5418 - TRUMPING THE CARD - Telegraph India

TRUMPING THE CARD

An interim order by the Supreme Court has raised questions on the validity of the government’s Aadhaar scheme. Sonia Sarkar looks at the implications

It’s 11 in the morning, and it’s business as usual in Delhi’s commercial hub, Connaught Place. But the security guard standing outside the glass door of an office in a high-rise building is leisurely drinking tea. There are hardly any visitors coming in.

The Unique Identification Authority of India (UIDAI) office, once a hub of activity, bears a deserted look. Yet, even some months ago, corporate bigwigs from India and abroad would land up there to meet its then boss, Nandan Nilekani. Everybody wanted their Aadhaar cards, which had been launched at a cost of Rs 3,300 crore in 2009.

On March 24, the Supreme Court (SC) of India said in an interim order that people without Aadhaar cards should not be deprived of government benefits. The order came in response to a public interest litigation (PIL) filed by former Justice K.S. Puttaswamy and retired major general S.G. Vombatkere, challenging the constitutional validity of Aadhaar.

On the same day, the SC stayed the order of the Goa bench of the Bombay High Court asking the UIDAI to share fingerprint details of a rape accused with the CBI. “The UIDAI stated that this would open up the floodgates for all kinds of requests for resident data,” Nilekani wrote in his blog on March 24.

“When it (Aadhaar) was launched, the government said the scheme would help transfer the benefits of various government subsidy programmes directly to the people. After the SC interim order, it clearly means that you do not have to have an Aadhaar card to get the benefits,” says Colonel (retd) Mathew Thomas, who too had filed a petition in the SC questioning the Aadhaar, under which every citizen is given a specific identification number.

Shyam Divan, the counsel for Vombatkere, told the court that there was no statute to back the project and even if there was one, it would violate the fundamental rights under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution as the project enables surveillance of individuals and impinges upon the right to human dignity.

So far, UIDAI has been functioning under an executive order issued by the government in January 2009, as an attached office of the Planning Commission. Even before the National Identification Authority of India Bill (the proposed legislature for UIDAI) was passed, UIDAI was issuing Aadhaar cards.

Aadhaar-enabled service delivery initiatives have been linked to various government schemes such as payment of wages, social security benefits including old age payments and distribution of LPG cylinders. Maharashtra and Delhi made Aadhaar compulsory for opening of bank accounts, rent agreements and marriage certificates.

Many have said that the scheme violates human rights because citizens have to submit their biometric details (such as fingerprints and an iris scan) to get their unique numbers. These details of the 59.4 crore people who have received their Aadhaar cards have already been recorded by the UIDAI.

The card has been courting controversy from the beginning. Four major PILs have been filed in the SC. Two question the constitutional validity of Aadhaar. The third, filed by social activist Aruna Roy, makes a plea against making Aadhaar mandatory for benefits such as pensions and scholarships. The fourth holds that Aadhaar lacks statutory backing. The apex court is also hearing a batch of pleas against decisions of some states to make Aadhaar numbers compulsory for a range of activities including payment of salary, provident fund, marriage and property registration.

In September, the Supreme Court said Aadhaar was not mandatory for citizens to get benefits of government schemes. It also asked the government not to issue the card to illegal migrants. In November, it issued notices to 11 states on a PIL questioning the legal validity of the Aadhaar card as well as the authority to link it with certain services and benefits. On March 24, the court directed the government to withdraw all orders that made Aadhaar mandatory for any service.

“The UIDAI always said it was a voluntary scheme. It is the state government which made it mandatory, not us,” stresses Zoheb Hossain, the assisting lawyer of solicitor-general Mohan Parasaran.

The government, the UIDAI argues, launched Aadhaar to eradicate fraud, black-marketeering and pilferage in its beneficiary schemes. “Aadhaar is the only foolproof mechanism to check misuse of subsidies,” attorney-general G.E. Vahanvati and Parasaran, representing UIDAI, told the court in their submission.

UIDAI’s opponents, however, believe that the scheme is flawed. They have questioned the agencies put in charge of enrolling people, the involvement of dubious companies and the ever-increasing cost of the project.

Cases of fake enrolment have been rampant under Aadhaar. In 2013, newspaper reports revealed that in Bangalore, Aadhaar cards have been issued in the name of a chair, dog and tree. A recent sting operation by an investigative portal said people who posed as refugees from Nepal, Bangladesh and Pakistan were permitted to sign up for the scheme.

“If a person had a fake ID all these years with his photo and address on it, his Aadhaar ID is also fake because it is based on a fake card,” says Rajeev Chandrashekhar, a Rajya Sabha MP critical of the system. “Aadhaar doesn’t have a mechanism to distinguish between a citizen and a non-citizen. So taxpayer-funded subsidies and cash transfers can go to illegal immigrants,” Hossain says.

A senior advocate associated with the case stresses that through UIDAI, the government can keep tabs on people’s whereabouts. “If bank accounts are UID-enabled using biometrics, then wherever we withdraw money from is recorded. What right does the government have to know about my whereabouts? Is it a police state,” he asks.

According to the Supreme Court, UIDAI cannot impart data with anyone without the consent of the individual. “We have always stated that the data collected from residents would remain private, and not be shared with other agencies,” Nilekani writes in his blog.

