In 2009, I became extremely concerned with the concept of Unique Identity for various reasons. Connected with many like minded highly educated people who were all concerned.
On 18th May 2010, I started this Blog to capture anything and everything I came across on the topic. This blog with its million hits is a testament to my concerns about loss of privacy and fear of the ID being misused and possible Criminal activities it could lead to.
In 2017 the Supreme Court of India gave its verdict after one of the longest hearings on any issue. I did my bit and appealed to the Supreme Court Judges too through an On Line Petition.
In 2019 the Aadhaar Legislation has been revised and passed by the two houses of the Parliament of India making it Legal. I am no Legal Eagle so my Opinion carries no weight except with people opposed to the very concept.
In 2019, this Blog now just captures on a Daily Basis list of Articles Published on anything to do with Aadhaar as obtained from Daily Google Searches and nothing more. Cannot burn the midnight candle any longer.
"In Matters of Conscience, the Law of Majority has no place"- Mahatma Gandhi
Ram Krishnaswamy
Sydney, Australia.

Aadhaar

The UIDAI has taken two successive governments in India and the entire world for a ride. It identifies nothing. It is not unique. The entire UID data has never been verified and audited. The UID cannot be used for governance, financial databases or anything. It’s use is the biggest threat to national security since independence. – Anupam Saraph 2018

When I opposed Aadhaar in 2010 , I was called a BJP stooge. In 2016 I am still opposing Aadhaar for the same reasons and I am told I am a Congress die hard. No one wants to see why I oppose Aadhaar as it is too difficult. Plus Aadhaar is FREE so why not get one ? Ram Krishnaswamy

First they ignore you, then they laugh at you, then they fight you, then you win.-Mahatma Gandhi

In matters of conscience, the law of the majority has no place.Mahatma Gandhi

“The invasion of privacy is of no consequence because privacy is not a fundamental right and has no meaning under Article 21. The right to privacy is not a guaranteed under the constitution, because privacy is not a fundamental right.” Article 21 of the Indian constitution refers to the right to life and liberty -Attorney General Mukul Rohatgi

“There is merit in the complaints. You are unwittingly allowing snooping, harassment and commercial exploitation. The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a court for the purpose of criminal investigation.”-A three judge bench headed by Justice J Chelameswar said in an interim order.

Legal scholar Usha Ramanathan describes UID as an inverse of sunshine laws like the Right to Information. While the RTI makes the state transparent to the citizen, the UID does the inverse: it makes the citizen transparent to the state, she says.

Good idea gone bad
I have written earlier that UID/Aadhaar was a poorly designed, unreliable and expensive solution to the really good idea of providing national identification for over a billion Indians. My petition contends that UID in its current form violates the right to privacy of a citizen, guaranteed under Article 21 of the Constitution. This is because sensitive biometric and demographic information of citizens are with enrolment agencies, registrars and sub-registrars who have no legal liability for any misuse of this data. This petition has opened up the larger discussion on privacy rights for Indians. The current Article 21 interpretation by the Supreme Court was done decades ago, before the advent of internet and today’s technology and all the new privacy challenges that have arisen as a consequence.

Rajeev Chandrasekhar, MP Rajya Sabha

“What is Aadhaar? There is enormous confusion. That Aadhaar will identify people who are entitled for subsidy. No. Aadhaar doesn’t determine who is eligible and who isn’t,” Jairam Ramesh

But Aadhaar has been mythologised during the previous government by its creators into some technology super force that will transform governance in a miraculous manner. I even read an article recently that compared Aadhaar to some revolution and quoted a 1930s historian, Will Durant.Rajeev Chandrasekhar, Rajya Sabha MP

“I know you will say that it is not mandatory. But, it is compulsorily mandatorily voluntary,” Jairam Ramesh, Rajya Saba April 2017.

August 24, 2017: The nine-judge Constitution Bench rules that right to privacy is “intrinsic to life and liberty”and is inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution

"Never doubt that a small group of thoughtful, committed citizens can change the World; indeed it's the only thing that ever has"

“Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say.” -Edward Snowden

In the Supreme Court, Meenakshi Arora, one of the senior counsel in the case, compared it to living under a general, perpetual, nation-wide criminal warrant.

Had never thought of it that way, but living in the Aadhaar universe is like living in a prison. All of us are treated like criminals with barely any rights or recourse and gatekeepers have absolute power on you and your life.

Announcing the launch of the # BreakAadhaarChainscampaign, culminating with events in multiple cities on 12th Jan. This is the last opportunity to make your voice heard before the Supreme Court hearings start on 17th Jan 2018. In collaboration with @no2uidand@rozi_roti.

UIDAI's security seems to be founded on four time tested pillars of security idiocy

1) Denial

2) Issue fiats and point finger

3) Shoot messenger

4) Bury head in sand.

God Save India

Showing posts with label Apar Gupta. Show all posts
Showing posts with label Apar Gupta. Show all posts

Monday, June 25, 2018

13712 - ‘Next step is to widen public engagement ’ - The Hindu


NEW DELHI, JUNE 18, 2018 01:46 IST

               Model Bill is policy fix for privacy concerns

Advocate Apar Gupta, co-founder of the Internet Freedom Foundation (IFF), tells Soibam Rocky Singh about the model Bill — Indian Privacy Code, 2018 — which seeks to protect the privacy of individuals in India

What is the need for the model Bill? What are the immediate privacy concerns for an individual?
We believe the Indian Privacy Code, 2018, though a model Bill that will change and become better in time, puts through a comprehensive statute — a user-right focussed data protection law. This is a policy fix for recurring concerns and controversies, including issues such as Aadhaar, Cambridge Analytica, the social media communication hub and the Snowden revelations on mass surveillance.

How is this the model Bill different from what the Srikrishna Committee is looking into?
The Justice B.N. Srikrishna Committee is an ongoing process which is looking at the issue of data protection with a limited mandate, which may not include surveillance reform and may not fully protect user rights.
It has also had concerns on its lack of diversity and transparency in its proceedings.

While we have engaged with the committee and hope it adopts parts of the seven core principles for protecting privacy we have put out model language in the Indian Privacy Code, 2018, to further understanding and debate.

What prompted this model Bill since the 2017 Supreme Court privacy verdict?
The Indian Privacy Code, 2018, draws from several progressive texts, which include the Supreme Court privacy verdict. The seven privacy principles which give rise to the model Bill are based on texts and privacy verdicts, including the Justice A.P. Shah Committee report, the European Union’s General Data Protection Regulation and submissions made by civil society groups to the Srikrishna panel.

What is your next step?
Our next step is to widen public engagement and feedback on the model Bill. It is important to remember that this is the first draft which will improve as more people participate and give suggestions on how to make it better. Thereafter, we plan on parliamentary engagement strategies to ensure that India gets a comprehensive data protection law soon that fully protects our privacy.

Many privacy concerns are linked to the Aadhaar Act. Does Indian Privacy Code, 2018, address them?

The Indian Privacy Code, 2018, has an overriding effect on the Aadhaar Act.... It will, for instance, bring in principles of purpose limitation and the office of the privacy commissioner will be able to issue directions to the UIDAI.

