8408 - Centre opposes contempt plea in Supreme Court, says Aadhaar not mandatory - dna

Centre opposes contempt plea in Supreme Court, says Aadhaar not mandatory

Thursday, 30 July 2015 - 8:50pm IST | Place: New Delhi | Agency: PTI

The government said that persons, having Aadhaar cards, were being asked to provide it to authorites but this was optional, she told the bench that also comprised Justices S A Bobde and C Nagappan.

Government opposed in the Supreme Court a plea on Thursday seeking initiation of contempt proceedings against it, the Reserve Bank of India (RBI) and others for allegedly insisting on Aadhaar cards to grant benefits of various schemes to citizens, saying it was not mandatory.

In pursuance of earlier orders, the Centre has conveyed to the states and concerned authorities not to make Aadhaar cards, issued by Unique Identification Authority of India (UIDAI), mandatory for availing various schemes, Additional Solicitor General Pinky Anand told a three-judge bench headed by Justice J Chelameswar.

The government said that persons, having Aadhaar cards, were being asked to provide it to authorites but this was optional, she told the bench that also comprised Justices S A Bobde and C Nagappan.

Senior advocate Gopal Subramanium, appearing for Mathew Thomas, one of the PIL petitioners, had filed an application seeking initiation of contempt proceedings against the Centre and others including RBI and the Election Commission. He had alleged that the Government and others were in violation of earlier orders that had said that no person should be denied any benefit or "suffer" for not having Aadhaar cards.

"In the meantime, it has been brought to the notice that the Aadhaar identification (card) is being insisted upon by various authorities. We are not going into the specific instances...We expect that the Union of India (UOI) and states and all their functionaries shall adhere to the order dated September 23, 2013," the court had said.

Prior to this, the bench had said, "no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory...".

The bench is hearing a batch of pleas against decisions of some states to make Aadhaar cards compulsory for a range of activities including salary, provident fund disbursals, marriages and property registrations.

Earlier, the court had said Aadhaar will not be mandatory and a person, who does not have Aadhaar, should not suffer in availing of government benefits and services like gas connections, vehicle registration, scholarships, marriage registration and provident fund. 

Earlier, the apex court had asked the Centre not to issue Aadhaar cards to illegal immigrants as it would legitimise their stay.

"The scheme is complete infraction of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty). The government claims that the scheme is voluntary but it is not so," senior advocate Anil Divan, arguing for Justice (retd) K S Puttaswamy, former judge of Karnataka High Court who has filed one of the PILs, said. "Aadhaar is being made mandatory for purposes like registration of marriages and others. 

Maharashtra government has recently said no marriage will be registered if parties don't have Aadhaar cards," Divan said.

Justice Puttaswamy, in his PIL, has also sought a stay on the implementation of the scheme. Making Aadhaar mandatory for various purposes raises questions over the government's authority to implement such schemes, the plea had said, adding that it also highlighted "the perils of the manner of its implementation".

The Centre had said that the consent of an individual was indispensable for Aadhaar and it has been launched to "promote inclusion and benefits of the marginalised sections of the society that has no formal identity proof." 

8321 - Right to privacy not fundamental, govt argues in Supreme Court - Live Mint

Right to privacy not fundamental, govt argues in Supreme Court

AG Mukul Rohatgi says Constitution makers did not intend to make right to privacy a fundamental right

 Shreeja Sen 

New Delhi: In the ongoing hearing on petitions in the Supreme Court against the unique identification project, or Aadhaar scheme, on the ground that it violates the privacy rights of individual citizens, the government on Wednesday told the court the Constitution does no envisage privacy as a fundamental right.

“Constitution makers did not intend to make right to privacy a fundamental right,” attorney general Mukul Rohatgi said, citing previous judgements of the apex court.

Pointing to the wide divergence of views on privacy in the past verdicts of the apex court, Rohatgi urged the three-judge bench hearing the case to refer the petitions challenging Aadhaar scheme to a Constitution bench of five judges.

He said the issue of privacy has not been settled by the apex court and would require a conclusive consideration.

At present, a bench comprising justices J. Chelameswar, S.A. Bobde and C. Nagappan are hearing the case.

Lawyer Shyam Divan, representing one of the petitioners, opposed the plea to refer the case to a Constitution bench, saying that even the government, in its written submissions, had said there is a fundamental right of privacy.

Divan will continue his arguments after 2pm.

4975 - SC notice to states on PIL against Aadhaar scheme - Business Standard

SC notice to states on PIL against Aadhaar scheme

IANS  |  New Delhi  November 26, 2013 Last Updated at 20:52 IST

The Supreme Court Tuesday issued notice to all the states on a PIL contending that the entire Aadhaar scheme was unconstitutional as the biometric data collected under it was an incursion and transgression of individual privacy.

Notice was issued after court was told that a large number of States have linked the entitlement of socially and economically beneficial schemes with the Aadhaar scheme.

Referring to the provisions in various State, senior counsel Shyam Divan told the court that possessing a Aadhaar card has become necessary for the registration of marriages under Hindu Marriage Act, Special Marriage Act, solemnization of marriages, admission to schools, drawing salaries, and for securing essential services, cooking gas, rural jobs scheme, food subsidy and other welfare schemes.

Though there is no statutory backing for the Aadhaar scheme, but even if there was one even then storing the digitalized biometric data of the finger prints, facial photograph and that of iris on a server could not be done, he told a bench of Justice B.S. Chauhan and Justice S.A.Bobde.

Divan, who had appeared for the main petitioner Justice (Retd.) K.S. Puttaswamy, said that even if the Aadhaar scheme was voluntary even then the government could not keep such personal data of the citizens as it violated Article 14 and 21 of the Constitution and would remain a coercive instrument in the hands of the government.

