court but the case is yet to be disposed off. The information shared with UIDAI was never envisaged to be used in criminal investigations. However, the Act explicitly allows information to be shared if a court allows it. As per UIDAI’s own statement, the system has a False Positive Identification Rate of 0.057 per cent. When applied to all residents within the country, a fingerprint search would have the effect of putting lakhs of residents under scrutiny.

Secondly, not only has the phrase “national security” not been defined in the Act (or in any other legal text for that matter), it would be the Executive’s sole prerogative to determine whether a situation qualifies for the exception. In both these situations, the individual whose information is actually at stake need not be consulted before her information is disclosed. These two exceptions are couched so broadly, that it is almost farcical to say that personal information will be used only for the authentication of one’s identity.

The Act contains broad exceptions to how personal information can be used and does not provide for any mechanism to opt-out or have one’s data deleted from the CIDR. In doing this, it diminishes one’s agency to consent, revoke consent and control how this information can be used. A society where individuals are unable to anticipate and predict the amount of information held about them and how it may be used is likely to have a chilling impact on democratic participation.

Dubious Collection and Storage of Personal Information–

The issue of consent aside, organizational mechanisms in place to collect and store personal information of over a billion residents also give rise to multiple concerns. Prior to the passing of the Act, the UIDAI hadoutsourced the process for enrolment to various private entities which possessed the requisite know-how. Sensitive personal information such as biometrics has thus been captured, stored and retained by private companies using their own technologyand without any oversight by government officials. In 2014, news reports of ‘Lord Hanuman’ having an Aadhaar card surfaced. Vijay Madan, the then Director General of the UIDAI later explained in a statement that this was ‘not a security issue’ but an instance of ‘malpractice’.The agency was then reportedly removed from the UIDAI panel. The Acthas not only given legislative sanction to the practice ofprivate companies collecting personal information, butalso does not present the affected individual with any recourse in case of a breach.

Once the data is transferred to the UIDAI, it is maintained by it in the form of the CIDR. The perils of centralized storage of personal information have long been acknowledged. Any unauthorized security breach could jeopardize the information of all residents at once. This is vastly different from a smart-card system or Apple’s Touch ID, which stores biometric information locally on the device. Under European data protection jurisprudence, storage is an important element to ascertain whether the means used are proportionate to the aim sought to be achieved by the law. If the purpose of the system is only to authenticate identity in order to plug leakages in the distribution system, the need for centralized storage must be questioned.

Aadhaar has the potential to irreversibly alter the relationship between the government and people. As the world’s second most populous country, the desire to make the distribution system more efficient is an important goal to strive for. But in this case, the trade-off between privacy and efficiency is not only undesirable but also unnecessary. Finally, the manner in which the Act was passed and the government’s submissions before the Supreme Court display a lack of good faith that only add to the already long list of concerns associated with the project.

First published here.

Original author: puneethccg

10219 - Aadhaar will ensure DBT reaches real beneficiaries: Jaitley - Business Standard

Aadhaar will ensure DBT reaches real beneficiaries: Jaitley

IANS  |  New Delhi 

July 15, 2016 Last Updated at 23:56 IST

Finance Minister Arun Jaitley said on Friday that the Aadhaar law will ensure that all genuine beneficiaries are covered under the Direct Benefit Transfer (DBT) scheme and will help in reducing leakages.

"DBT scheme is a very important scheme as it transfers the benefit to the intended targeted beneficiaries," Jaitley said while chairing the third meeting of Consultative Committee on DBT. attached to his ministry, a finance ministry release said.

"He (Jaitley) said that Direct Benefit Transfer ensures that benefits reach the targeted population and helps in reducing leakages," the statement said.

According to the statement, some members of the Committee suggested that the Banking Correspondents scheme should be further strengthened to ensure that there is last mile coverage of beneficiaries.

Responding to the queries raised by the members, Jaitley said that Parliament has passed the Aadhaar Act and "there are provisions in the legislation to take care of the issues raised".

As on May 31, 74 schemes of 17 ministries and departments were being reported on DBT, the statement added.

--IANS

10209 - Government notifies Aadhaar Act, forms panel to choose new chief of UIDAI - Economic Times

Government notifies Aadhaar Act, forms panel to choose new chief of UIDAI

By Aman Sharma, ET Bureau | Jul 13, 2016, 03.25 AM IST

Right now, only Sections 11to 20, 22 to 23 and sections 48 to 59 of the 2016 Aadhaar Act have been notified for operationalisation, the official said.

NEW DELHI: The next chairperson of the Unique Identification Authority of India (UIDAI) will be selected on the recommendation of a top-level committee headed by the cabinet secretary and will draw a salary of the level of a secretary, the government notified on Tuesday. 

The Union Government on Tuesday notified the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and operationalised some of its provisions, giving a legal shape to UIDAI. 

"So far, there were no regulations. UIDAI has now got a legal shape and standing to carry out its functions of enrolment, issuance of Aadhaar numbers and authentication under the Act," a senior official told ET. 

The Centre has also separately notified the UIDAI (Terms and Conditions of Service of Chairperson and Members) Rules, 2016, paving the way for appointment of its chairperson and members. 

The post of chairperson has been lying vacant since Nandan Nilekani resigned over two years ago. 

A search-cum-selection committee headed by the cabinet secretary and comprising secretaries of DoPT, finance and DEITY, and two experts to be nominated by the communications and IT minister, would recommend names for the chairperson and members for selection by the Government of India. 

The notification of the Aadhaar Act comes even as the Supreme Court is still to take a final call on whether Aadhaar number can be made mandatory for delivery of government benefits and subsidies to citizens. 

In its order on October 15, 2015, the court had said Aadhaar would be voluntary. 

"The Aadhaar Act will be notified in two phases for operationalisation of the Act. The chairperson and members once appointed will pass the regulations for notifying rest of the Act," said the official quoted earlier. Right now, only Sections 11to 20, 22 to 23 and sections 48 to 59 of the 2016 Aadhaar Act have been notified for operationalisation, the official said.