13711 - Privacy advocates seek stronger laws - The Hindu


NEW DELHI, JUNE 18, 2018 01:45 IST

A citizen advocacy group has put together a model Bill that focuses on user rights, data protection

The Cambridge Analytica scandal and the Aadhaar database security concerns have provoked a citizen advocacy group to launch a campaign to protect the privacy of individuals in India.
A set of lawyers and policy analysts have put together a model Bill — the Indian Privacy Code, 2018, — with an overriding effect over the Aadhaar Act. The initiative, backed by the Internet Freedom Foundation (IFF), is looking to garner public awareness and nudge the government into adopting a strong law focused on user rights.

The model Bill envisages a law that will prevent some of the fundamental features of the Aadhaar Act from allegedly operating against citizens. This, the advocacy group expects, will shift power from the Unique Identification Authority of India (UIDAI) to the people.

Advocate Apar Gupta, a co-founding member of IFF, said fundamental features of the Aadhaar Act make its use mandatory while being a universal digital ID not tied to a specific purpose.

Sensitive form of data
“It relies on biometrics, which are an incredibly sensitive form of data. It results in mass surveillance as precondition to availing essential services. Due to its architecture, it makes people vulnerable to data breach and identity theft,” Mr. Gupta said.
However, the model Bill seeks to allow people the option of knowing how much of their data are collected, what information is parted with and what are its consequences. More importantly, it will clearly demarcate an option for the people to refuse consent. This undercuts the Aadhaar Act but more importantly the administrative practices which have resulted in making it mandatory, Mr. Gupta said.

IFF members were also part of the ‘Save the Internet’ campaign that was instrumental in pushing back Facebook’s Free Basics in India.

The advocacy body said its latest campaign, ‘Save Our Privacy’, was to make sure that India gets a privacy and data protection law that protects the fundamental right to privacy.

Privacy law
There is no separate law in India on privacy and data protection. While many drafting efforts have been made since 2010, little has come out of it. In 2012, an Expert Group on Privacy, chaired by former Delhi High Court Chief Justice A.P. Shah, had submitted a report to the Planning Commission. The report had recommended passing a law that makes privacy safeguards technology-neutral and applicable to both government and private sectors.

During the Aadhaar hearing before the Supreme Court in mid-2017, the Centre had constituted a committee of experts under the chairmanship of former Supreme Court Justice B.N. Srikrishna. This committee had released a White Paper and is expected to recommend a draft law to the Ministry of Electronics and Information Technology.

A nine-judge Bench of the apex court had last year declared privacy as intrinsic to life and liberty, and an inherent right protected under the Constitution. This means that an ordinary citizen can now directly approach the court in case of violation of his/ her privacy. The verdict armed the common man against unreasonable State intrusions and protected informational privacy in a digital age.

During the hearing, the top court had expressed apprehensions against the State passing on personal data collected from citizens to private players.

Privacy commission
The model Bill is built on seven progressive privacy principles, including use and purpose limitation (personal data collected for specified purposes cannot be further processed for other purposes) in collection and processing of data. It said a strong and independent privacy commission was necessary to ensure that data protection rights are enforced. The model Bill provides the privacy commission wide powers of investigation, adjudication, rule-making and enforcement.

The model Bill said the government, its arms, bodies and programmes should be made compliant with the privacy protection principles through a data protection law. “We support the use of digital technologies for public benefit. However, it should not be privileged over fundamental rights,” the advocacy group said.

Mass surveillance
“The government is responsible for delivery of many essential services to the public. These services must not be withheld from an individual due to such individual not sharing data with the government...Withholding services on the pretext of requirement of collection of data effectively amounts to extortion of consent. Individuals cannot be forced to trade away data and citizenship at the altar of being permitted to use government services and access legal entitlements on welfare,” the advocacy group said.

The group said the data protection law will have to limit mass surveillance as it contravenes the principles of necessity, proportionality and purpose limitation. It said that evidence gathered illegally, such as telephone intercepts without valid tapping orders, is inadmissible as proof in legal proceedings. To ensure further accountability, all such orders need to be communicated to the person who was surveilled.

Collection of data
The model Bill seeks to ensure that no government or private entity collects sensitive personal data without consent from an individual. The individual will have the right to obtain information from the data controller. This information will include purposes of storage and processing; categories of personal data; recipients to whom personal data have been or will be disclosed; the right to lodge a complaint with a supervisory authority; and existence of automated decision-making.

More importantly, the individual will have a right to request erasure and destruction of data at any time, and data controllers and processors will have to comply with such requests within a fixed time frame.

Offences and penalties
The model Bill also seeks to provide punishment for those found illegally collecting, receiving, storing, processing, disclosing or otherwise handling any personal data. Punishment for this offence may include a fine of ₹1 crore and a three-year imprisonment. Even illegal surveillance of another person will be liable to a fine, which may extend to a fine of ₹10 crore and a five-year jail term.


The foundation has sent an e-mail to the Srikrishna Committee, with a copy of the model Bill. It said this was a policy fix for recurring concerns and controversies, including issues such as Aadhaar, Cambridge Analytica, the social media communication Hub and Edward Snowden’s revelations on mass surveillance.

Wednesday, June 20, 2018

13676 - Data code, drafted by privacy petitioners - Telegraph India

Our Special Correspondent Jun 09, 2018 00:00 IST

New Delhi: A group of lawyers and petitioners fighting the Aadhaar case in the Supreme Court have drafted an "Indian privacy code", fearing the Data Protection Bill being drawn up by the Justice B.N. Srikrishna Committee might not adequately take into account an individual's fundamental right to privacy.

The draft code was submitted to the committee on Friday and put out for public consultation through an online medium. The effort is part of a "Save Our Privacy" movement in an age when data is regarded as "the new oil" as driver of industry.
Petitioners have challenged the Aadhaar scheme's constitutionality in the Supreme Court on the ground that it violates a citizen's privacy, and that the data collected under the scheme by various agencies is at risk of leaks.

The latest controversy over Cambridge Analytica, which has been accused of misusing the private information of tens of millions of Facebook users, has further confirmed their fears.
The draft code seeks to set out conditions under which surveillance and interception of communications may be carried out, and advocates the formation of a "privacy commission".
It also takes on board the concerns expressed by RTI activists after the Supreme Court verdict last year declaring privacy a fundamental right. The activists feared that the government might cite privacy as a reason for denying information under the RTI Act.

Apar Gupta, one of 10 lawyers who drafted the code, told The Telegraph that it states that individual rights are well served by the Right to Information Act.

"So, information commissioners should be exempted from interference or control by the privacy commissioner. Specific and express language should be used for providing such exemptions and maintaining the independence of information commissioners."


Last November, many of those involved in drafting the code and others had urged Justice Srikrishna to include in the commission eminent citizens who had been consistent in advocating people's rights.