Asking the senior counsel to make his submissions taking into account "harsh ground realities", Justice Chauhan said, "Even in India we have 30 percent slaves.

"People don't have potable water. For them food and water is more important than right to privacy. We are giving rice to people for Rs.1 per kg. Even today 60 percent of girls are married below the age of 18 years."

"What is the percentage and whose rights are being argued (for the violation of privacy)?" Justice Chauhan asked Divan telling him that the impact of Aadhar card on the invasion of privacy of citizens was "variable".

It may be an issue with white collar people but certainly not who are struggling for food and water, the court said as Divan sought to persuade the court that Aadhaar must be abandoned altogether.

Conceding the point raised by the court, Divan said: "It might not impact all similarly. To some it might. To some it might not at all and to some in distant future. There will be variable impact."

"There is a harsh reality. They have issue with sustenance. For them this point(of privacy) will not impact", the court reiterated pointing to harsh reality of a poverty-ridden society.

Pointing to the possible commercial use of this digitized biometric data, Divan said that besides being unconstitutional, the entire project was being executed by private enterprises with no statutory rules and guidelines to safeguard the data from being misused.

4868 - Demanding Aadhaar to provide govt services is contempt of court: UIDAI petitioner - Bangalore Citizen Matters

'AADHAAR TOTALLY VOLUNTARY'

Demanding Aadhaar to provide govt services is contempt of court: UIDAI petitioner

Justice Puttaswamy, who filed the PIL against UIDAI in Supreme Court, says that Aadhaar card needs to be converted in to a Citizenship Card like in the USA, to keep a check on illegal migrants.

Bosky Khanna, 21 Oct 2013 , Citizen Matters

Over 68 lakh people out of total 96 lakh have already enrolled for Aadhaar card in Bengaluru. Most are waiting for the Direct Benefit Transfer scheme to roll out, and for the LPG subsidy to come to the bank accounts mapped.

While everyone was under the impression that Aadhaar card is mandatory for all government subsidies and services, a Supreme Court interim order issued on September 23, 2013, ruled that Aadhaar card cannot be made mandatory, it has to be voluntary.

Retired justice Puttaswamy, the man behind the PIL filed in Supreme Court against UIDAI. Pic: Bosky Khanna

Justice Puttaswamy, who has filed the PIL in the Supreme Court, is a patient of Asthma and Diabetes. He hears people loud and clear with the help of a hearing aid and reads every newspaper and magazine in detail with the help of a magnifying glass.

Though he has filed the petition against Union of India through Principal Secretary, Planning Commission of Government of India and Unique Identification Authority of India (UIDAI), he has never physically been to the Supreme Court for this purpose. He is being represented by Justice Mandagadde Rama Jois (who is also a Rajya Sabha member) and senior Supreme Court advocate Anil B Divan. The advocates on record representing the case in Supreme Court are Govind Goyal and Ankit Goyal.

This was in response to the Public Interest Litigation filed by a Bangalore-based retired Justice K S Puttaswamy in the Supreme Court. The order has shaken the government’s plans and has resulted in chaos and confusion among citizens.

Citizen Matters caught up with Puttaswamy, to understand the concerns raised by him on Aadhaar card. 88-year-old justice Puttaswamy is young at heart and spirit. He says that collecting biometric details for issuing the card which merely states that one is a resident of India is invasion of privacy under Article 21, of the Indian Constitution. Here are the excerpts from the interview.

Why did you file the PIL in the Supreme Court against UIDAI? Is there any instance or reason which led you to do so?

There are a few contentions which led me to file the PIL. There is no parliamentary approval for UIDAI. As a matter of fact, a bill - National Identification Authority of India bill, 2010 - was brought before the parliament. It was referred to the Select Committee (which consists of 30 members including lawyers, IAS officers, ministers and representatives of every political party). These 30 members examined the bill in detail and rejected it saying that it has serious flaws, including invasion of privacy. The committee said that the bill was constitutionally invalid. Normally they should have brought out a fresh bill, by removing the flaws before issuing the Unique Identification Cards (UIC). But they did not do so. Instead, the central government very curiously issued an Executive Order for issue of UIC.

One more objection is that private agencies are collecting all biometric data required.

You filed the PIL in December 2012, but UIDAI started enrolling people much ahead of it. Why was the delay?

I learned about the Select Committee rejection from Rama Jois, who is a good friend of mine. I, then decided to approach the Supreme Court under Article 32 of the Indian Constitution. The article guarantees an individual to approach the Supreme Court directly for infraction of fundamental rights. The individual can approach the court through a petition.

Click here to read the summary of Parliamentary Committee report on Aadhaar, compiled by PRS India.

Why was no objection raised in the early stages itself ?

I raised my objections when I got to know of the Select Committee meeting and the rejection. In fact apart from me, there were other cases already filed in the Madras High Court and the Mumbai High Court. So around 20 days before my case was to come up for hearing in the Supreme Court (on September 23, 2013), the additional solicitor general Nagesh Rao, heard the cases, consolidated them and put them on to the Supreme Court. So people have been fighting and have voiced out before me too.

What are the loopholes in the government's bill?

The biggest loophole is that private agencies have been given the task of collecting personal details, fingerprints and iris. Another point is that, this is not a card which proves that I am a citizen of India, but it merely says that I am a resident of India. It is a residential card. In USA, they have a Citizenship Card, and the data is collected by the government and issued by the government.

But Passport Seva Kendras are also being operated by private firms. In Bangalore, a tech firm runs the front-end process of collecting, checking and processing forms at the PSKs. The forms have a lot of personal information of citizens. Is that not a privacy worry?

I am not aware of private companies collecting details for the Passport Authority. But if they are doing, it is very bad. I feel very sorry for the government and the department.

What are the concerns you have raised in the PIL?