Clearly, the controversy over the UID will continue to rage over the next few months. The matter is expected to come up for a final hearing either in April or in July, after the summer break.

“We want the court to strike down the UIDAI scheme,” a lawyer fighting UIDAI says. “The scheme can be saved if the court gives us certain guidelines on how to function,” Hossain holds.

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.

4804 - SC rejects Centre’s plea to modify its order on Aadhaar - The Hindu

SC rejects Centre’s plea to modify its order on Aadhaar

October 8, 2013 , By PTI 

Aadhaar is the only fool proof mechanism to check misuse of subsidies, claims the government.

The Centre on Tuesday failed to get any relief on Aadhaar card being made compulsory for availing social benefits, particularly gas cylinder subsidies, from the Supreme Court which turned down its plea to modify its interim order that no person be deprived of any schemes for want of Aadhaar.

A batch of top government lawyers including Attorney General G.E. Vahanvati and Solicitor General Mohan Parasaran tried their best to convince the court to modify its order, saying that it would severely affect grant of gas subsidies and the entire distribution system in 97 districts would come to a standstill.

However a bench of Justices B.S. Chauhan and S.A. Bobde said it would pass the order after getting the response of the petitioners on the application moved by the Centre.

The bench in its interim order had said that the Aadhaar card be not made mandatory for people for availing any government services and nobody should be deprived of any such facilities for the want of the card.

The bench however agreed to give an urgent hearing on a bunch of petitions challenging the legal status of Aadhaar card being issued by Unique Identification Authority of India (UIDAI).

Observing that the prevailing situation is a “double edged problem”, the bench said that no order can be passed without hearing the parties who challenged the Aadhaar and posted the case for final hearing after Dussehra vacation.

Pushing hard to convince the bench, the AG submitted that the apex court interim order would have serious implications and thousands of people who are given gas cylinder subsidies would be affected.

“Aadhaar is the only fool proof mechanism to check misuse of subsidies. People won’t get gas cylinder subsidies. 76 per cent consumers are registered under the Aadhaar and they will be affected,” the AG submitted.

Additional Solicitor General L. Nageshwar Rao, appearing for oil PSU, also pleaded for modification of order, saying that distribution system would come to a grinding halt and we cannot get back to the old system.

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

NEW DELHI, October 8, 2013

Final hearing on Aadhaar card on Oct. 22

LEGAL CORRESPONDENT

Aadhaar is the only fool proof mechanism to check

 misuse of subsidies, claims the government.

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

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

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

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

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

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

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

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

4768 - Supreme Court to hear plea on keeping Aadhaar card for subsidy - Business Standard

IANS  |  New Delhi  October 4, 2013 Last Updated at 19:02 IST

Supreme Court to hear plea on keeping Aadhaar card for subsidy

The Supreme Court will next week hear a plea by the petroleum and natural gas ministry seeking modification of its Sep 23 order so that Aadhaar card continues to be mandatory for the direct transfer of subsidy on cooking gas cylinders to domestic consumers.

A bench of Chief Justice P. Sathasivam and Justice Ranjan Gogoi said it would hear the ministry's plea Oct 8 after Solicitor General Mohan Parasaran mentioned the matter Friday morning.

The court had Sep 23 ruled that Aadhaar card was not mandatory as a proof of identity for getting the government benefits under several welfare schemes, including the National Food Security Act.

The apex court by its order had said that "no person should suffer for not getting the Adhaar card in spite of the fact that some authority had issued a circular making it mandatory".

The court's order had came in the course of the hearing of a PIL by Justice (retd.) K Puttaswamy seeking direction to restrain the government, the Planning Commission and the Unique Identification Authority of India (UIDAI) from issuing Aadhaar cards in the wake of a Jan 1, 2009 decision of the government.

The petroleum secretary in an application Friday told the court that its Sep 23 order amounted to clamp down on the Direct Benefit Transfer for Liquefied Petroleum Gas Consumers (DBTL) scheme as it mandatorily requires the beneficiary to possess a Unique Identification for receiving subsidy

The direct subsidy scheme was launched June 1, 2013 and covers 54 districts in the country.

The petroleum secretary in his application said that under the scheme, the Aadhaar number is merely required to be produced to the cooking gas distributor and the consumers' bank so that the subsidy could be transferred directly into the bank account of the consumer.

The DBTL scheme was launched to ensure that the cooking gas consumers' entitlement was not diverted and to prevent leakage in the subsidy. The subsidy amounted to Rs.39,558 crore during 2012-13, the ministry told the apex court.

The ministry, in its application, said the subsidy per cylinder works out to be slightly more than Rs.555 and given the gap in the marker price and the subsidised price, there was a strong temptation and allurement to divert the domestic cooking gas for commercial purposes. Such a scenario not only defeats the propose of the policy but also causes loss to exchequer.

The average market price of domestic cooking gas cylinder is Rs.943.36 and the retail selling price is Rs.410.50, therefore the quantum of subsidy per cylinder works out to be Rs.555.55, the application said.

Urging the court to modify its Sep 23 order so that the ministry could mandatorily insist on Aadhar card for making subsidy payments to those entitled under the DBTL scheme, the application said that it would help in eliminating the diversion of subsidized cylinders into the black market.

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

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

SC's Aadhaar ruling - Much ado about nothing?

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

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

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

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

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

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

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

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

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

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

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