Sunday, September 24, 2017

12108 - Is it really mandatory to link Aadhaar with bank account and mobile - TNN



Ramarko Sengupta | TIMESOFINDIA.COM | Updated: Sep 22, 2017, 19:21 IST

HIGHLIGHTS
  • The legality of Aadhaar is under cloud, says Supreme Court lawyer Apar Gupta
  • Even the Aadhaar-PAN issue will again be argued in November
  • By November legal clarity on whether Aadhaar is unconstitutional or not is expected to emerge

We have all been getting repeated reminders from mobile service providers and banks via text messages and other means that it is mandatory to link our phone numbers and bank accounts with the 12-digit unique identification number Aadhaar. Failing which, our bank accounts and mobile numbers will cease to exist, if the seeding is not done within the stipulated deadline-- December 31, 2017 for bank accounts and February 28, 2018 for mobile numbers.

While the government has indeed directed telecom companies and banks to get this done, is this really mandatory or even legal? 

We spoke to Supreme Court lawyer Apar Gupta to understand the legalities around this. 

For starters, before the deadline, banks and mobile service providers cannot disable your account or number, says Gupta. As far as the legality of the directive is concerned, he says "It's under a cloud and there are right now doubts that exist about the legality of the Aadhaar system." 

The 'cloud' that Gupta mentions is formed from the landmark Supreme Court ruling in August which states that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian constitution. 

"The right to privacy judgement got all of us very excited and there were questions which came up right after the judgement that what is its impact on Aadhaar. For this lawyers then went to the Supreme Court and said that you now have the right to privacy firmly established under the Constitution and now you need to apply it to the pending court cases which challenge the Aadhaar scheme. 

Now, a lot of these court cases also challenge Aadhaar specifically being linked to a lot of government services which are now requiring it as a precondition for the service itself," says Gupta who had argued for petitioners in the Right to Privacy case and also represents those challenging Aadhaar. 

These cases are due to be heard in November which is prior to the seeding deadlines, adds the lawyer who is a vocal critic of the Aadhaar scheme over concerns around security and privacy. 

So, by November some legal clarity on whether Aadhaar is unconstitutional or if it's legal and justified is expected to emerge. This in turn will obviously have a bearing on whether all of us indeed need to get our Aadhaar seeded with our bank accounts and mobile numbers. 

"People who believe that Aadhaar opens them up to a large array of concerns including privacy, profiling and even identity theft they should hold on. But again this is a very personal call each person has to take after they asses where they stand on this issue and how they personally assess the level of impact it's going to cause them," says Gupta. 

It would be interesting to look back at the Supreme Court's judgement in the Aadhaar- PAN linking case here (which was delivered a couple of months before the right to privacy verdict), where the top court stated that while the government was right in asking for Aadhaar to be linked with the 10-digit alpha-numeric PAN, it was too harsh a punishment to deactivate someone's PAN altogether. It results in the "civil death" of a person as they are not able to function effectively in society, the court had stated. Having your bank account and mobile number disabled would also similarly result in "civil death" opines Gupta.

The Aadhaar-PAN issue will again be argued in November as it came before the right to privacy judgement, Gupta says. 

TOP COMMENT
Modi and co didn't launch aadhar project so they will not know how to fix it's shortcomings or legally defend it...team modii only knows how to take credit for everything good done by others (aadhar, isro) while blaming others for everything bad...modi basically is just an insecure attention seeking actor...
Ivan Bigger

The government on its part wants to link almost all essential services to Aadhaar to plug leakages and gaps that exist within the system as India moves towards digitisation. The Centre seems to believe that Aadhaar could be that proverbial 'silver bullet' that takes down terrorism, money laundering, black marketeering and other frauds, all at once.

Every resident who has an Aadhaar has their biometrics (fingerprints, iris scan) linked to the 12-digit unique identity. According to the government, over 99 per cent of adults in India are enrolled in the program, with nearly 90 per cent of the entire population coming under its fold.

Tuesday, September 12, 2017

12026 - INDIA’S BIOMETRIC DATABASE IS A DYSTOPIAN NIGHTMARE -News.Vice



India’s biometric database is a massive achievement and a dystopian nightmare

By David Gilbert Sep 7, 2017

Seven years ago nearly 400 million people in India did not exist in the eyes of the government. They were “ghosts” who had no identity and no way of getting one, says Sahil Kini, one of the architects of India’s controversial Aadhaar database. In a country trying to modernize on the fly and take its place among the world’s superpowers, this massive yet unknown population presented a huge problem.

So the Indian government set out on an ambitious course to build Aadhaar, the world’s largest biometric database, which would not only allow these people to participate more fully in society but also become a shining beacon of technological achievement for the rest of the world.

“What’s forgotten is that before Aadhaar was built there were 400 million people in India that did not have any form of identity; they were ghosts in the system,” Kini told VICE News. “So if you had to give them any kind of subsidy, you couldn’t, because they didn’t exist on paper.”

But as the database grew to include almost all of India’s 1.3 billion citizens, cracks began to appear, and in recent months those cracks have become chasms. Now more and more Indians say they worry that what the government actually created in Aadhaar is an all-seeing surveillance apparatus that has serious holes in its security and can be used to monitor all aspects of their lives.

India’s Supreme Court seems to agree, and its landmark ruling in August could derail the country’s crowning technological achievement. The court’s declaration that all citizens have a fundamental right to privacy presents a serious problem for India’s  government, which has pushed aggressively to make enrollment in Aadhaar mandatory for most everyday services — including filing tax returns, buying a phone, and obtaining a passport.



A villager goes through the process of a fingerprint scanner during Unique Identification (UID) database system in the Pathancheru village, in Medak district of the southern Indian state of Andhra Pradesh April 27, 2010. ps the biggest challenge is smudged fingerprints.
REUTERS/Krishnendu Halder

“What is emerging is that [Aadhaar] is being used to create a panopticon, a centralized database that’s linked to every aspect of our lives — finances, travel, birth, deaths, marriage, education, employment, health, etc.,” Reetika Khera, an Indian economist and social scientist, told VICE News.

Security concerns have plagued the system for years, but in recent weeks criticism has grown deafeningly loud. Earlier this month, as part of the Supreme Court case on privacy, an activist’s freedom of information request suggested that foreign firms were being given “full access” to the classified data — including fingerprints and iris scans.

The Unique Identification Authority of India (UIDAI), the agency that administers the system, strongly denied these claims, as it has done routinely in the face of criticism.
“UIDAI, once and for all, wants to reassure that Aadhaar data is fully safe and secure and UIDAI data center has robust uncompromised security 24x7x365,” a UIDAI spokesman told the Times of India Wednesday.

When contacted by VICE News, the UIDAI said its CEO, Dr. Ajay Bhushan Pandey, was too busy to answer any further questions about the security issues, and they didn’t respond to emailed questions.

“What is emerging is that [Aadhaar] is being used to create a panopticon.”

The rise in public angst can be directly tied to Aadhaar’s expanded presence in the upper classes of Indian society. Far from its humble beginnings helping India’s vulnerable access badly needed government benefits, Aadhaar now touches nearly all aspect of society — applying for a passport, voting, opening a bank account, purchasing a car. The system now also registers your death.

“The reason why Aadhaar is now becoming an issue in the national media — and internationally, too — is because the problems with it are now affecting urban, educated, middle- and upper-class Indians,” Khera said.

