Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 2 Updates

NOTE: The title of the post was edited subsequent to the SC rejecting a plea to reexamine the meaning of Hindutva as interpreted in the 1996 Manohar Joshi judgment

Mr. Arvind P. Datar continued his arguments on Day 2. He commenced by referring to his earlier arguments from the previous day on the interplay of Sections 98 and 99 of the Representation of People Act, 1951 (‘RPA’) and reiterated the issues framed by the three judge bench mentioned here.

He submitted that there is no conflict with the stand taken by the Supreme Court in the Manohar Joshi case. He read out several relevant portions of the judgment which talks about the mandatory nature of Section 99 especially where a returned candidate has been alleged of corrupt practice vicariously for the conduct of any other person with his consent. He stated that the question regarding the returned candidate being guilty of corrupt practice can be decided only at the end of the trial after an enquiry against the other person is concluded by issuing them notices under Section 99 and accordingly, the trial under Sections 98 and 99 has to be a composite trial. According to Mr. Datar, it will lead to an absurd situation if the trial against the returned candidate is concluded first and then the proceedings under Section 99 are commenced for the purpose of deciding whether any other person is also required to be named as being guilty of the corrupt practice. After extensive arguments on this issue, Justice Goel was of the opinion that the trial under Sections 98 and 99 must be one composite trial which may take place in two steps but not in two separate phases.

The Court then posed a question to Mr. Datar regarding the stage at which notice can be issued to a third party and the nature of such notice under Sections 98 and 99 since none of the previous cases have examined or answered this issue. Mr. Datar reiterated his submission that Sections 98 and 99 have to be interpreted to mean that notice to a third party can be issued only during trial and not at the conclusion of the trial. Furthermore, the Chief Justice opined that a notice cannot be issued mechanically by the High Court. Before issuing such notice, the High Court has to be prima facie satisfied with the role of the collaborators in the commission of the corrupt practice.

In regard to the nature of notice under Section 99, Mr. Datar referred to the third issue framed by the three judge bench i.e.,

“On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?”

Mr. Datar contended that the notice to a third party or collaborator should contain the specific charges and specific portions of the speech allegedly amounting to corrupt practice. With reference to the Manohar Joshi case, he contended that the notice does not have to be in the form of a mini judgment. At this juncture, the Chief Justice expressed reservations on the use of the phrase “mini judgment” and opined that it is not appropriate to use the word in this context.

The Court also observed that the judicial principles that govern the analogous provision contained in Section 319 of the Criminal Procedure Code should also apply to Section 99 of the RPA. The Court further observed that since it is a quasi-criminal charge under the RPA, apart from the evaluation of evidence, the third person or collaborator to whom notice is being issued has to be informed of the reasons for such issuance of notice.

Thereafter, the Court considered the issue of ‘naming’ of a third person or a collaborator under Section 99. The issues under consideration were firstly, when can you ‘name’ a third party or collaborator and secondly, whether ‘naming’ is mandatory under Section 99. Mr. Datar contended that on a conjoint reading of Sections 98, 99 and 123(3), it is clear that there are only three categories of persons who can be named i.e. the candidate, his agent or any other person who has indulged in corrupt practices with the consent of the candidate.

While dealing with this subject, the Chief Justice posed a very pertinent question as to whether a person can be ‘named’ for corrupt practices under Section 99 for a speech made prior to the elections. To exhort his point further he gave an instance where elections may be scheduled for after four years. But, a person preparing to contest the elections may request some religious leaders to make speeches on his behalf. The candidate may then use the video recording of the speech at the time of elections. In such a situation can the religious leaders be ‘named’ under Section 99 for having committed a corrupt practice since the speeches were made prior to the notification of elections?

After testing various such propositions, the Chief Justice concluded that the test is not whether the speech was made prior to the elections but whether it was made with the consent of the candidate. If it was made with the consent of the candidate then the religious leaders can very well be named for having committed corrupt practices. He further questioned whether it is mandatory for the Court to name every person who has committed a corrupt practice but is not made a party. Mr. Datar replied in the negative to this proposition.