The grounds which I have urged are-

• The executive orders should not have been made, when the Select Committee in its wisdom has rejected the bill. They should have made a fresh bill and sent it to the Parliament for approval again.
• It invades my right to privacy, which is guaranteed to me under Article 21, which gives me the right to lead a dignified life.
• They want to issue the card even to illegal immigrants. Every second resident in Guwahati is an illegal immigrant. There are many such in Kolkata and also in Sirsi. These are all refugees from Bangladesh and other neighbouring nations taking refuge here. So one can only imagine, how many could be in Bangalore, Delhi and other places.

Unfortunately, these are the vote banks of political parties. Thus the government seems to be hurriedly pressing for it.

What does the interim SC order say?

"..no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled to it under the law and it should not be given to any illegal immigrant."

Why do you think it is an invasion of privacy? Fingerprints and iris details are also nowadays being collected by the RTO for issuing driving licence. One also has to give his fingerprints while registering a property.

I am not aware of the driving licence. When I got my driving licence, all I had to do was to pass the test and give my residential address. In my opinion, this is sufficient. In the case of property registration, nobody has ever objected to it. This has been going on since the British Raj. Further it is backed by the Indian Stamp Act and the Registration Act. It is regulated.

But the UIDAI is neither regulated nor backed by any bill. There was also an attempt to bring in a law, when the UIDAI was to start operations, but it was not accepted by the select committee headed by Yashwant Sinha.  

Is your main objection - the way in which Aadhaar is being implemented, or do you see inherent flaws in the UID provisions themselves?

It is both. It is the public money which is being wasted and many voices of people objecting to this have also been ignored. The scheme is being implemented without any analysis.

You have also questioned the safety of data, so does this mean that data is presently being leaked or misused or not handled correctly by UIDAI? Are there any cases which you can quote on this?

I am worried about the safety of Indians. Any data can be stolen with the help of advanced technology. The data collected are all important documents. Private agencies want to make profits quickly, so if they want they can sell the data.

Nandan Nilekani, the chairman of UIDAI, is very professional man and has sound knowledge in the field of technology, but does he know the legal aspects?

Are not other government document schemes such as passport, ration card etc., equally vulnerable to theft of data, loss of privacy etc? Why is Aadhaar alone riskier?

Because, it is being done by private agencies. If it is done by the government agencies, where the staff is well-trained, well-equipped and legally backed, it is fine.

Private operators are contracted to the government under legal terms. If they violate privacy, government can act against them. If the entire work is done by government staff themselves like you say, why do you think they are incorruptible? What if they sell out data for money?  

Private operators are bad always; there is always a possibility of data being leaked. The present government also is not trustworthy. There is no legal or government backing to Aadhaar. Today anyone can get an Aadhaar card, whether Indian or not.

You know the status of government record-keeping, especially when handling citizen data entry like voter cards, ration cards etc. Everything from names to spellings to age, etc. is entered wrong. There are people in Bangalore’s voter rolls who are 4000+ years old. Will you trust data entry by the  government data entry staff for a Citizenship Card project?

There are errors everywhere. Sometimes man made or some times printing errors. This 4000+ age which you are speaking about is a printing error.

A Citizenship Card is a simple card and is regulated by the Citizenship Act. It does not have just executive orders, like Aadhaar card. Errors can happen here also. But since it is backed by an act, it is trustworthy, like the Voters ID card, Ration Card and so on.

One of the reasons Aadhaar was originally promised was to cutback on massive duplication of cards issued for benefits - like ration cards, BPL cards, Antyodaya cards etc.. If there is one unique non-replicable ID for a citizen, then that person cannot masquerade and get multiple benefit cards. Is the systematic weeding out of beneficiary duplication not a good thing?

Yes, that was the main idea - to have just one card for everything, instead of multiple cards. We have to wait and watch now, what will be the final outcome. The SC case hearing is on October 22, 2013. Let us wait and watch as to what happens.

Will you support Aadhaar if there are any changes made? If so, what changes do you expect?

If the flaws pointed by the Select Committee are removed and a proper Citizenship Card is issued, as per Parliament orders, then it is ok.

The SC has passed only an interim order, so is it possible that the stand of the SC will remain permanent? Are there chances of the SC overturning its decision, when passing the final judgment?

I cannot say of the Supreme Court rejecting the petition, but most likely it seems that they will not. The Supreme Court does not entertain all PILs, they go by the genuine ones as there are many instances where PILs are filed out of political interest.

The Supreme Court will not be guided by political things. They will go by the validity of the executive order and from the constitutional point of view.

An interim order is as much as a final order. So presently all these government schemes cannot be imposed upon people. And if it is done, it is contempt of court.

In the interim order, the SC rules that UID cannot be made mandatory for essential services. What are these essential services?

The interim order does not mention any names of schemes. But under this, no one can insist of Aadhaar for any government schemes like ration card, bank account, cash transfer, issue of LPG subsidies and so on. It cannot be issued to immigrants too.

So now, what order do you expect the Supreme Court to pass, if the PIL is won? Any chance of all these schemes being cancelled or becoming null and void?

As the petitioner, I expect the order to be in my favour. We have sought for quashing the executive order. So if Supreme Court quashes it, the Aadhaar becomes a useless card, because the very foundation of the Aadhaar card is the executive order. As per the interim orders too, all these schemes stand cancelled.

What will happen if the bill is passed in the parliament, before the final order of the SC?

I am confident that the Parliament will not approve the bill. It cannot or rather will not compel citizens to part with their fingerprints and iris data. If the Parliament had agreed upon it and then cards were being issued, I would have then challenged the act in the Supreme Court.

Even if this particular ruling stays, how much of a victory is it for the anti-UID activists? For example, what if banks demand UID as part of KYC or interest credits tomorrow?