“A TURBOCHARGED SOCIAL SECURITY NUMBER”
Launched in 2009, Aadhaar is a unique 12-digit number issued to each Indian citizen. Its creator, Nandan Nilekani, an Indian billionaire and former CEO of IT services giant Infosys, describes it as a “turbocharged version of the Social Security number.”

The number is linked to a citizen’s most personal information: name, address, date of birth, gender, as well as biometric information like fingerprints and iris scans. When signing up for a new bank account, for example, citizens typically now scan their fingerprint in order to verify their identity rather than showing an ID card or passport.

The government continues to claim that enrolling in the system is not mandatory, but increasingly, if you want do anything in India, you need to be registered with Aadhaar.

Villagers crowd inside an enrolment centre for the Unique Identification (UID) database system at Merta district in the desert Indian state of Rajasthan February 21, 2013.

“Aadhaar today is the hallmark of a confluence of interests of the state and the private sector which take away control from individuals and erode their liberty to make choices,” Apar Gupta, founder of the Internet Freedom Foundation, told VICE News. “It is building a massive surveillance apparatus in India that cuts against the grain of its democratic moorings.”

The latest new development has been the government’s willingness to grant private companies greater access to the system. Microsoft, for example, already taps into the database to confirm the identity of people using a version of Skype designed specifically for the Indian market. And Airbnb confirmed to VICE News that it is looking into Aadhaar as a potential option for verifying hosts. For now the company said it is testing the system with “a limited universe of hosts.” Uber also has been linked to the system, though when reached for comment, the company declined to provide any insights one way or the other.

Critics say this new phase of the system will allow the government an even greater ability to spy on its citizens and let private companies profit off valuable personal information. The government denies it has any access to the information held by these private companies, but the deals signed between the two parties have not been made public.

THE DATABASE WILL BE HACKED
The Indian government has been slow to alleviate the concerns of activists and security experts who claim the system is vulnerable to cyberattacks. It has not allowed an independent audit of the security systems to be conducted, citing national security concerns. For one security expert, this lack of transparency is a major concern.

“We are told that the database is securely encrypted, but in the absence of a public security audit, nobody knows for sure,” an Indian security expert who works for a major U.S. technology company told VICE News. He asked to remain anonymous because he was not authorized by his employer to speak on the record.

“When this database is hacked — and it will be — it will be because someone breaches the computer security that protects the computers actually using the data.”
“That’s not helpful because the Indian government does not have a good track record with cybersecurity, as evidenced by the numerous daily breaches and leaks,” he said. “Indian government servers are consistently hacked.”

The government insists Aadhaar’s data center is “robust and uncompromised,” but by putting an entire country’s information in one place, they’ve made one massive target for hackers. Even if the security at the data center is as robust as the government claims, that may not be enough, given how many services are now accessing the data.

“When this database is hacked — and it will be — it will be because someone breaches the computer security that protects the computers actually using the data,” renowned cryptographer Bruce Schneier recently told Buzzfeed.

Even if the government did submit to an independent audit of how the data is collected, transmitted and stored, it would still run into one undeniable roadblock: It has no one to do it.
“The problem is that India simply has no laws or regulations governing how personal data is collected, data such as the metadata collected by mobile operators, financial data collected by banks, medical records collected by hospitals,” Kini said.

Because India does not have a privacy law, there’s no legal framework in place to create an independent authority who could legitimately conduct such an audit.

NO LEGAL BASIS FOR AADHAAR
Efforts to enact a Personal Data Protection Bill have been in the works since 2006, and as far back as 2010 Aadhaar’s founder said he’d support a law that protects the data collected through the Aadhaar system. But nothing has materialized.

Further, a 2012 Supreme Court ruling determined that the government was implementing Aadhaar without any legislative backing. Unconcerned, the UIDAI continued to enroll citizens anyway, doing so with scarce legal precedent and no legislative backing. (Only in 2016 did Aadhaar finally receive legislative backing from India’s Parliament, by which time nearly 1 billion people had already been enrolled.)  

Under Prime Minister Narendra Modi, the government has grown even more aggressive when it comes to pushing Aadhaar forward, making it mandatory on 22 massive government schemes in the first 60 days of 2017.

The government has said it’s willing to advance Aadhaar beside a privacy law, but given that it recently argued before the Supreme Court against the fundamental right to privacy, many critics doubt its true intentions.

“It is really about ugly ambition, and a deep disrespect for people.”

And the issue isn’t going away. Privacy breaches are already happening on a daily basis. Leaks have become commonplace as the number of services demanding Aadhaar, and the number of new enrollees, grows. The public’s concern turned to outrage in March when a government-authorized Aadhaar enrollment center published the personal details of former Indian cricket captain MS Dhoni — one of the most famous people in the country.

UIDAI’s leadership appears unconcerned with the breaches, insisting a leak like Dhoni’s wasn’t a major problem because it’s just a number. “Aadhaar is not a secret number like your password or PIN that can materially affect your life tomorrow if it is leaked without your knowledge,” Dr. Pandey said in July while revealing that 4,700 Aadhaar operators had been fined for enrollment violations — such as attempting to charge for enrollment or failing to adequately protect the data — in the past seven months.

Pandey’s argument doesn’t hold water, critics say. Just look at the U.S., where criminals have used Social Security numbers to commit fraud for decades. But critics say Pandey’s argument is especially dubious when it comes to India’s most vulnerable population, those Aadhaar was originally created to help.  

For India’s illiterate, who account for nearly a fifth of the population, systems like Aadhaar become less a development tool and more a potential source of frustration and abuse. “In such a society, to impose an infrastructure that requires technical, digital, and legal literacy is an unfair demand and also an invitation to fraud on the most vulnerable people,” Khera said.

Usha Ramanathan, an expert on law and poverty, said the relentless push to universalize Aadhaar despite its many technical and ethical problems came down to two things: “It is really about ugly ambition, and a deep disrespect for people.”

Wednesday, September 6, 2017

11972 - The Privacy Battle Over the World's Largest Biometric Database - The Atlantic

A new ruling could jeopardize India’s controversial collection of citizens’ fingerprints, photographs, and iris scans.

Women in the Indian state of Rajasthan enroll in Aadhaar in 2013.-- Mansi Thapliyal / Reuters


In 2009, with little attention from abroad, the government of India launched a new identification program that has gone on to become the largest biometric database in the world. The program, known as Aadhaar, has collected the names, addresses, phone numbers—and perhaps more significantly, fingerprints, photographs, and iris scans—of more than 1 billion people. In the process, Aadhaar has taken on a role in virtually all parts of day-to-day life in India, from schools to hospitals to banks, and has opened up pathways to a kind of large-scale data collection that has never existed before.

The Indian government views Aadhaar as a key solution for a myriad number of societal challenges, but critics see it as a step toward a surveillance state. Now, the Aadhaar experiment faces a significant threat from the Indian Supreme Court—one that may prove to be existential.

In late August, the Supreme Court issued a unanimous decision that found, for the first time, a fundamental right to privacy in the Indian Constitution. The decision has been widely celebrated by Aadhaar’s opponents, who believe that the program is in conflict with the newly enshrined right. Soon, the Supreme Court will direct its attention to this very issue, and if they find that Aadhaar violates privacy rights, it will be up to lawmakers to rethink the entire program. But if the Supreme Court rules that the program is constitutional, then Aadhaar, already staggering in scope and ambition, will continue to grow.