Mr. Datar through an example sought to distinguish between two scenarios – firstly, where two corrupt practices were committed, one by the candidate independently and one by his agent. Secondly, where the candidate is alleged of a corrupt practice based on the conduct of another. He reasoned that in the first scenario since the candidate had committed a corrupt practice independently, his agent need not be named. Whereas, in the second scenario, since the allegation of corrupt practice against the candidate was based on the conduct of another person, it was necessary to name that other person in order to prove corrupt practice. Therefore, ‘naming’ under Section 99 in the second scenario was contended to be mandatory and non-compliance of which would vitiate the finding of corrupt practice against the candidate.

Taking his argument forward, Mr. Datar said that there cannot be a straitjacket formula while coming to the conclusion of corrupt practice. As stated in the second scenario mentioned above, it is mandatory to name and hear the third person who made the speech before holding the candidate guilty of consenting to the corrupt practice.

The Chief Justice opined that there cannot be recording of finding of corrupt practice unless the person who has committed such corrupt practice is identified. The Chief Justice then considered the case of Mr. Abhiram Singh on its merits and observed that since all the evidence and findings are against Mr. Abhiram Singh and he was given an opportunity of being heard and to prove his case, then it is irrelevant whether the other persons were named or not. Therefore, this does not vitiate the finding or decision against him.

Post lunch, Mr. Shyam Divan appearing for one of the respondents in a connected matter commenced his arguments by narrating the brief facts of his case. Thereafter, he addressed the Court by referring to the legislative history of Section 123(3) of the RPA in order to better understand the scope and interpretation of the said section.

Mr. Divan elaborated that the issue for consideration before the bench was only limited to the interpretation of “his religion” appearing in Section 123(3). For a better understanding of Section 123(3), Mr. Divan briefly took the Court through the parliamentary debates pertaining to the section and also the various legislative amendments to the Section.

Mr. Divan will continue with his submissions when the hearing continues tomorrow.

Seven Judge Constitutional Bench defining the limits of Section 123(3) RPA: Day 1 Updates

NOTE: The title of the post was edited subsequent to the SC rejecting a plea to reexamine the meaning of Hindutva as interpreted in the 1996 Manohar Joshi judgment

Today, a seven-judge Constitutional Bench of the Supreme Court of India comprising of Chief Justice T.S Thakur and Justices Madan B. Lokur, S.A Bobde, A.K Goel, U.U Lalit, D.Y Chandrachud and L.N Rao commenced hearing a batch of petitions to examine whether appeals in the name of religion for votes during elections amounts to “corrupt practice” under Section 123(3) of the Representation of People Act, 1951 (‘RPA’). The Court is relooking at the 1996 judgment where it was held that seeking votes in the name of “Hindutva” or “Hinduism” is not a corrupt practice and therefore, not in violation of RPA.

One of the appeals which has been tagged in the present case was filed by a political leader Mr. Abhiram Singh whose election to the legislative assembly in 1990 was set aside by the Bombay High Court in 1991 for violation of this provision.

Section 123(3) of RPA prohibits a candidate or his agent or any other person with the candidate’s consent to appeal for votes or refrain from voting on the grounds of his religion, race, caste, community or language. The issue before the Court was whether ‘his religion” mentioned in this provision referred only to the candidate’s religion or if it also includes the voters’ religion to be considered as a corrupt practice.

Mr. Arvind P. Datar, appearing on behalf of Mr. Abhiram Singh commenced his arguments by stating that for the purposes of Section 123(3) a reference to religion in a candidate’s electoral speech per se would not deem it a corrupt practice. It would amount to a corrupt practice only if such a candidate uses religion, race, caste, community or language as a leverage to garner votes either by appealing people to vote or refrain from voting on such basis. He further argued that “his religion” mentioned in Section 123(3) should be construed to mean only the candidate or the ‘rival’ candidate’s religion. It should not be read to include the voters’ religion.