If,  after the interim orders or the final order, any one demands the Aadhaar card, a complaint can be made against that person. The Supreme Court clearly says that it is voluntary for people to have an Aadhaar card. It cannot be implemented or compelled upon people.

Do any of your family members have an Aadhaar card?

No. None of my family members- wife, two sons and two daughters have an Aadhaar card.

Can action by civil society groups/legalists actually lead to nullification/abandonment of the whole scheme? But is that even desirable, given the huge resources spent on it?

The government has spent over Rs 50,000 crore for the issue of Aadhaar cards to citizens, which is not an identity proof. A lot of time and energy of people have also been spent on this. That is one of the reasons why we have appealed to the court to quash it.

In a nutshell, given all that has been done till now, what is the best possible future scenario for Aadhaar that you propose, and how likely is it?

In my view, with changes in the Bill, the Aadhaar card can be converted into a Citizenship Card. The executive order of the Parliament can change and the government may also venture into issuing of Citizenship Card. But if Aadhaar is quashed, then the card which people have will become another waste paper and the data which is with the private agencies and the UIDAI is a great matter of worry.

How can the government make the most of the data collected from over 50 crore Indians? What do you suggest?

The government can use all this data to check how many illegal immigrants are there in India and send them back. There are many who speak Arabic, Bangla (not Bengali) and Islamic Urdu. My hunch is that there are over 4-5 crore illegal immigrants in India and Bangalore houses around a lakh. Their prime source of money is from Arab and Gulf countries. Some could also be terrorists.

If a concerted effort is made, if there is an honest, hard working, dedicated, sincere and concerned official or government, a proper database of illegal immigrants is easy to prepare.

Related documents:

• Copy of petition against UIDAI in Supreme Court
• SC interim order copy
• Report of the Parliamentary Standing Committee on Finance

Write to Author  ·  Write to Editor

Bosky Khanna

Bosky Khanna is Staff Journalist, Citizen Matters.

4801 - Final hearing on Aadhaar card on Oct. 22 - The Hindu

NEW DELHI, October 8, 2013

Final hearing on Aadhaar card on Oct. 22

LEGAL CORRESPONDENT

Aadhaar is the only fool proof mechanism to check

 misuse of subsidies, claims the government.

The Supreme Court on Tuesday posted for final hearing on October 22 a batch of petitions and applications filed by the Union government and oil companies seeking a modification of the interim order that restrained the government from making the Aadhaar card mandatory for transfer of social welfare benefits to beneficiaries.

A Bench of Justices B.S. Chauhan and S.A. Bobde decided to post all matters for final hearing, after Attorney-General G.E. Vahanvati and Solicitor-General Mohan Parasaran pleaded for modifying the interim order, passed on September 23.

The interim order said, “In the meanwhile, no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory, and when any person applies to get the Aadhaar card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant.”

The Attorney-General drew the attention of the court to lift the stay, stating that gas cylinders were being distributed on a highly subsidised rate amounting to Rs. 40,000 crores.

Mr. Vahanvati clarified that retail consumers would not require the Aadhaar card to purchase LPG cylinders from oil marketing companies at market prices. Only those seeking subsidy on supply of market price cylinders (up to nine cylinders per annum) were required to mandatorily obtain an Aadhaar card, and produce the same in order to avail of the subsidy.

The card was the only foolproof mechanism for Direct Benefit Transfer of the subsidy amount.

Mr. Parasaran pointed out that another Bench of the apex court in the matter relating to food subsidy had directed that computerisation be linked to the Aadhar card for transfer of food subsidy.

Senior counsel Anil Divan, appearing for main petitioner Justice K.S. Puttaswamy, opposed the modification of the interim order. He said the petitioner would have to file a reply to the Centre’s application.

4779 - Casting a backward glance after a court order – the UID project: Usha Ramanathan - Kafila

Casting a backward glance after a court order – the UID project: Usha Ramanathan

OCTOBER 5, 2013

tags: Aadhar, Nandan Nilekani, UID, usha ramanathan

by Nivedita Menon

Guest Post by USHA RAMANATHAN

On September 23, 2013, the Supreme Court ‘s directed that “no person should suffer for not getting the aadhaar card in spite of the fact that some authority had issued a circular making it mandatory”. Reacting to an argument of Mr Anil Divan, Justice Puttaswamy’s counsel, the judges added that “when any person applies to get the Adhaar Card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant”. The order regarding making the UID mandatory  was made in the context of the questionable legality of the project, and the instructions being issued, as it has been in Maharashtra, that  teaching and non-teaching staff and judges of the High Court would not get their salaries unless they have a UID. The latter part of the order on `illegal immigrants’ echoes those who wanted, and got, an amendment to the Citizenship Act in 2003 authorising the creation of a National Register of Citizens. This was inherently illogical and opportunistic; for, the rhetoric of threat from the outsider drew upon the Kargil standoff in 1999, when it was Pakistan that was seen as sending in terrorists who needed to be identified and dealt with, but the politics of the day made the migrant from Bangladesh the `threat’. The Home Minister of the day saw them in every shadow. The UID project is a part of this enterprise.

The UID Project, with Mr Nandan Nilekani at its helm, has developed ambitions of its own in the four years since it was set by executive notification. In these four years, what observers and analysts have seen of the project has produced disturbing questions around what constitutes identity and how it will be established: [1]

Is the UID a card or a number?

Is the UID project about identity or identification?

Is it about control and tracking or transparency?

Is it about information or data?

Is it a unique identity (UID) or a “Know Your Customer” (KYC) tool?

Is the UID voluntary or mandatory?

Is the information collected kept on a government database or with private companies?

Is the UIDAI part of the state, or an entity that transits through the Planning Commission to become a private company when it reaches “steady state”?

Is the UIDAI a back office for the National Population Register (NPR), or is it a competitor in the race to enrol?

Is the UID part of a surveillance apparatus, or is it only to deliver entitlements?