When the Indian government first launched Aadhaar, it saw an opportunity to harness the country’s burgeoning technology sector to reduce corruption and streamline the delivery of government services. Prior to the advent of Aadhaar, the government has said it was plagued by problems managing its welfare programs, and lost millions of dollars each year as Indian residents either inserted fake names or their own names multiple times into the system in order to withdraw more than their fair share of benefits. With Aadhaar, the practice of accessing benefits became a simple matter of touching a fingerprint scanner. If the fingerprint matches the one on file, the benefit can be approved and administered. When it is working well, the process is comparable to unlocking an iPhone, and ensures that government benefits go only to the people who qualify.

Open to all Indian residents, Aadhaar was optional at first and associated with only a handful of government subsidies, including those for food and liquefied petroleum gas for cooking. It was targeted at those who needed help the most, particularly rural villagers who lacked official forms of identification, and were therefore unable to open bank accounts or access welfare programs in the past.

It has now become almost impossible to live in India without enrolling.
But over time, mission creep set in. Under the leadership of Nandan Nilekani, the cofounder of the outsourcing firm Infosys (whom Jon Stewart once welcomed as his new overlord on The Daily Show), Aadhaar was used as a way to apply data-driven improvements to a wide range of government and private-sector services. Aadhaar was soon linked to so many activities that it has now become almost impossible to live in India without enrolling. Participation in the program is a requirement, or will be soon, for filing taxes, opening bank accounts, receiving school lunch in the state of Uttar Pradesh, purchasing railway tickets online, accessing some public Wi-Fi, participating in the state of Karnataka’s universal health-care coverage, and benefiting from a wide range of welfare programs. The Indian Member of Parliament Jairam Ramesh has sarcastically described the program as “compulsorily mandatorily voluntary.”

The government authority responsible for administering Aadhaar declined to comment, but in an op-ed for The Indian Express, its CEO, Ajay Bhushan Pandey, wrote that the program has saved the government approximately $8 billion in the past two years alone (the World Bank has estimated that the figure is closer to $1 billion per year). Pandey says that the program has succeeded in improving the government’s capacity for reaching and serving people directly.

For many of the communities Aadhaar was designed to help—particularly the poor and the underserved—the technology hasn’t lived up to the sunny rhetoric, however. In a country with inconsistent internet outside of its large cities, remote towns struggle to get online to authenticate peoples’ fingerprints with the central database. Some enrollees insist that their satellite-internet access works only on cloudy days; others say it functions best when it’s sunny.

According to an analysis of government data by Reetika Khera, a professor of economics at the Indian Institute of Technology in Delhi, millions of people have missed out on government benefits because of Aadhaar. In some cases, that’s because those who are elderly or disabled are unable to walk to the distribution sites to verify their identities. Others, who do manual labor, find that their fingerprints are too weathered from years of physical exertion to scan correctly, and so are denied their food rations.

Nikhil Dey, one of the founders of the grassroots organization Mazdoor Kisan Shakti Sangathan, also studied the government’s data. He found that approximately 1 million people in the state of Rajasthan had been unfairly dropped from the government lists for food subsidies due to Aadhaar, and more than 3 million were unable to collect their designated grain allocations. In one district alone, Dey says, 1,350 out of approximately 2,900 people marked “dead” or “duplicate” were actually neither, but lost access to their pensions anyway.

Despite these implementation challenges, the scariest parts about the program for privacy advocates are its ubiquity and lax security. According to the technology engineer Anand Venkatanarayanan, when biometric information is used to access a service via Aadhaar, such as purchasing a new cell phone, the service provider receives that person’s demographic data (name, address, phone number), and the government receives the metadata—specifically, the date and time of the transaction, the form of identification used, and the company with which the transaction was carried out. That information can paint a fuzzy but intimate long-term picture of a person’s life, and raises concerns about both government surveillance and private-sector abuse.

There’s a kernel of fear that the program could turn a person’s identity into a prison.

There is already ample evidence of misuse. High-profile examples from the past several months have dominated news cycles: 210 government agencies published full names, addresses, and Aadhaar numbers of welfare beneficiaries; 120 million users’ Aadhaar information appears to have been leaked from the telecommunications company Reliance Jio (the company claimed the data was inauthentic); bank-account and Aadhaar details of more than 100 million people were disclosed through certain open-government portals; the government’s e-hospital database was hacked to access confidential Aadhaar information.

These disclosures may be most damaging for those who are already vulnerable. Apar Gupta, a lawyer on the team that challenged Aadhaar before the Supreme Court, is particularly concerned about many Dalits (previously the “untouchables” in the caste system) and migrant laborers who work as manual scavengers, entering sewers without protection to clean them by hand. It’s a dangerous occupation with a high fatality rate, and it can also bring immense social stigma. Gupta worries that Aadhaar will permanently stigmatize these individuals by allowing future employers, schools, banks, and new acquaintances to view their database information and judge them based on their socioeconomic standing. Social mobility in India could become even more difficult. So could hiding a pregnancy or a gender-reassignment surgery, or failing the eighth grade. In many of the objections raised about Aadhaar, there’s a kernel of fear that the program could turn a person’s identity into a prison.

The August 24 Supreme Court ruling seemed to address these concerns, making the case that privacy is essential for an individual to function in society. “Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion,” Justice Dhananjaya Y. Chandrachud wrote. In arriving at its decision, the Supreme Court rejected two previous decisions from the 1950s and 1960s that denied a right to privacy, and instead framed privacy as a “primordial” right that must be understood in the context of an interconnected world. The justices further emphasized the point by referencing international jurisprudence about privacy from the United States, Canada, South Africa, and the European Union.

That didn’t surprise Mishi Choudhary, the legal director of the Software Freedom Law Center, who noted that “we’re at a stage where technology is sweeping the planet in almost the same way. A lot of countries are looking to each other for guidance on how to adapt their jurisprudence to suit the current world.”

Over the last few years, Russia, Tunisia, Morocco, and Algeria have all expressed interest in the Aadhaar program, and according to reports, representatives from Tanzania, Afghanistan, and Bangladesh recently visited India to learn more about implementing an Aadhaar system of their own. As the Supreme Court once again prepares for hearings about Aadhaar, the world will be paying close attention.

ABOUT THE AUTHOR
  • NAMRATA KOLACHALAM is a writer based in Mumbai. During the Obama Administration, she worked at the White House, the Department of Energy, and the Department of Transportation.

Tuesday, August 22, 2017

11823 - Privacy is a solution - Apar Gupta


 
 Apar GuptaFollowLitigator & public policy professional. Alumnus @ColumbiaLaw @ForbesUnder30. Co-founder/Volunteer @internetfreedom. Author, “Commentary on IT Act” (Lexisnexis).
Aug 20


Privacy is a solution
Addressing common misconceptions on an imminent Supreme Court judgement that promises to be historic

Privacy has had many adversaries who doubt its meaning, applicability and utility. A powerful opinion piece by Raju Rajagopal last week marshals concern when it seeks to caution the Supreme Court against granting a right to privacy.

