13557 - Supreme Court judge Jasti Chelameswar retires - Scroll.In

Supreme Court judge Jasti Chelameswar retires

In keeping with tradition, he sat in the chief justice’s court with Dipak Misra and Justice DY Chandrachud for a short period on Friday.

by  Scroll Staff

Published Yesterday · 01:52 pm Updated Yesterday · 04:58 pm.

IANS

Friday was the last working day for Justice Jasti Chelameswar, the second senior-most judge in the Supreme Court. The judge is set to retire on June 22 but his last working day was on Friday, when the Supreme Court closes for the summer vacations. By the time it reopens on July 2, his tenure would be over.

Dispelling speculation that he would break with tradition, Chelameswar sat in the chief justice’s court with Dipak Misra and Justice DY Chandrachud on Friday. It is a tradition in the Supreme Court that a judge who is retiring from office sits in the chief justice’s court on their last working day. However, since he had turned down an invitation by the Supreme Court Bar Association for his farewell – another tradition – there were rumours that he would not appear in the chief justice’s court on his last working day.

The bench convened at 10.35 am for a short period of time, Bar and Bench reported, adding that three members of the Bar paid their tributes to the judge in open court.

Advocate Prashant Bhushan said, “Future generations will remember your contribution to democracy and the country,” while senior advocate Rajiv Dutta thanked Chelameswar for “upholding the ideals of the institution”. Advocate Gopal Sankaranarayanan, in his farewell speech, also thanked the judge and said his grace towards junior members of the Bar will always be appreciated.

Dissenting voice

Chelameswar was one of the four Supreme Court judges who had in January openly protested against alleged maladministration in the top court on Chief Justice Dipak Misra’s watch. In March, he wrote to Misra expressing concern about the government’s interference in judicial functioning.

He has spoken up in several other matters, including some relating to judicial appointments, the collegium system, and had also gone public with his decision to boycott meetings of the collegium, alleging lack of transparency and accountability. He also played a major role in getting the chief justice of India to disclose decisions the secretive collegium made on the Supreme Court’s website.

Lost the chance to be India’s chief justice

Chelameswar was appointed additional judge in the Andhra Pradesh High Court in 1997. While he was made Chief Justice of the Gauhati High Court in May 2007, he was not elevated to the Supreme Court till until October 2011. The unexplained delay denied him the chance to be chief justice of India.

His landmark judgements include striking down Section 66A of the Information Technology Act. He also headed the bench that referred the matter on Aadhaar’s privacy concerns to a larger Constitution bench.

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5387 - Nilekani has been too clever by half in pushing Aadhaar; now, he must face flak - First Biz

Nilekani has been too clever by half in pushing Aadhaar; now, he must face flak

By R Jagannathan 

Nandan Nilekani, father of the Aadhaar unique biometric identity project, has tried to put on a brave face over the Supreme Court’s decision last Monday that effectively puts a question-mark over its future. The court said that Aadhaar’s use cannot be made mandatory for anyone seeking to avail oneself of subsidy schemes, and also struck down a Bombay High Court decision that called on the Unique Identification Authority of India (UIDAI) to share biometric data for criminal investigations.

Nilekani, who till recently was tomtomming his accomplishment of giving Aadhaar cards to 600 million residents (not necessarily Indian citizens), even took credit for the court decision. 

Business Standard quoting him as saying: "The ruling from the Supreme Court…was in response to a motion filed by the UIDAI itself, since the agency didn't want to share resident data for a criminal investigation. The UIDAI has always valued the privacy of resident data... and the agency went to the court to ensure that people's privacy is protected."

However, what Nilekani did not talk about was the court’s observation that its orders making Aadhaar non-mandatory, issued last September, were being flouted.

Justice BS Chauhan, who along with Justice J Chelameswar constituted the bench hearing the public interest litigation against Aadhaar, told the Solicitor-General in court: “I have received a lot of letters which say that Aadhaar card is mandatory despite court orders. We had already passed orders saying no one should suffer for not having Aadhaar card. How can you insist on Aadhaar card? If there are any instructions that Aadhaar is mandatory, it should be withdrawn immediately.”

There are two issues emanating from Nilekani’s claims and pretence that Aadhaar was voluntary.

First, since Nilekani resigned as UIDAI chief barely two weeks ago to contest the Bangalore (South) Lok Sabha elections on a Congress ticket, he cannot claim ignorance of the Supreme Court’s orders of September 2013 making Aadhaar non-mandatory. As UIDAI chief he should have specifically told Aadhaar applicants that this was not needed, and if they wanted a card, they did so voluntarily. UIDAI did not widely publicise this.