Is biometrics unimpeachable or this an experiment?

Is it a game changer, as it is claimed in public rhetoric, or an app, as Mr Nilekani speaks about it in more spaces such as the World Bank?

Over the past four years, in the context of migration, what has been very worrying is the support that the UIDAI has received from those working with migrant workers.  Even as the project was being rolled out, Mr Nilekani and his team met groups working with migrant workers to tempt them with visions of a `portable identity’ which every migrant worker would carry, which would help them access entitlements and subsidies. At that time, some groups and networks did allow themselves to hope that the UID would indeed only be what they were told it would be. There was even an MoU that the National Coalition of Organisations of Migrant Workers signed with the UIDAI on 29 July, 2010, renewable after a period of two years. The Coalition signed on “to enable migrant workers and their communities throughout the country” to enrol for the UID. (By all accounts, that MoU has not been renewed; and very few enrolments were actually carried out under this MoU.)

Since the beginning of the UID project, its Chairperson, Mr Nandan Nilekani and his team have shown an indefatigable interest in `enrolling’ everyone on to the data base of the UIDAI. The Coalition appears to have had a faith, based on raised expectations, and not on evidence, that the project would produce an impeccable identity document that would protect migrant workers, and that would help them reach their entitlements and benefits wherever in the country they are.

A close scrutiny of the project has however revealed multiple facets of the project which cast doubt on the veracity of the claims made, and raises questions about the intent and consequences of the project. Since 2010, much has been researched, debated, analysed and written about the project. This is a project where

• There is still no feasibility study
• There is no cost:benefit analysis
• There is no law that protects the holder of the UID number from misuse and abuse, and it is by now clear that no agency is willing to take on the risk of liability for identity fraud or for wrongfully denying a person their identity
• There is no law of privacy. Instead, the UIDAI has been working overtime to effect `convergence’ of databases currently held in distinct silos, making surveillance, and social control, more than merely possible. There is no protection against tagging, tracking and labelling. And, the Natgrid, CCTNS, NCTC, PII, MAC are only some of a variety of other acronyms conjured up over the last 3-4 years which will give intelligence agencies an easy instrument for invading the lives and practices of people.

Also,

• The UIDAI `owns’ the data base,
• And expressly intends to profit from the sale of the data and of services linked to the data
• Mr Nilekani has chaired committees in the past three years which have recommended that the UID be made mandatory so that it will drive people to enrol; where data held by the government is proposed to be handed over to private agencies – they will be, the TAG-UP report says, private companies with a public purpose; profit making, not profit maximising. The first of these have already been set up – the GSTN Network. And data is to be the new property.

Most damaging to the project, and something that cannot but worry those working with migrant workers, biometrics, which is intended to be the way by which the identity of people will be established, is still in its infancy. In January-February 2010, the UIDAI put out a notice inviting a biometrics consultant to help the UIDAI decide how it could carry on with the project with the use of fingerprints and iris. The consultant was informed in the notice that “there is a lack of a sound study that documents the accuracy achievable on Indian demographics (i.e., larger percentage of rural population) and in Indian environmental conditions (i.e., extremely hot and humid climates and facilities without air-conditioning). In fact, it went on, “we could not find any credible study assessing the achievable accuracy in any of the developing countries. UIDAI has performed some preliminary assessment of quality of fingerprint data from Indian rural demographics and environments and the results are encouraging. The “quality” assessment of fingerprint data is not sufficient to fully understand the achievable de-duplication accuracy.” And so on.

In November 2011, more than a year after the enrolment had begun,  the Mission Director and DG of the UIDAI, Mr R S Sharma, said in an interview to Frontline in November 2011: “Capturing fingerprints, especially of manual labourers, is a challenge. The quality of fingerprints is bad because of the rough exterior of fingers caused by hard work, and this poses a challenge for later authentication. … Issuing a unique identity will not be a major problem. But authentication will be, because fingerprint is the basic mode of authentication.” This places migrant labour, especially in a difficult place, where if they are unable to authenticate because of what their work does to their fingerprints and, even, their iris, their identity would be in question.  In March and September 2012, a fingerprint authentication report – which talks of green, yellow and red fingers which are to be labelled and used for authentication – and an iris authentication report – which starts with the assumption that iris never changes, and neither age nor weathering affects the iris and bases its conclusions on this miracle of changelessness – send out alarm bells about authentication. And, more recently, this year there is a document that the UIDAI has put out admits that biometrics will need regular re-enrolling. Biometrics is, indeed, uncertain and untested technology. And the human body does change, by age, illness, accident, drug use, and a host of other circumstances.

This number contrasts starkly with a system where a photo-ID with the sarpanch’s signature, countersigned by the state labour department, and with the skill indicated on the face of the ID card, becomes the interstate migrant worker’s secure identity, gaining credibility with use. This is establishing an ID, not reducing the body to being a marker.

The UIDAI has been preoccupied with speedy enrolment; unseemly haste may mean that the information that is recorded about a person may be inaccurate and is likely to misidentify them, but this has not particularly worried the project authorities. The introducer system has collapsed. Biometrics is still in its infancy, and the reports produced by the UIDAI themselves suggest that there are huge gaps in possibility and performance. The UIDAI is already talking about re-enrolment at regular intervals. Why would faith in this system survive all this?

Speed in enrolment has given short shrift to accuracy, even to the point of distorting identity, and that does not seem to worry the project proponents at all. At his World Bank talk in April 2013, Mr. Nandan Nilekani said: An introducer “will say ‘I know this person, he’s Ram Singh approximately born in 1977’, so, we give a date of birth. He has a home, he has a home; otherwise, if he is a homeless person, we’ll give him an address c/o Homeless Shelter or whatever. Basically, then, the introducer stands as some sort of guarantee in some sense for that person. Then that person’s data is entered, and he gets an ID. So, that’s how these people get into the system… Remember, fundamentally you get only one ID in the system. So the ID that you give at the time of your enrolment is your name in this system for the rest of your life…which is why I refer to this as a 21st-century Ellis Island…what happened at Ellis Island, let’s say in the 19th century or Nova Scotia in Canada in the 19th century?

