12511 - SC extends Aadhaar linking deadline to March 31, but spells no relief for Aadhaar holders opening new bank accounts - The Hindu

SC extends Aadhaar linking deadline to March 31, but spells no relief for Aadhaar holders opening new bank accounts

Krishnadas Rajagopal

NEW DELHI, DECEMBER 15, 2017 11:20 IST

Bench schedules final hearing on 28 separate writ petitions challenging very validity of Aadhaar scheme to January 17, 2018.

An existing Aadhaar holder will have to furnish his Aadhaar card to open a new bank account, a five-judge Constitution Bench of the Supreme Court, led by Chief Justice Dipak Misra, ordered on Friday.

The Bench extended the deadline for Aadhaar linkage to March 31, 2018 only for non-Aadhaar holders opening new bank accounts. Meanwhile, they can open new bank accounts, provided they furnish proof to the bank of having applied for an Aadhaar card. Proof is in the form of their Aadhaar application form or number.

"Those who already have Aadhaar cannot go on [open a new bank account] without Aadhaar. If they have Aadhaar, they will have to furnish it to the bank," Chief Justice Misra clarified to senior advocate C.A. Sundaram, appearing for UIDAI (Unique Identification Authority of India).

"You see, there is no question of producing Aadhaar enrollment application for those who already possess Aadhaar cards," Justice D.Y. Chandrachud, who authored the interim order for the five-judge Bench, reasoned.

The Bench scheduled the final hearing on 28 separate writ petitions challenging the very validity of the Aadhaar scheme for January 17, 2018.

'Issue of validity is of considerable importance'

Reading out the order for the Bench, Justice Chandrachud said the issue of Aadhaar's validity is of “considerable importance” and requires resolution and clarity at the earliest for the benefit of both the citizenry and the government.

Justice Chandrachud pointed out the fact that a nine-judge Constitution Bench on August 24, 2017 recognised and upheld privacy as a fundamental right and intertwined it with basic human dignity and right to life.

This verdict had made it all the more important that the quesion whether Aadhaar was constitutional or not should be resolved by the five-judge Bench at the earliest, he said.

‘Stark violation of fundamental right to privacy’

The petitioners challenging Aadhaar argue that the scheme, which requires the parting of biometric and personal details, is a coercive step and a stark violation of the ordinary citizen's fundamental right to privacy. The danger to privacy, they reason, is all the more great because India does not have a data protection regime to prevent or punish personal data leakage.

Mobile phone-Aadhaar linkage extension

The Constitution Bench extended the deadline for mobile phone-Aadhaar linkage from February 6, 2018 to March 31, 2018. Aadhaar was a mandatory requirement for e-KYC procedure in mobile phone connections, existing and new.

The court  also extended the deadline for Aadhaar linking to avail 139 services and subsidies under Section 7 of the Aadhaar Act to March 31, 2018. It directed that the deadline extension should be communicated to the State governments so that people at the ground level are not denied basic welfare and subsidies for want of an Aadhaar card.

Various government agencies and ministries had issued 139 circulars over the past months, mandating Aadhaar for availing or accessing welfare benefits, subsidies, services for which the funds were sourced from the Consolidated Fund of India.

As an interim measure, the Bench said the position held by the Binoy Vishwam judgment on the validity of Section 139AA continues.

A two-judge Bench of Justices A.K. Sikri and Ashok Bhushan, both part of the present Constitution Bench along with Justice A.M. Khanwilkar, had concluded that Section 139AA of the Income Tax Act was not violative of the fundamental right to equality enshrined in Article 14 of the Constitution.

The Section had mandated the linking of Aadhaar for filing of income tax returns.

However, the two-judge Bench had left open the question whether the provision was violative of right to privacy and dignity of the individual to the Constitution Bench for final decision.

On November 14, Attorney General K.K. Venugopal submitted that the deadline for linking of “everything”, including bank accounts, with Aadhaar had been extended from December 31, 2017 to March 31, 2018.