The problem with the right to privacy
The recently concluded Supreme Court hearings on Aadhaar and privacy pitted a quintessentially American idea of the…www.livemint.com


Privacy is a fundamental right which was applied by the Supreme Court for decades till a cloud on its existence was raised in 2015 in the midst of arguments in the Aadhaar case. After the conclusion of hearing last month, we can shortly expect a historic judgement on the scope and ambit of the right. Till we wait a spirited public debate has provided an opportunity to engage with some common misconceptions on privacy.

Problems with Aadhaar ? Easy as one, two, three.

The first and repeated allusion is of privacy being foreign to India. This subsequently is built to premise arguments of cultural relativity to pose that we as a country do not care about privacy — compared to western countries. Or worse, the poor have no conception of it. This widespread opinion is shared by many except those which have studied the subject. One notices a range of judicial decisions in the late at the turn of the 19th century itself when Indians make privacy claims.

For instance, in the case of Gokal Prasad v. Radho in 1888, a plaintiff complains that the doors of a neighbour’s house open up to a verandah and thereby intrude into his home’s privacy. This is not an isolated instance, and frequent claims for spatial privacy over the years are made in courts. This is backed up by research in recent years that suggests that Indian’s do care about privacy. Indications are found in several empirical and interview based studies such as those conducted by P. Kumaraguru at IIIT, Delhi.

It is not without reason that activists who have dedicated their entire lives to the service of the poor and marginal communities including sanitation workers and women rescued from trafficking are petitioners before the Supreme Court.

Andrew Mccracken ©

The second point of concern is born out of care for the administrative efficiency of the government which is later narrowed down to safeguarding the Aadhaar program. The proposition that a right to privacy will undermine administrative efficiency is little more than fear mongering. Developed countries, who are utilising cutting edge technology and advances in big data have realised that without adequate privacy protections they will be putting their citizens to incredible handicaps. Even otherwise there is little reason to doubt the capacity of Indian courts to judge conflicting considerations on the basis of reference to constitutional doctrine.

Our High Courts and the Supreme Court have often faced issues of balancing the right to privacy with other competing interests in the past. They have done it for more than 45 years, till the Government and the UIDAI disputed the fundamental right to privacy. Many of the cases concerned state and social interests such as midnight domiciliary visits by the police, sexual autonomy and gender rights such as the choice of single mothers not to disclose the name of the father, medical conditions that would invite social ostracism, indiscriminate telephone tapping of political leaders, narco-analysis of suspected offenders that force in-effect confessions etc. Many of these cases, the determination was not an absolute bar on state power, but moderating it with safeguards. Such restraints serve the larger public interest.

The third but not the final critique is the likely impact of privacy on open government, more specifically the Right to Information Act. This is a curious position to take given the right to information act itself has a chapter to safeguard privacy, in which the right of an individual is balanced against the public interest served by disclosure. This is determined on a case to case basis by information commissioners.

It is also relevant to consider that through cases such as Namit Sharma v. Union of India, the interplay between the fundamental right to privacy and the statutory protections under the Right to Information Act have been deliberated by the Supreme Court.

It must also be understood that privacy, rather counterintuitively by itself creates a legal obligation of informational accountability that is the purpose of open government. Due to such a right a citizen has the ability to demand from government how their data is collected, used and disclosed. However at present due to Aadhaar an opaque system has been built which is resulting in denial in entitlements and even making access to information harder for citizens.
A “one-time exception” for Aadhaar ?



Voices against privacy are more accurately voices for Aadhaar. Even though the Supreme Court is at present not deciding its legality, there is a fear that without a, “one time exception”, Aadhaar may be ruled as unconstitutional. These apprehensions are entirely justified. There is no reason for the Supreme Court to be bound by the immediate concerns of statecraft to moderate a constitutional right that will form the very basis of individual liberty for decades and future generations. While Aadhaar’s stated aims are to achieve constitutional objectives of better serving the poor it has to be through constitutional means.

Even otherwise Aadhaar is far from a social and economic panacea. Continued data breaches, rights deprivations, mass exclusion from entitlements such as rations, high arbitrariness in deactivation etc. require an urgent public consultation on the Aadhaar program. It is pertinent to mention that this Aadhaar Act that was incorrectly certified as a money bill was passed circumventing any public scrutiny or parliamentary checks.

In addition to such a consultation, a multi-stakeholder approach needs to be undertaken by the Committee of Experts formed under the Chairmanship of Justice Srikrishna. Justice Srikrishna is well known and regarded for a report on the 1992–3 Bombay Riots. This is why the composition of the committee being dominated by government and those who have expressed public positions against privacy comes as a disappointment.

The drafting India’s privacy law without any diversity within the committee is sure to tilt the proceedings despite the best intent of the chair. To be clear there is not one civil society organisation or academic present to achieve balance. The composition of the committee does a disservice to the stature of Justice Srikrishna.

Stepping back, but looking ahead at the Supreme Court we can draw some lessons from the final address of Dr. B.R. Ambekar to the Constituent Assembly when he stated that, “[w]ithout equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative.” Imagine economic prosperity and even security without the ability to enjoy it. That is a world that gives up on civil rights. A right to privacy will guard liberty and help in securing equality through a path that does not cause fear and coercion. To caution against such a judgement due it’s likely impact would be privileging Aadhaar over the Constitution of India.

Monday, August 7, 2017

11729 - Rhodes scholar to Carnatic singer, meet 4 young lawyers in privacy fight - Indian Express

Rhodes scholar to Carnatic singer, meet 4 young lawyers in privacy fight

(From left) Gautam Bhatia, Prasanna S, Kritika Bhardwaj and Apar Gupta outside the Supreme Court. Tashi Tobgyal

Prasanna believes that technology ruling lives can only be deemed as fair if it is “proveably so and nothing in Aadhaar has been able to convince me of that”.

Written by Seema Chishti 
New Delhi | Updated: August 7, 2017 10:11 am

AS THE Supreme Court examines whether privacy is a fundamental right, a community of young lawyers has taken it upon themselves to spread the word — that the right to privacy is “non-negotiable”. So, from sitting through every court hearing to live-tweeting proceedings, from taking on the Centre when it argues that the Constitution does not provide for privacy as a fundamental right to breaking down the web of legalese around the debate, these lawyers are trying to help shape the architecture that will govern Indian lives in the age of unique IDs, technology and machines.

Prasanna S, Apar Gupta, and Kritika Bhardwaj are assisting senior counsel Shyam Divan, who is representing four privacy petitioners, including Shanta Sinha, the former head of the National Commission for the Protection of Child Rights, and Magsaysay awardee Bezwada Wilson. Gautam Bhatia is assisting another senior lawyer, Arvind Datar, who is arguing for the Election Commission and for privacy as a fundamental right.
There are seven petitioners in the case with at least 12 active counsel in the matter before the nine-judge bench.

Prasanna S, 34
The Hosur-born, Tamil-speaking Prasanna sees nothing exceptional about his transition from the world of software to the thickets of Constitutional law four years ago. “Many technologists have moved to fields like investment banking. No questions are asked of them,” says Prasanna, now an independent, Delhi-based lawyer. Prasanna, who is also a trained Carnatic singer, believes his background in software and technology gives him “at least the vocabulary to understand new challenges to civil liberties”.