Second, even on the point of privacy, surely he would not have been unaware of the potential for abuse when so much biometric data is collected by private parties without any law to safeguard misuse. And yet, he pushed ahead without any law to prevent this abuse. He let us down on privacy.

What this proves is that Nilekani used his clout with the UPA government to go full steam ahead with his pet scheme even though he knew safeguards were not in place. He would also have known that it could be misused. From a public spirited leader, this level of nonchalance about privacy is not expected. In fact, one can suspect that he used a weak government to push through a deliberate plan to ask people to part with their biometrics while giving people the misleading impression that it had the full sanction of the law.

We now know that Aadhaar not only did not have the backing of a law, but its use for government transactions was being extended covertly after September 2013 even after the court specifically said it was not compulsory.

Nilekani says that Aadhaar was never mandatory, but can he feign ignorance about how it was really being pushed on the ground by LPG dealers and banks? LPG dealers were pushing Aadhaar long after the Supreme Court order to deny people subsidised cylinders. Banks were pushing Aadhaar in order to get over tough KYC (know your customer) norms. As Aadhaar KYC norms are far easier to comply with, banks could then wash their hands off KYC compliance by accepting Aadhaar as the validator. Many banks have been holding Aadhaar camps to persuade account holders to seed their accounts with the number to receive government subsidies. Did banks not know this was not needed?

Voluntary compliance with Aadhaar when the applicant is not specifically told about its non-mandatory nature is no different from deliberately misleading the public.

When Sebi clears any share of mutual funds for sale to the general public, these issues have to specifically highlight the risk factors. But here we are collecting biometric data – something that is the private property of the individual except where the law provides for its collection by the state – and the public is not warned about it.

Nilekani has now protested to the Election Commission against his political opponent in Bangalore (South) Ananth Kumar for making Aadhaar his target. But he has only himself to blame. If he talks of Aadhaar as his success, its failure to pass muster with the Supreme Court is his failure too.

Nilekani has probably been too clever by half in trying to push a good scheme in the wrong way – without legislative backing, and with little protection for the hapless poor who think this is the route to subsidy benefits. A CobraPost sting showed that Aadhaar can easily be purchased for a fee - compromising the whole process.The use of private parties for collecting biometris has often resulted in Aadhaar numbers being issues to dogs and even trees in the past.

He should thus be ready to face the flak.

Is there any way to rescue Aadhaar? Yes.

First, it needs to be suspended and the data sealed till a legislation is passed.

Second, the law should specify that it cannot be used for any fishing expedition by the investigation agencies or the government without the permission of the resident.

Third, Aadhaar can be restricted only to the poor. It must be used to exclude the rich so that subsidies can be better targeted.

Aadhaar has to be re thought through, not junked. 

To read why, read here.

5354 - Aadhaar cannot be mandatory: SC - Business Standard

Aadhaar cannot be mandatory: SC

Says its order of Sept last year is clear that no one can be deprived of any service for not having an Aadhaar number

BS Reporter  |  NEW DELHI  March 25, 2014 Last Updated at 00:06 IST

The Supreme Court on Monday directed the central government not to share Aadhaar card details with any agency without the consent of the card holder. It also asked the government to immediately withdraw all orders which had made the card compulsory for registration of marriage or property or availing of the subsidy on cooking gas cylinders or for any other service.

The court reiterated its order of September last year that no one should suffer for not having the card. A bench of judges B S Chauhan and J Chelameswar passed the order in a case from Goa involving gang rape. A court there had asked the Unique Identification Authority of India (UIDAI) to share the biometric data of residents in the state to crack the case. The authority petitioned the high court at Mumbai against this but the latter did not prevent the sharing of Aadhaar details with the probe agency.

Solicitor General Mohan Parasaran, who argued for UIDAI, was told by the judges that they were receiving a number of letters complaining the government was insisting on an Aadhaar card for providing services despite the September order. “You issue instructions withdrawing the notifications making the Aadhaar card mandatory for availing of services,” the court said. Parasaran, who also represented the government said, “We will do it immediately.” The court observed it had already passed an order in this regard and it should be strictly implemented.

While staying the high court order, the Supreme Court issued notice to the Central Bureau of Investigation, which is probing the gang rape, seeking its response to the UIDAI petition.

The apex court has been hearing for some time a challenge to the validity of the Aadhaar scheme, moved in several public interest petitions. The hearings are yet to be completed.

The privacy issue, one of the main attacks on the scheme, was highlighted in this case of the gang rape of a seven-year-old girl in a school 14 months earlier. The investigators have some fingerprints and they want the Aadhaar cards of all residents to ascertain the identity of the suspects.  The card is supposed to be the authoritative record for fingerprints, iris and facial images.