Finance Ministry notification

In this regard, the government side had referred to a notification issued by the Ministry of Finance, which had amended the proviso to Rule 9 (17) (a) of the Prevention of Money Laundering (Maintenance of Records) Rules of 2005 to remove the December 31 deadline. The notification also had substituted Rule 9 (17) (c), which said bank accounts would cease to operate if they were not linked with Aadhaar by December 31.

A later press release issued by the Ministry on November 13 evening fixed the extended deadline for Aadhaar-bank linking as March 31.

The government last week informed the court its willingness to extend the last date for linking of welfare subsidies and services under Section 7 of the Aadhaar Act of 2016 to March 31.

Justifying Aadhaar linkage with bank accounts, senior advocate Rakesh Dwivedi, for the RBI, had submitted that Aadhaar linkage was instrumental in weeding out 2.2 lakh fake bank accounts out of a total 54 crore.

Senior advocate Meenakshi Arora, for the petitioners retorted that "the whole nation cannot be held suspect to money laundering activities".

"For 70 years, the banking system has functioned without a hitch... why impose Aadhaar now?" Ms. Arora had said.

Senior advocate Sanjay Hegde said imposing Aadhaar in bank accounts would do "irretrievable injustice" to a person's right to conscientiously hold out against linkage for the sake of his fundamental right to privacy.

11973 - SC asks Maha why St Xavier's College denied admission to student for Aadhaar - Deccan herald

SC asks Maha why St Xavier's College denied admission to student for Aadhaar

ASHISH TRIPATHI, NEW DELHI, DH NEWS SERVICE, SEP 5 2017,

The Supreme Court has asked Maharashtra government to explain why a student was denied admission to Mumbai's prestigious St Xavier’s College due to inability to furnish Aadhaar card.

A bench of Justices Madan B Lokur and Deepak Gupta gave two weeks time to the state government as well as the college authorities to file their response to a petition filed by Mumbai-resident John Abraham.

The petitioner's son studied at St Xavier’s College and had already cleared class XI examinations but was denied admission to class XII for want of the Aadhaar card issued by the Unique Identification Authority of India.

Senior advocate Sanjay R Hegde and Joseph Aristotle, representing the petitioner, challenged a Bombay High Court order of June 14, rejecting his plea that the college authorities should not deny his son admission to class XII in arts stream for the absence of Aadhaar.

The high court had failed to consider that the college authorities acted in complete violation of the Supreme Court’s direction of October 15, 2015, wherein the apex court has made it amply clear that "the Aadhaar Card scheme is purely voluntary and it cannot be made mandatory”, they submitted.

The counsel also submitted that the HC did not consider that the college authorities could not show any basis or legal sanctity for their "arbitrary action" by depriving the petitioner’s minor son admission to the college. 

"The HC's order defies the judicial discipline and the supremacy of this court,” they contended.

The petitioner also submitted that the college authorities failed to produce any regulation which made possession of an Aadhaar card or number mandatory to get readmission. 

11572 - The task before the sentinel: privacy challenges to Aadhaar - The Hindu

The task before the sentinel: privacy challenges to Aadhaar

Sanjay Hegde

JUNE 30, 2017 00:05 IST

Getty Images/iStockphoto   | Photo Credit: MrJub

It is time the Chief Justice of India set up the larger Bench to examine privacy challenges to Aadhaar

The expansion of Aadhaar continues. The effort is now emboldened by a Supreme Court judgment that has stuck a band-aid on a gaping wound, which required stitches if not surgery. Individual holdouts against Aadhaar have been recognised and grudgingly protected by the judgment. There is, however, no broad declaration against an overpowering state’s propensity to stretch out to every sphere to compel individual surrender of little remnants of liberty. The architecture of enforced surveillance has been left intact.

As good as its use

Aadhaar is a classic case of technology being amoral. The splitting of the atom gave us nuclear energy. It also gave us weapons with the capacity to destroy civilisation. Similarly, the Unique Identification Authority of India (UIDAI) began only with the mandate to confirm a citizen’s unique identity. A stand-alone authority, with biometric information and fingerprints, which could, in cases of doubt, identify with certainty any claimant of government subsidies or special services. Aadhaar’s claim was to weed out duplicates and forgeries, thus ensuring targeted distribution by administrations.