In this context, the Chief Justice through an example tried to counter Mr. Datar’s submission of giving “his religion” a restrictive meaning. He put forth a hypothetical situation where a candidate belonging to religion ‘A’ appeals to people belonging to religion ‘B’ to vote for him or otherwise they would incur “divine displeasure”. In the instant case, though the candidate is not referring to his own religion but he is still appealing on the basis of religion i.e. religion of the voters. He further gave instances to draw a distinction between appealing on the basis of the candidate’s religion and religion per se.

To emphasize his point further, the Chief Justice put forth other scenarios where religious sentiments may be invoked directly or indirectly to seek votes by the candidate or any other person on his behalf. During the course of the hearing, Justice Bobde observed that “making an appeal in the name of religion is destructive of Section 123(3). If you make an appeal in the name of religion, then you are emphasizing the difference or you are emphasizing the identity. It is wrong.” The Court was inclined to give a broad interpretation to “his religion” to include within its ambit not only the candidate or the rival candidate’s religion but also the voters’ religion. .

The hearing post lunch was more focused on the merits of Mr. Abhiram Singh’s petition which devolved on the interpretation of Sections 98 and 99 of the RPA. Section 98 of the RPA provides for the decisions that a High Court may arrive at after the conclusion of the trial of an election petition. Section 99(1)(a)(ii) of the RPA further provides that in case of an allegation of any corrupt practice at an election, the high court shall name all persons who have been proved to be guilty of any corrupt practice, however, before naming any person who is not a party to the petition, the high court shall give an opportunity to such person to appear before it and also give an opportunity of cross-examining any witness who has already been examined.

In this backdrop, the following issues which were framed earlier by the three judge bench were considered by this Court:

  1. Whether the learned Judge who tried the case is required to record prima facie conclusions on proof of the corrupt practices committed by the returned candidate or his agents or collaborators (leaders of the political party under whose banner the returned candidate contested the election) or any other person on his behalf?
  2. Whether the consent of the returned candidate is required to be proved and if so, on what basis and under what circumstances the consent is held proved?
  3. On reaching the conclusion that consent is proved and prima facie corrupt practices are proved, whether the notice under Section 99(1) proviso (a) should contain, like mini judgment, extraction of pleadings of corrupt practices under Section 123, the evidence – oral and documentary and findings on each of the corrupt practices by each of the collaborators, if there are more than one, and supply them to all of them for giving an opportunity to be complied with?

The Court was of the opinion that the answer to the second issue is in the affirmative and the Court shall only consider the remaining two issues.

Mr. Datar argued that the election of Mr. Abhiram Singh was set aside by the Bombay High Court on the basis of the speeches made by Mr. Balasaheb Thackeray and Mr. Pramod Mahajan in which they made reference to ‘Hindutva’ to garner votes for the Shiv Sena and BJP candidates. His argument was that before coming to this conclusion, the Bombay High Court should have complied with the mandatory procedure provided in the proviso to Section 99(1)(a) which has been explained above.

The Court countered this submission by stating that the finding against Mr. Abhiram Singh stands independently irrespective of whether the process laid down in Section 99 has been followed by the Bombay High Court or not. The Court also observed that in case the High Court names certain individuals for indulging in corrupt practice without following this provision, then it is for such individuals to approach the High Court under Section 99. The Court further stated that the judgment against Mr. Abhiram Singh certainly cannot be vitiated due to such non-compliance. Mr. Datar continued to stress on his argument that the process under section 99 of the RPA must be followed by the High Court before any conclusion of a corrupt practice has been arrived at. He relied on the judgment passed in the earlier cases to buttress his submissions. Additional updates from Day I are available here.

The seven-judge bench will continue the hearing today. We will keep you posted regarding the further developments in this case.