UIDAI told the Supreme Court if the high court upheld the Goa court order, it would open a floodgate of such demands by courts and other authorities. It said the UIDAI system was developed “for civilian use and for non-forensic purposes”. If the data is used for non-civilian purposes, it would affect scores of innocent people, the appeal said.

Sharing information with other agencies would violate a person’s right to privacy, since the current data sharing policy and guidelines clearly provided that biometric data cannot be shared without the consent of a resident, it was argued.

5353 - Supreme Court’s order exposes illegality of Biometric aadhaar, NPR and PII - India Resists

Supreme Court’s order exposes illegality of Biometric aadhaar, NPR and PII

http://www.indiaresists.com/aadhar-uid-supreme-court-order-exposes-its-illegality/

Now opposition parties should promise destruction of database of biometric features created so far 

Promoters of Biometric aadhaar and NPR emerged as killers of privacy unlike heroes like Julian Assange, Edward Snowden and Bradley Manning

March 24, 2014 New Delhi: Hearing the Special Leave to Appeal (Criminal) No(s).2524/2014, which has been linked with the previous case Writ Petition (Civil)    494 of 2012, the Supreme Court bench of Dr. Justice B.S. Chauhan and Justice J. Chelameswar passed an order that exposes the illegality of the unscientific exercise of indiscriminate biometric data collection by Planning Commission's UIDAI, Home Ministry's Registrar General of India for Aadhaar number and National Population Register (NPR) and other government and private agencies.

Supreme Court has passed this order asking Government of India to delink all programs from biometric aadhaar. Non-Congress political parties have denounced biometric aadhaar as a case of fraud and a national betrayal. The same holds true for NPR.

Welcoming the order, Citizens Forum for Civil Liberties (CFCL) demands that the opposition parties should promise that new government after the Lok Sabha elections will destroy the illegal and illegitimate database of biometric features as has been done in UK and other countries.

Notably, even as data thieves and brokers are feeding memory of online companies, the dictum “Internet never forgets” faces challenge from legislatures in USA which are grappling with Do Not Track Me Online Act and European General Data Protection Regulation that includes right to be forgotten. The European Parliament passed the regulation on March 12, 2014. In the absence of any regulatory resistance, data mining mafia is on the prowl in India through aadhaar and NPR. The marriage of internet with biometric data consequents in the death of privacy and democratic rights.   

Biometric data itself has scientifically been proven to be 'inherently fallible' especially because of constant decay of biological material in human body. Global experience demonstrates that the trust in junk science of biometrics is misplaced. The stolen biometric passport of a passenger in the missing Malaysian airliner has exposed its claims for good.

The incident of two of the 239 passengers who were on the Malaysian airliner that disappeared on March 8, 2014 between Kuala Lumpur and Beijing having used stolen European passports based on biometric data including electronically stored fingerprints and facial images merits attention. It is this very biometric technology which is the basis of biometric unique identification (UID)/aadhaar number and National Population Register (NPR).

In post-independent India, except for the Emergency period never was privacy under such unprecedented assault. 

In the light of these developments there is a compelling need to explore the following questions:

1.         What is the technological basis of 12 digit unique identification (UID)/aadhaar number and NPR?

2.         What is the basis of the editorial claims like “privacy issues can be take care of once supporting legislation is in place” be considered defensible. Is this what is called putting the cart before the horse?

Is there a biological material in the human body that constitutes biometric data immortal, ageless and permanent? Besides working conditions, humidity, temperature and lighting conditions also impact the quality of biological material used for generating biometric data. Both aadhaar and NPR are based on the unscientific and questionable assumption that there are parts of human body likes fingerprint, iris, voice etc” that does not age, wither and decay with the passage of time.

In a RTI reply dated October 25, 2013, UIDAI shared its contract agreement with Ernst & Young states in a most startling disclosure from the contract agreement is its admission that “biometric systems are not 100 % accurate”. It admits that “uniqueness of the biometrics is still a postulate.” In an admission that pulverizes the very edifice on which UID/aadhaar and the NPR rests, it writes, “The loss in information due to limitations of the capture setup or physical conditions of the body, and due (to) the feature representation, there is a non-zero probability that two finger prints or IRIS prints coming from different individuals can be called a match.” 

This is underlined in bold letters in the contract agreement. In simple words, “non-zero probability that two finger prints or IRIS prints” turning out to be a match means that there is a probability that biometric data of two different individuals can be identical.