“You had all the boatloads of people coming from Europe, Eastern Europe, Croatia, Poland, wherever, Ireland, Italy, all that. And they would land at Ellis Island and they would have very complicated names. And the immigration officer would say, ah, no, I think from now on you be Sam David. And, from that day onwards, in the New World, he would be Sam David, no matter what his name was in the Old World. So, we do the same thing, you know. This person was out of the system, except physically he is in the same place, but virtually he is outside. He comes in and gets a name and that’s his name in our system for the rest of his life. So think of it as a 21st-century version of the Ellis Island.”

This is the project chief’s casualness about the vulnerable person’s identity. That should give us pause.

Mr Nilekani and his team have identified three stages that they have told us about:  enrolment, where all the initial emphasis has been so far and which is just about increasing the data base, and where speed is all and accuracy may be treated as an experiment. Seeding, by which every transaction, public and private, will have the UID number appended to it. And re-engineering, where systems will be changed to make them UID-compatible. In this framework of ambition for the project, it matters only a little to the project if `authentication’ does not work. Seeding will make convergence of the data about individuals easy to access – what the marketeer terms as `Know(ing) Your Customer’, and what the state can use in its surveillance projects such as the Natgrid. Re-engineering will make the system irreversible, which will mean that even when it fails, it must be made to work. Authentication failure will only affect the person who the system misidentifies or fails to identify.

This, it seems, is the nature of this beast.

A note on a reaction: In a post on the Sanhati website (`Anti-aadhaar litigants and the rhetoric of fear’ dated 28 September 2013, Mythri Prasad-Aleyamma trashes `anti-aadhaar’ `litigants’ and `campaigners’ as being `xenophobic’ and `potentially Islamaphobic’ . I am her direct target because of something she quotes was reported in the Tehelka. Ms Aleyamma wrote to me with her article, asking for a response. I checked, and found that a question had been inserted  which changed the meaning of what i had said in a conversation with their reporter. I explained this to Ms Aleyamma, contacted Tehelka, and they removed the question. Ms Aleyamma has, however, decided to leave her accusation essentially unchanged. These insinuations and unearned slurs are personal and can be ignored.

But a piece of information for the reader may set the record straight on how the litigation is being fought in court: the worry about illegal migrants getting legitimised through the issuance of the aadhaar enrolment is in Justice Puttaswamy’s petition. The other petitions before the court reflect other concerns, including what mandatoriness, and the project itself, is doing to people’s lives, to privacy, to lawlessness and to vulnerability. These generalisations about `litigants’ and `campaigners’ as villains, i humbly submit (to use language that the court allows us to use to dodge -rudeness) is misplaced.

——————————————————–

[1] I have explored these in a continuing series published in the Statesman, which have been archived at http://aadhararticles.blogspot.in/search/label/Usha%20Ramanathan

4692 - Aadhaar's purpose in doubt as SC says it's not mandatory - TNN

Aadhaar's purpose in doubt as SC says it's not mandatory

Dhananjay Mahapatra, TNN Sep 24, 2013, 05.35AM IST

NEW DELHI: The Supreme Court on Monday dealt a crippling blow to UPA's showpiece Aadhaar scheme by ruling that it can only be issued to those with proven Indian nationality and cannot be mandatory for accessing public services and subsidies.

"In the meanwhile, the Aadhaar card cannot be made mandatory. If anyone applies for Aadhaar card, then you have to verify whether he is a citizen of India or not. These cards cannot be issued to illegal migrants," said a bench of Justices B S Chauhan and S A Bobde as they frowned upon the unique identity numbers being issued without verifying the antecedents of individuals.

The move is a serious setback to the government's plans to transfer cash and subsidies directly into bank accounts of beneficiaries. Meeting the verification criterion laid down by the apex court could prove to be a tough task because only a small part of the population has proof of nationality such as a passport. That the Unique Identification Authority of India, an entity floated by UPA-2 for rolling out the ambitious Aadhaar scheme, is a lean body dependent on vendors only adds to the complication. The UIDAI enjoys no legal backing either.

However, the SC order may come as a respite to citizens who were harried by the growing demand of authorities to link delivery of a whole array of services and subsidies such as those for cooking gas to Aadhaar cards. In states like Delhi, even marriage registration is now dependent on Aadhaar. Given the huge number of complaints about access to the cards, the insistence has become a major irritant for households.

The court's order came on a petition protesting the issuance of Aadhaar cards to illegal migrants.

Before the bench passed the interim order on a PIL filed by retired Karnataka High Court judge K Puttaswamy, solicitor general Mohan Parasaran and additional solicitor general L Nageswar Rao put up a mild resistance saying the cards were issued on voluntary basis and clarified that it was never meant to be mandatory.

"The enforcement machinery is tightened. Just because one or two aberrations being reported by the media does not mean the Aadhar cards are being issued to all and sundry," Parasaran said

The law officers denied that the Centre had issued any direction to states to make Aadhaar cards mandatory even as petitioners' counsel Anil Divan and Shyam Divan cited the Maharashtra example where government employees have been ordered to get Aadhaar cards issued in their name so as to receive salary.

The counsel also alleged that Aadhaar cards were being issued to illegal migrants and made mandatory for getting gas connections and even registration of marriages, a charge denied by the Centre.

However, Shyam Divan countered saying that even the Bombay High Court registrar general's order asking all, including judges, to get Aadhaar cards were made to facilitate smooth transfer of salaries.