“Many technologists have moved to fields like investment banking. No questions are asked of them,” says Prasanna, now an independent, Delhi-based lawyer. Prasanna, who is also a trained Carnatic singer, believes his background in software and technology gives him “at least the vocabulary to understand new challenges to civil liberties”.

He says the general lack of opposition among the public to ideas such as Aadhaar, the unique ID programme that is at the core of the privacy debate, stems from a “fascination with technology” and a belief “that if it is a machine, it will make correct choices”.

Nothing could be more flawed, he says. “I can see through that clearly, being fully aware of how technology can have design limitations,” says Prasanna. In the case of biometrics, Prasanna says, “With an error-rate higher than 10 per cent, if this flawed technology rejects the population the size of the state of Bihar as being ineligible for rations, what is to be done? Is that acceptable?”

Prasanna believes that technology ruling lives can only be deemed as fair if it is “proveably so and nothing in Aadhaar has been able to convince me of that”.

right to privacy, privacy as fundamental right, Supreme Court on privacy fundamental right, Aadhaar card compulsion, aadhar act, latest news, india news, indian express The lawyers photographed on the central lawns of the Supreme Court in New Delhi. (Express Photo by Tashi Tobgyal)

Gautam Bhatia, 28
The Rhodes scholar is also a sci-fi geek. He edits Strange Horizons, a UK-based science-fiction magazine, and is now looking at post-colonial science-fiction. One of the lawyers on senior counsel Datar’s team, he is among the leading voices in the privacy debate, even live-tweeting the apex court’s proceedings. Bhatia was studying for a degree in legal philosophy at Yale when WikiLeaks broke, followed by Edward Snowden’s revelations in June 2013. In December 2013, the American Civil Liberties Union filed a law against surveillance and Bhatia took a train to the New York district court to hear ACLU fight the US National Security Agency for two-and-a-half hours.

After he returned to India, his alma-mater, the National Law School in Bengaluru, asked him to do a paper on surveillance in the Indian context. To Bhatia, that was a “golden moment”, when his academic pursuits and events at home and abroad got him interested in data, meta-data and privacy concerns. Bhatia believes that Aadhaar in itself is not a surveillance mechanism, but has the “potential” to be one. “If information is in different silos, the seeding of databases is okay, but the minute you combine it, then you are very well placed to be a perfect surveillance state,” he says.

Gautam speaks of how metadata gives you a deeper insight into people than actual data. “If you tape my phone conversation, you get data, but if you know who I called, who I had coffee with, visited a doctor, a divorce consultant and a physiotherapist… that gives you much more data to map me with near perfection,” says Bhatia, who is the author of Offend, Shock or Disturb: Free Speech Under the Indian Constitution.

So what is an ideal right to privacy law? “Any law on privacy has to be founded on principles of informed consent and specific consent. Informed consent means the person is aware of what use it’s being put to and specific consent means that the authorities must seek consent for each specific act.”

Gautam thinks a national political culture that does not value privacy can only go one way. “Look at history — societies where privacy is devalued become totalitarian. East Germany, with its Stasi (Ministry of State Security that carried out mass surveillance), was not a strong state, but a state where the national political culture is such that privacy does not count, becomes a surveillance state,” he says.

Gautam believes that violation of privacy enables discrimination. “Bezwada Wilson has spoken of how manual scavengers do not want to be identified, nor do people like trafficked women who have been freed. Too much data about citizens with the state is anti-democratic.”

right to privacy, privacy as fundamental right, Supreme Court on privacy fundamental right, Aadhaar card compulsion, aadhar act, latest news, india news, indian express There are seven petitioners in the case with at least 12 active counsel in the matter before the nine-judge bench. (Express Photo by Tashi Tobgyal)

Apar Gupta, 33
@Aparatbar is a familiar Twitter handle to serious followers of the privacy and data debate in India. Gupta says he operates in the space between the “polar worlds of rockstar litigant Harish Salve and Prashant Bhushan, who does public interest litigation”.
A product of Columbia Law School and before that, Mount St Mary’s school in Delhi, Gupta says, “It is true society will be incredibly digital, but if you divorce it from civil rights and constitutionality, you will get something very unjust. We want to push this back.”

So why would governments want Aadhaar to be made compulsory when they have passports and PANs? “There is an administrative fetish, which is fed by Aadhaar. (Governments) get a digital dashboard and are able to create the illusion that they are administering efficiently. It’s on a good-faith basis to some degree, but all digitisation is not good. Digital IDs by themselves have resulted in savings, but that has been without Aadhaar. Conservative estimates are that nearly Rs 11,000 crore has been spent on Aadhaar,” he says.

Kritika Bharadwaj, 26
She is currently reading three books: Delete, on the Right to be Forgotten, The Second Sex by Simone De Beauvoir and Seven Minutes, a courtroom thriller. But Kritika, a political science graduate from LSR, went on to do an LLB from Delhi University’s Faculty of Law and later Masters from Cambridge in Information Law. But even before her Masters, she had cut her teeth on Aadhaar-related matters and done meticulous research on international laws, biometrics, international practices, protocols and databases in the world.

“We were shocked by the Centre’s arguments that privacy is not a fundamental right. We had prepared things pertinent to Aadhaar, of projects, exclusion and biometrics. But when the government made this plea, we all sat up and decided to help push this back,” she says.

Yet, she says, the “real challenge to us is the ‘so what’ challenge. “So what if privacy is violated, people say. We are still trying to address that convincingly,” she says. “My understanding and study tells me that the real worry is that the citizen does not even know what the government knows about him and how it will be used against the citizen. That is a lot of information asymmetry. Also, with so much data about everyone, there is implicit, a presumption of guilt of each citizen,” she says.


Tuesday, January 31, 2017

10786 - Project Of Defiance - Indian Express

Governments are making Aadhaar mandatory in contravention of court orders

Written by Apar Gupta , Prasanna S | Updated: January 13, 2017 12:36 am

The Supreme Court has passed a series of interim orders to prohibit the imposition and limit the application of Aadhaar.
One reason for the controversy surrounding the Aadhaar project is the pending litigation against it in the Supreme Court. The cases draw on substantive critiques, including exclusion and deprivation caused by the usage of Aadhaar in provisioning essential services such as the PDS and MGNREGA, breaches of individual privacy and threats to national and individual security in the way the project has been conceived and implemented. Such concerns are not pure policy matters but interact with constitutionally protected fundamental rights, including Articles 14, 19 and 21 of the Constitution.

The Supreme Court has passed a series of interim orders to prohibit the imposition and limit the application of Aadhaar. However, concerns as to the compliance of such orders has been rising as various government ministries, departments and other statutory bodies continue to link Aadhaar to the provision of services — in many instances, even making it mandatory. In any litigation, the interest of a court is in ensuring that its final judgement is implemented in letter and spirit. Such determinations take time and a common method to ensure compliance is by preventing parties from disturbing the subject matter of the litigation. Acting on these well-established legal principles, the SC has passed a series of orders on the Aadhaar project as it continues to consider the petitions.