Supreme Court finds Criminal Defamation Constitutional

Written by Nakul Nayak

Today, a two-judge bench of the Supreme Court found criminal defamation as constitutionally valid. Recall that the Supreme Court had reserved judgment in this matter in August last year after extensive hearings. Leaders from across the political divide, including Subramanian Swamy, Arvind Kejriwal, and Rahul Gandhi, filed these petitions challenging sections 499 and 500 of the IPC and section 199 of the CrPC – the provisions that constitute the criminal defamation regime in India.

Note that the judgment is not out yet and a deeper explication will be made after the text is made public, probably in a few hours. Preliminary updates from social media, however, suggest that the Court has justified criminal defamation as a reasonable restriction on free speech. Additionally, the Court has indulged in a balancing act between a “right to reputation” under Article 21 and free speech under Article 19(1)(a). Moreover, as per reports, the Court claims that defamation protects “societal interests” and “constitutional fraternity”. The latter is an especially vague term and deserves to be expounded in detail in the text of the judgment. An interesting aspect of the judgment should be about a reading of the safeguards inherent in section 499 of the IPC that merit a claim that the section is not open to abuse. We await the “thick” judgment.

Supreme Court to pronounce judgment on Criminal Defamation tomorrow

Tomorrow in Supreme Court’s Room no. 4 at 10.30 am a bench of Justices Dipak Misra and Prafulla Pant will pronounce the judgment regarding the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The CCG Blog

A Supreme Court bench of Justices Dipak Misra and Prafulla Pant is hearing a set of at least thirty petitions challenging the constitutional validity of criminal defamation (Sections 499 and 500 of IPC and section 199 of CrPC).

The summary of hearings from the first six days can be found here.

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SC hears the Aadhaar #NotAMoneyBill Challenge

A Supreme Court bench of the Chief Justice and Justices R. Banumathi and UU Lalit took up a petition by Mr. Jairam Ramesh, Member of Parliament (Rajya Sabha) challenging the certification of the Aadhaar Act as a money bill by the Lok Sabha Speaker today.

Senior Advocates Mr. P. Chidambaram, Mr. Kapil Sibal and Mr. Mohan Parasaran represented the petitioner and the Attorney General and Additional Solicitor General Ms. Pinky Anand represented the Government.

Mr. Chidambaram stated that the Aadhaar Bill is not a money bill, as it does not meet the criteria laid down in Article 110 of the Constitution. The bench inquired whether the question of certification is open to judicial review? Mr. Chidambaram stated that it is their stand that it is open for review whereas the AG stated that it was not open for judicial review.

The AG also raised an objection to the petitioner filing the petition under Article 32 of the Constitution. Mr. Chidambaram stated that rule of law is a fundamental right and if that is violated by the Parliament a cause of action arises. He also stated that there are judgments of the Court, which state that if there is a substantial question of constitutional law arising in a particular case a person can come to the Court under Article 32.

The AG reiterated his objection on the locus and the Chief Justice asked if the AG was saying that the rule of law is not a fundamental right? The AG stated that the rule of law is a fundamental right, however, the definition of rule of law is too broad and cases are admitted for violation of rule of law there will not be any difference between the remedies provided by Articles 32 and Article 226 of the Constitution. He stated that a matter relating to seniority of a person may involve a question of rule of law but the person cannot approach the court under Article 32.

Mr. Chidambaram stated that equating the current case to a case of seniority would be making a caricature of the argument. He stated that both the houses of the Parliament have equal status and power and in this case the decision of the presiding officer of one house has deprived the other house of its powers.

He added that in the present case the presiding officer of the Lok Sabha violated the basic rule of law and this is too grave a matter to be rejected on the argument of locus. He stated that there is a clear violation of Article 14 among others, which contains the rule of law.

On the question of judicial review, the AG stated that if a bill is certified by the Speaker as money bill that decision cannot be examined. In response, Mr. Chidambaram argued that immunity extends only to matters of procedural irregularity and not an illegality citing the Raja Ram Pal case of 2007. (For a detailed analysis of why the Supreme Court has the power to judicially review the Speaker’s decision to classify the AADHAR Bill as a Money Bill please see: Aadhaar Act as a Money Bill – Judicial Review of Speaker’s Determination Concerning Money Bills)

The Court asked both the parties to submit a list of relevant cases and listed the matter for 20th July.