The bench wondered how such a direction could be issued when the Union government, the brain and financial power behind the scheme, was clear that it was a voluntary scheme.
After clarifying the voluntary nature of Aadhaar cards, the law officers requested the court not to pass an interim order restraining issuance of these identification cards to illegal migrants on the basis of their place of residence.

The bench said, "How does this order affect the Union government? If we say the Aadhaar cards must not be issued to illegal migrants, who gets affected? Why can't the government check whether a person is an Indian citizen or not before issuing the card?"

The court had issued notice on the PIL on November 30 last year. The petitioner had questioned the grant of UID numbers and Aadhaar cards to illegal migrants at a time when a bill to this effect, pending before Parliament, has already been rejected by the concerned parliamentary standing committee.

The PIL had requested the court to restrain the government from issuing UID numbers and Aadhaar cards till Parliament took a decision on the bill.

The petitioners, Justice Puttaswamy and another, said they had ascertained that the Unique Identification Number Project proposed to give UID numbers not only to citizens but also illegal migrants pursuant to a scheme framed by the government through an executive order of January 28, 2009.

Referring to several judgments of the Supreme Court on right to privacy of a citizen guaranteed under Article 21 of the Constitution, the petitioners said, "Collecting biometric information as a condition precedent for the issue of Aadhaar card is an invasion of right to privacy of citizens and thereby this can only be done by a law enacted by Parliament and hence, beyond the executive power."

4672 - SC's Aadhaar ruling - Much ado about nothing? - Business Standard

Nikhil Inamdar  |  Mumbai  September 24, 2013 Last Updated at 16:16 IST

SC's Aadhaar ruling - Much ado about nothing?

Does the Supreme Court's ruling on Aadhaar diminish the purpose of UPA's pet scheme?

Solicitor General Mohan Parasaran, appearing for the Centre in the PIL challenging the compulsory issuance of Aadhaar numbers said, the Aadhaar card was in any case voluntary, and so, no interim directions were required by the court which in a ruling yesterday said that the scheme cannot be made mandatory for availing public services and subsidies.

ALSO READ: Aadhaar not must for availing of benefits: SC

Parasaran is technically correct. The government and UIADI Chairman Nandan Nilekani have in fact repeatedly told anti-Aadhaar lobbyists that it is not an obligatory card and so their allegations are invalid. But Nilekani in the past is reported to have made a remark saying Aadhaar will become ‘ubiquitous’ in the future, implying that there will be no escaping it if citizens were to avail of certain government services and subsidies. 

Empirical evidence suggests that it is already happening. Aadhaar is reportedly being made mandatory for registration of property and marriages in states like Maharashtra and Delhi and authorities have been seen demanding the card for linking services such as cooking gas subsidies as well. Schools, presumably under the direction of the government, have also been demanding that parents get their kids registered compulsorily. In fact the backbone of the government’s ambitious direct cash transfers program is said to be the Aadhaar card, which will act as a link between the government and the beneficiary by linking the Aadhaar number of the recipient to his/her bank account to ensure that subsidies are targeted properly. 

Given that the government thinks of the UIDAI as a critical enabler for many of its projects, the only rational option before it now, seems to be to get the National Identification Authority of India Bill, which gives statutory powers to the UIADI, passed. This has been stuck in parliament due to opposition by the Parliamentary Standing Committee on Finance headed by Yashwant Sinha and the government hasn’t moved on it because it felt the UIDAI could continue functioning legally without legislative backing. With that assumption now challenged, giving Aadhaar legal sanctity becomes critical.

 One tricky option to tiptoe around the court order and quash the growing hullabaloo among activists around its illegality would be to bring about an ordinance. But that would be difficult say legal experts. “That would not happen. And even if it does it will be challenged and there will be a big hue and cry because the Parliamentary Standing Committee has rejected the bill in its report. Also the government has come forward and said itself that it is voluntary, so how can they bring about an ordinance?” says Senior Advocate Anil Divan who represented the petition filed by retired Karnataka High Court Judge KS Puttaswamy. 

It is unclear what the government will do now. But the bigger question is - what could be the potential impact of this Supreme Court ruling, especially on schemes like the direct benefits transfers? Could it potentially cripple these reforms? 

“Aadhaar is basically a means to identify people and there are several other ways to do it. They may not be as perfect as the government claims Aadhaar to be, but that doesn’t mean the SC ruling makes cash transfers impractical” Professor VS Vyas, Member of the PM’s Economic Advisory Council said. 

Reetika Khera, Economist and Assistant Professor at the Indian Institute of Technology, Delhi who has done seminal work in the area agrees. “The DBT scheme doesn’t really depend on Aadhaar contrary to popular belief. The critical thing is to improve bank penetration, develop electronic banking at the last mile and do basic level of computerization. Aadhaar is almost superfluous and without improvement in these areas it is actually meaningless. What the government is doing by forcing people to enroll and excluding those who don’t, is making Aadhaar a tool of exclusion rather than a tool of inclusion” 

Banking penetration has increased significantly in the last 3 years, but over half of India still continues to remain unbanked and of 6 lakh villages only 36,000 are covered by brick and mortar bank branches according to RBI data. 

4664 - Supreme Court asks Centre not to make Aadhaar cards mandatory - India Today

Supreme Court asks Centre not to make Aadhaar cards mandatory

MAIL TODAY BUREAU   |   MAIL TODAY  |   NEW DELHI, SEPTEMBER 24, 2013 | UPDATED 13:02 IST

Read more at: http://indiatoday.intoday.in/story/aadhaar-cards-supreme-court-uidai-illegal-immigrants-anil-divan/1/311349.html

Dealing a huge blow to the Centre's ambitious scheme to link essential services with the Aadhaar card, the Supreme Court on Monday asked the Centre not to make it mandatory for availing of government benefits and services. 