Aadhaar’s sole purpose was as a benign guarantor of identity in cases of doubt. Any attempt by government departments to overreach this mandate was resisted by the authority. In fact, when a court ordered access to the database for a police investigation in a criminal matter, the Aadhaar authority challenged the order in the Supreme Court.

However, the UIDAI database has today ceased to be only a neutral identifier of a person’s identity. In the Information Age, where data is the new oil, the temptation to maximise the use of an all-encompassing database is simply too strong. More and more service providers sought linkages to the data and the government ramped up the number of government and other organisations that could insist on an Aadhaar-based identity alone as a sine qua non for dealing with the user. Shortly after the Supreme Court’s recent judgment of June 9, 2017, the government publicised a prior notification of June 1, 2017, under the Prevention of Money Laundering Act (PMLA). The notification makes it mandatory for bank account holders to produce an Aadhaar number.

The government has also deliberately misconstrued an earlier Supreme Court order in order to pressurise telecom operators to make Aadhaar a requirement for all mobile phone users. Even education and health services have been used to broaden the Aadhaar net and draw in more people into the dragnet. Schools insist on newly admitted children having Aadhaar numbers, which are not given until the parents too submit to Aadhaar registration.

There are reports that the Civil Aviation Ministry wants to make Aadhaar identification mandatory for access to commercial flights. The government has decided to make the cost of holding out unbearable to the non-compliant and present courts with a fait accompli.

Fundamental freedoms of the individual are being routinely sacrificed at the altar of administrative expediency and the forced sacrifice is justified as being necessary for the greater common good. Not since the forced sterilisations during the Emergency has a government been so invested in an administrative goal that it has abandoned the requirement to seek “the consent of the governed”. A key to access government services has turned into a prison lock of individual liberties. An all-powerful state seems today to seek “One Ring to rule them all, One Ring to find them, One Ring to bring them all, and in the darkness bind them”.

Everyone is affected

How then is this darkness to be dispelled? How are the Lords of the Rings to be brought back to democratic governance? The processes have to be both political and legal. The Mahatma as a leader was born in 1907 when an Indian barrister in Transvaal refused to register himself as a lesser inhabitant of South Africa. It is time for all political parties, including the Bharatiya Janata Party, to take a relook at the extent of control that Aadhaar gives to governments against the citizen. Today’s government is tomorrow’s opposition, and vice versa. Every party must seriously ponder the possibility that its worst opponents may one day use this technology against it.

The Congress, which fathered the scheme, is now coming to the slow realisation of the surveillance possibilities that it has handed over to its successor. Sitaram Yechury of the Communist Party of India (Marxist) has also raised concerns during the parliamentary debates held after the Aadhaar legislation was rushed through as a money bill. A sustained parliamentary inquiry committee, spanning various ministries, should be used to rein in the system’s worst excesses. Every new administrative measure designed to be Aadhaar-reliant should seek prior approval from this parliamentary committee.

It has been almost 700 days since the Supreme Court on August 11, 2015, referred the privacy challenges to Aadhaar to a larger Bench of possibly nine judges. The court needs to rule on whether the right to privacy is an established part of the fundamental right to life and liberty in this country. This is because, at a hearing before three judges, Attorney General Mukul Rohatgi had contended that because of judgments of the “Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295 (decided by Eight and Six Judges, respectively), the legal position regarding the existence of the fundamental right to privacy is doubtful.” He therefore contended that the “right to privacy” deemed to be accepted by subsequent smaller Benches “resulted in a jurisprudentially impermissible divergence of judicial opinions”.

The court further records its “opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches”.

The nine judges

Getting together nine judges to hear at length a constitutional matter of these proportions is an administrative nightmare for any Chief Justice. But failure to do so in time permits the state to set up an architecture of surveillance that cannot be undone later.

Chief Justice Patanjali Sastri in the early years of the Supreme Court had written: “If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. 

This is especially true as regards the ‘Fundamental rights’, as to which this Court has been assigned the role of a sentinel on the ‘qui vive’. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.”

If the sentinel deserts duty and the citizens rights die uncherished, the Republic too cannot long endure.

Sanjay Hegde is a senior advocate of the Supreme Court