I&B Ministry forms Committee to regulate content in Government Advertising

Written By Joshita Pai

Following the direction by the Supreme Court, the Ministry of Information and Broadcasting issued an order last month establishing a three member committee to effectuate the Supreme Court Guidelines on Content Regulation of Government Advertising. Government advertising refers to the use of public funds by ruling parties to project their achievements or make announcements about upcoming initiatives. These advertisements however, have occasionally been politically motivated, demonstrating the need for the guidelines issued by the Court in the Common Cause judgment. The guidelines were issued on the basis of a report submitted by a Court-appointed committee on the issue of use of public funds in government advertising.

According to the recent MIB order, the Supreme Court Guidelines will function as a stopgap arrangement until a legislation comes into force to regulate the content projected in government sponsored advertisements. The body set up by the Ministry will address complaints from the general public on violation of the guidelines prescribed by  the Court. The Committee will be assisted by a member secretary, and will be set up parallelly at the state level, appointed by the respective State Governments. The three member body will be responsible for implementation of the SC guidelines on regulating content in government advertising.

Government Advertising

Government advertising is often regarded as informative and in public interest since it facilitates circulation of necessary information with respect to upcoming welfare schemes or the progress of government initiatives. However, advertisements of this nature are often used gain political mileage. This practice has been criticized for several reasons, ranging from arbitrary use of public funds to non-objective presentation of information. Colourful presentation of information on the part of the government does not foster public interest. The right to freedom of speech and expression exercisable by the government is not dispensable but Article 19 also grants the right to information, and accurate information at that, which stands in equal measure. Balancing conflicting interests in this regard is a herculean task.

Government advertising, unlike political advertising which also often transcends permissible boundaries, is sponsored by the use of public funds that governments in power have access to. According to the Election Commission of India, the expenditure on government sponsored advertisements is incurred by the public exchequer and is contrary to the spirit of free and fair election, as the party in power gets an undue advantage over other parties and candidates. The practice has beckoned the need for an oversight authority and a set of workable standards to regulate such advertising, which have been recommended time and again, most recently in the Law Commission Report on Electoral Reforms. Moreover, the Election Commission too has assessed the mushrooming phenomenon of advertising by existing governments. In furtherance of these observations, the ECI recommended that advertisements for achievements of existing governments, either Central or State, in any manner, should be prohibited for a period of six months prior to the date of expiry of the term of the House.

The Guidelines issued by the Supreme Court     

The case that brought about the guidelines was set in motion when Common Cause and the Centre for Public Interest Litigation sought to restrain the Union of India and State Governments from using public funds on government advertising. The petitioners emphasized that the object of these advertisements is generally to promote functionaries and candidates of a political party. One of the primary objections raised in the case was that such advertising is generally politically motivated. The petition called for the Court to issue comprehensive guidelines on usage of public funds on such advertisements. Giving due weightage to the plea, the Court appointed a committee to examine best practices in order to demarcate permissible advertising during campaigning from politically motivated advertisements. The committee submitted its report to the Supreme Court in September 2014 which contained a set of guidelines on content regulation in government advertising. These guidelines will be implemented by the committee established by the MIB.  

According to the Guidelines, government advertising “includes any message, conveyed and paid for by the government for placement in media such as newspapers, television, radio, internet, cinema and such other media but does not include classified advertisements; and includes both copy (written text/audio) and creatives (visuals/video/multimedia) put out in print, electronic, outdoor or digital media.”

The guidelines further suggest that government advertisements should be politically neutral and should not include photographs of political leaders unless it is essential, in which case only the photographs of the Prime Minister/Chief Minister or President/Governor may be used.  The enforceability of the guidelines has been left to the three member body which shall recommend actions accordingly.