In August 2015, the court issued a set of directions making it clear that Aadhaar was not a precondition for the delivery of any state benefits and further limiting its use to PDS schemes. 

Aadhaar was directed to be optional, and even such voluntary use was allowed only for the distribution of foodgrains and cooking fuels. Such a restraint was passed after the Union government took a stand that the constitutional basis of the right to privacy did not clearly emerge in case law. Acting on this, the court referred the Aadhaar petitions to a larger bench. Such a bench has yet to be constituted with the larger Aadhaar case hanging in the balance.

During the pendency of the case, two significant events occurred. On October 15, 2015, 11 state governments and institutions went back to the SC seeking permission to use Aadhaar beyond PDS schemes. The court agreed to relax its order but limited the use of Aadhaar to four schemes, in addition to PDS and cooking fuel allowed by the earlier order. It again clarified the use of Aadhaar would be, “purely voluntary” even while Aadhaar is used in these schemes. Then, on March 16, 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was passed, having been rushed through Parliament as a money bill. Given that the Aadhaar scheme operated on the basis of a executive notification till such date, some claimed the Aadhaar Act filled in a legislative vacuum. Others criticised it on process and substance. Such concerns have given rise to two petitions challenging the constitutional validity of the Aadhaar Act which the court has agreed to hear, but it will have to wait till the larger question of the right to privacy is decided. Hence, compliance with the interim directions becomes vital.

Irrespective of such challenges, many state institutions have started demanding Aadhaar as a precondition (mandatory, not voluntary) for services (beyond the five permitted schemes). For instance, the joint entrance examination notification for the IIT competitive exam requires compulsory online registration through Aadhaar. A subsequent clarification makes a reference to the Aadhaar Act to purportedly clothe this imposition with an appearance of legality.

This creates doubt on the restraint put by the SC when none should exist. The Aadhaar Act does not have a provision that excludes or nullifies existing orders. On the contrary, there is language in the Act that suggests continuity with the earlier legal arrangement. Even otherwise, a order on September 14, 2016, stayed the imposition of Aadhaar in three scholarship schemes, thereby indicating that the Aadhaar Act does not materially alter the SC’s past orders.

The state’s measures have elements of coercion that undermine individual choice and rights guaranteed under the Constitution. Observance of the interim orders of the Court are better suited to the government for maintaining a healthy, respectful relationship with the judiciary branch. Disregarding them portends a worrying prospect of undermining the authority of the Supreme Court.


The writers are lawyers for petitioners in the Aadhaar cases before the Supreme Court

Thursday, April 7, 2016

9758 - Aadhaar requires safeguard conferring right, enforceable through writ – Apar Gupta - Medianama


By Guest Author on April 6, 2016



An aadhaar to privacy by Apar Gupta

Most of the debate on the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 has centered on the right to privacy. All five amendments suggested by the Rajya Sabha to the Aadhaar Act, subsequently rejected by the Lok Sabha, had an element of this right within them. Though credible, the amendments failed to notice the core deficiency of the law rested not in the lack of protections within the Aadhaar Act, but in the absence of a comprehensive privacy statute to develop and enforce them.

To gauge the level to which privacy is safeguarded we must look at both the substantive protection and the procedure available to enforce them. Many people regard privacy as an amorphous concept, which is also why it is hard for them to visualize any harm to it. 

Recognizing this problem in 2012 the Justice A.P. Shah Committee conducted comparative research of existing law, international treaties and foreign legislations and suggested nine distinct principles canonizing the right to privacy. 

An analysis of the Aadhaar Act shows that it does not even recognize some of these nine principles, remaining substantively inadequate. For instance, take the principle of access; a person cannot in any instance demand access to their core biometric information under the Aadhaar Act. Since no public consultation was conducted on the draft law and the explanatory memorandum is silent we can only guess why this deficiency exists.

Greater difficulty exists to enforce the laconic safeguards of the Aadhaar Act. Broadly, the three forms of judicial remedies usually enforced are civil, criminal and the writ jurisdiction of the High Courts and the Supreme Court of India. Any litigant can attest to their sloth and indeterminacy. But while they may require a lot of time and persistence, they also deliver justice. The Aadhaar Act makes all these three remedies ineffective for individuals.

The civil remedies under the law oust the jurisdiction of the civil courts in favor of the system set up for penalties under the Information Technology Act. The existing penalties under the IT Act are deficient, as they were never intended to provide comprehensive privacy legislation. Even if they are amended the enforcement under the IT Act has never worked properly and shows no promise of improvement. Under it the jurisdiction of civil courts is barred in favor of, “adjudicating officers”. These officers are usually a serving IT Secretary of the State Government given an additional charge to adjudicate cases under the IT Act. Though persons of high competence, they are not usually trained in law, lack a permanent seat and clerical staff for the court they hold. This lack of resources and training handicaps not only their capacity but also the quality of judicial orders necessary to withstand review. Such scrutiny would naturally arise in appeal as provided under the IT Act — but for the last 3 years the Cyber Appellate Tribunal that hears such appeals has not been properly constituted and is not functioning.

Problems with enforcement of the criminal remedies are more straightforward. Only the Unique Identification Authority that administers the Aadhaar programme can make complaints for the offences contained under the Aadhaar Act. Not only is this a conflict of interest, but it also takes away the injured party/Aadhaar user’s recourse to a criminal remedy. It may be argued by some that penal provisions under the IT Act and the Indian Penal Code do exist and can be invoked by individuals. But such an assertion must consider the absence of any notification mechanism. The Aadhaar user is never informed when a crime occurs of their data. They will never have the particulars necessary to register a criminal complaint.

This brings us to the final remedy of writs that can be availed to enforce the fundamental and statutory rights available to a person. It would normally be expected that any person would be able to approach a High Court for the enforcement of rights under the Aadhaar Act. Especially when the Unique Identification Authority does not provide authentication as it is intended to do or fails to correct the data records. Most people know the poor quality of data entry in their government IDs. They would agree that a mandatory scheme such as Aadhaar requires a safeguard clearly conferring a right than can be enforced through a writ. However these rights are problematically phrased as “requests” for supplying and correcting information of an Aadhaar user (on the basis of which all authentication happens). This dilution is made clear by the absence of the requirement of a hearing, a reasoned order or an appellate process under the Aadhaar Act.

It is not without reason the Justice A.P. Shah report on privacy suggested a comprehensive legislation to safeguard privacy and also the office of a central privacy commissioner to develop and apply it. Even when suggesting the establishment of a privacy commissioner, who could impose penalties for violations, it recognized the central role of existing judicial forums by retaining the jurisdiction of the civil courts. While many may see privacy as the core issue in the Aadhaar programme, privacy itself transcends it. As our everyday lives become connected, a comprehensive privacy legislation is an essential safeguard.  This is not a product of paranoia against digital surveillance but a basic ask for the legal protection of a human right.

***
Crossposted with permission from the author.

Apar Gupta is a litigator based in New Delhi, India. He holds a masters degree from Columbia Law School and has authored a Commentary on the Information Technology Act, 2000 (published by LexisNexis). His Twitter handle here.