The contract agreement states, “the Unique ID will be a random 12-digit number with the basis for establishing uniqueness of identity being biometrics”. The agreement further states, “we will provide a Unique Identity to over 113.9 crore people.” This is evidently a fraudulent claim because UIDAI with which the agreement has been signed has mandate to provide Unique Identity to only 60 crore residents of India and not to 113.9 crore people. 

A report “Biometrics: The Difference Engine: Dubious security” published by The Economist in its 1 October 2010 issue observed “Biometric identification can even invite violence. A motorist in Germany had a finger chopped off by thieves seeking to steal his exotic car, which used a fingerprint reader instead of a conventional door lock.” This reveals the frightening ramifications of using biometrics as a basis for identification.

Another report “Biometric Recognition: Challenges and Opportunities” concluded that the current state of biometrics is ‘inherently fallible’. That is one of the findings of a five-year study was jointly commissioned by the CIA, the US Department of Homeland Security and the Defence Advanced Research Projects Agency.

As to privacy, in the contract agreement between the President of India for UIDAI, as purchaser and L-1 Identity Solutions Operating Company, and Accenture Services Pvt Ltd accessed through RTI at clause 15.1 it is stated, "By virtue of this Contract, M/s Accenture Services Pvt Ltd/Team of M/s Accenture Services Pvt Ltd may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable."  The purchaser is President of India through UIDAI. The clause 15.3 of the agreements reads, "The Data shall be retained by Accenture Services Pvt Ltd not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future."  This clearly implies that all the biometric data of Indians which has been collected so far is now available to US Government and French Government. 

In “Broken Promises of Privacy: Responding to the surprising failure of Anonymisation”, a 77 page long study by Paul Ohm Associate Professor at the University of Colorado Law School illustrates how central identity databases facilitate the reverse audit trail of personal information. This paper underlines that the assumption of robust anonymization of electronic identity has been blown up, “casting serious doubt on the power of anonymization, proving its theoretical limits…” 

Sam Pitroda’s public information infrastructure (PII) is tagging people, tagging places, tagging programmes etc to connect 2.50 lakh Panchayats all over the country. UID/aadhaar and NPR of Chandramouli are subsets of this program. Ever wondered as to why the votaries of privatization of every imaginable natural resource ‘for public welfare’ have become advocates of centralization of biological information of Indians ‘for public welfare.’ The rationale for the stateization of personal sensitive information of Indian residents and citizens appears dubious.

Not surprisingly, Government's own Draft Discussion Paper on Privacy Bill stated, “Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralized manner" unlike UIDAI, NPR and PII.

Human body came under assault as a result of forced vasectomy of thousands of men under the notorious family planning initiative of Sanjay Gandhi. Nilekani and his ilk have acted worse than Sanjay Gandhi in putting Indians’ body under the assault of biometric surveillance. 

Earlier it appeared strange as to how the aadhaar cases namely, Writ Petition (Civil)    494 of 2012 W.P(C) NO. 829 of 2013, W.P (C) NO. 932 of 2013, T.C.(C) NO. 152 of 2013, T.C. (C) NO. 151 of 2013, W.P (C) NO. 833 of 2013 and CONMT.PET. (C) NO.144/2014 IN W.P.(C) NO.494/2012 which were listed for hearing on 4th March, 2014 got knocked out from the priority list of hearing, after passing 14 orders and ongoing hearing in the case ahead of the Lok Sabha elections. 

Supreme Court’s previous 14 Orders in the aadhaar case are as under:

	Click Here for Court's Order on 13-2-2014
	Click Here for Court's Order on 12-2-2014
	Click Here for Court's Order on 11-2-2014
	Click Here for Court's Order on 4-2-2014
	Click Here for Court's Order on 28-1-2014
	Click Here for Court's Order on 26-11-2013
	Click Here for Court's Order on 8-10-2013
	Click Here for Court's Order on 7-10-2013
	Click Here for Court's Order on 4-10-2013
	Click Here for Court's Order on 23-9-2013
	Click Here for Court's Order on 2-9-2013
	Click Here for Court's Order on 26-4-2013
	Click Here for Court's Order on 14-3-2013
	Click Here for Court's Order on 28-2-2013

While whistleblowers like Julian Assange, Edward Snowden and Bradley Manning have joined the ranks of hall fame as the defenders of privacy as a basic human right, likes of Nandan Nilekani, C Chandramouli and Sam Pitroda have joined the hall of infamy with entities like National Security Agency as killers of privacy. The latter are admittedly in the business of ‘cloudifying’ databases that has the potential to turn governments into puppets at least as far as control over database is concerned.

For further details: Gopal Krishna, Member, Citizens Forum for Civil Liberties (CFCL), Mb: 9818089660, E-mail:gopalkrishna1715@gmail.com