Pointing at the shortcomings of the Aadhaar scheme rolled out by the Unique Identification Authority of India (UIDAI, a Bench headed by Justice B.S. Chauhan said UID number should not be necessary for essential services such as gas connections, vehicle registration, scholarships, marriage registration, salaries and provident fund.

The court also said the Aadhaar cards should not be issued to illegal immigrants as it would legitimise their stay in the country. There have been reports of a huge number of Bangladeshi illegal immigrants being issued Aadhaar cards.

Big blow

The court order could deal a blow to the Centre's 'gamechanging' Direct Benefits Transfer (DBT) scheme - through which it transfers welfare payments directly to the Aadhaarlinked bank accounts of beneficiaries - at a time when the Congress is hoping to cash in on the project for electoral gains.

The apex court was hearing a batch of petitions against the decisions of some states to make Aadhaar cards compulsory for availing various facilities, including Provident Fund disbursals and marriage and property registrations.

Alleging political gains, senior counsel Anil Divan told the bench of Justices Chauhan and S.A. Bobde that indiscriminate issuance of Aadhaar numbers to all residents, including illegal migrants, created a serious threat to national security.

Stay

Linking the Aadhaar number to getting benefits of welfare schemes under the Food Security Bill, cooking gas subsidy, PF and direct benefit transfer made it mandatory in nature, Divan, representing petitioner and former Karnataka High Court judge K.S. Puttaswamy, said. The petitioner has sought a stay on the implementation of the scheme.

Those opting for Aadhaar are required to give personal information including biometrics, iris and fingerprints, which infringes the fundamental right to privacy under Article 21, Divan said. The bench was also informed that there were no safeguard to protect the personal information and no provision for penalties if it comes to public domain.

Opposing the plea, Solicitor General Mohan Parasaran said Aadhaar card was purely voluntary and there was no need for interim directions. The Centre has said the consent of an individual is indispensable for Aadhaar.

Read more at: http://indiatoday.intoday.in/story/aadhaar-cards-supreme-court-uidai-illegal-immigrants-anil-divan/1/311349.html

4655 - Don't issue Aadhar cards to illegal immigrants, Supreme Court tells Centre - NDTV

Don't issue Aadhar cards to illegal immigrants, Supreme Court tells Centre

Indo-Asian News Service | Updated: September 23, 2013 21:45 IST

New Delhi: Even as the government maintained that possessing an Aadhar card was optional, the Supreme Court today asked it not to issue the cards to illegal immigrants and not set them as a pre-condition for availing welfare schemes.

Alleging political gains to the ruling party in the issuance of Aadhar card, senior counsel Anil Divan told the top court bench of Justice BS Chauhan and Justice SA Bobde that indiscriminate issuance of Aadhar numbers to all residents, including illegal migrants, created a serious threat to national security.

Taking on the government's claim that taking Aadhar card was a voluntary choice, Mr Divan said that linking the Aadhar number to getting benefits of social welfare schemes under the food security bill, cooking gas subsidy, Employees Provident Fund and direct benefit transfer under social welfare schemes made it mandatory in nature.

Resisting the plea for interim directions by the petitioner, Solicitor General Mohan Parasaran told the court that Aadhar card was purely voluntary and there was no need for interim directions.

Mr Divan told the court that the individuals obtaining Aadhar number were required to give personal information that included biometrics, iris and fingerprints, which infringed the fundamental right to privacy under Article 21 of the constitution.

The senior counsel told the court that there was no legislative backing for obtaining personal information and the proposed legislation that government had introduced was rejected by the parliamentary standing committee on finance.

The court was told that there were no safeguard to protect the personal information of the citizens and there was no provision for penalties if the same comes to public domain.

The provision for collecting and retaining the biometric data had been held to be impermissible in by the top courts in Britain and France, the court was told.

The court was told that linking the flow of the benefits of several welfare schemes, including salaries to the teachers, had resulted in the denial of the same to the people who were otherwise entitled to it.

4556 - SC to examine PIL on ‘voluntary’ nature of Aadhaar cards - Indian Express

SC to examine PIL on ‘voluntary’ nature of Aadhaar cards

Utkarsh Anand : New Delhi, Tue Sep 03 2013, 01:17 hrs

The Supreme Court Monday set out to examine the "voluntary" nature of the Aadhaar cards even as various states embarked upon making it compulsory for a range of formalities, including marriage registration, disbursal of salaries and provident fund among other public services.

A Bench of Justices B S Chauhan and S A Bobde asked all the parties to file their responses to the petitions, challenging the legal validity of the Aadhaar scheme of the Unique Identification Authority of India, and settled the matter for final hearing after two weeks.

Senior advocate Anil Divan, arguing for the PIL filed by Justice K S Puttaswamy, a retired judge of the Karnataka High Court, urged the court to also hear him on the interim application for an immediate stay on the implementation of the scheme.

"The scheme is complete infraction of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty). The government claims that the scheme is voluntary but it is not so. Aadhaar is being made mandatory for purposes like registration of marriages and others. Maharashtra government has recently said no marriage will be registered if parties don't have Aadhaar cards," he said.

Divan asserted that the issues required a meticulous judicial examination by the Bench since it raised questions not only over the government's authority to implement the scheme, but also highlighted the perils of the manner of its implementation. The Bench accepted Divan's arguments and agreed to hear his contentions on the interim stay as well on the next date while saying that the pleadings should be completed by then.

Meanwhile, Additional Solicitor General L N Rao sought transfer of two similar matters from Bombay and Chennai High Courts. The court allowed his plea and tagged the two petitions with the current PIL.

In its reply, the Centre claimed that for an Aadhaar card, consent of an individual was indispensable and hence it was a voluntary project, with an objective to promote inclusion and benefits of the marginalised sections of the society that has no formal identity proof.