According to the Guidelines, regulation of content should be guided by five fundamental principles:

  1.  Advertising Campaigns to be related to Government responsibilities: The content of the government advertisement should be relevant to the government’s obligations and the rights of the citizens. 
  2. Advertisement materials should be presented in an objective, fair, and accessible manner and be designed to meet the objectives of the campaign: The content and the design of the advertisement should be executed after exercise of due care and should not present previous policies of the government as new ones.
  3. Advertisement materials should be objective and not directed at promoting political interests of ruling party: The advertisement should steer clear of making political arguments and should be neutral in nature and should not seek to influence public support.
  4. Advertisement Campaigns must be justified and undertaken in an efficient and cost-effective manner: Optimum use of public funds and cost-effective advertisements reflect a need-based advertising approach
  5. Government advertising must comply with legal requirements and financial regulations and procedures: The advertisements must be compliant with existing laws such as election laws and ownership rights.

Government advertisements are issued on several occasions. They are issued to present the completion of a successful tenure, to commemorate anniversaries of people and to announce public welfare projects. In these instances, the object of the advertisement can be achieved with objective presentation of information. The committee set up singularly seeks to ensure that the right of the government to use funds to sponsor advertisements is not misused.  

The New Dimension to the UIDAI Debate: The Aadhaar Bill, 2016

 

Written By Joshita Pai

The discourse around Aadhaar has only aggravated since its inception, and one of the primary contentions of the debate has been the lack of a statutory force behind the initiative. Amidst all the speculations, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was introduced on 3rd of March as a money bill, on the grounds that subsidies and other benefits will be drawn from the Consolidated Fund of India. The Bill seeks to resolve the contention of the lack of a legislation backing Aadhaar. The Bill also allows for more schemes to be attached to Aadhaar in future. Presently, there are a handful of schemes attached to the Aadhaar which have been approved by the Supreme Court. The Bill is an ambitious task to provide a framework for operationalization of Aadhaar.

A Cursory Glimpse

The Bill, establishing the Unique Identification Authority of India (UIDAI) as the authority for the functionality of the Aadhaar process, provides for the conferment of an Aadhaar number, to every resident who submits her identity information. The Bill, in this context defines a resident in clause 2(5). Clause 2(n) provides that identity information includes biometric information and demographic information. Biometric information includes photograph, finger print, Iris scan, or such other biological attribute of an individual as may be specified by regulations. The demographic information includes information relating to name, date of birth, address and other relevant information of an individual specified by regulations but significantly excludes information about race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history.

According to clause 9, an Aadhaar number shall not confer or be a proof of, citizenship or domicile The Bill also carries a provision which may require Aadhaar holders to update their biometric and geographic information. The inconsistency in predictability of biometric data of an individual has been a contentious issue but the object of the provision here is as mentioned, the continued accuracy of the information in the repository.

Dissecting the Clauses

The Bill elevates the existence of an Aadhaar number to a proof of identity by virtue of clause 4(3).

Chapter IV of the Bill establishes the UIDAI as a body corporate, consisting of a Chairperson, a CEO and two part-time members. The CEO of the Authority will not be below the rank of Additional Secretary to the Government and will be appointed by the Central Government. The chapter deals with functions of the members, grants by Central Government, accounts and audits, qualifications and enumerations of the members. The Authority is responsible for the establishment, operation and maintenance of the Central Identities Data Repository. Clause 49 provides that the members of the UIDAI will be deemed as public servants. Clause 50 provides that the Central Government is not empowered to issue directions pertaining to technical or administrative matters undertaken by the authority.

Clause 16 of the Bill places restrictions on the Chairperson and members of the UIDAI who have ceased to hold office. It bars them from accepting employment in any management or company, which has been associated with any work contracted by the UIDAI, for a period of three years after the expiry of their employment. Listing the functions of the UIDAI, clause 23 provides that the authority shall formulate policies, procedures for issuing Aadhaar numbers and for the performing authentication of the same. The Authority is designated to carve out regulations including process of collection of information, specify what includes biometric and geographic information. The specifications have been left open to the authority, including the appointment of an entity to operate the Central Identities Data Repository.

The Bill creates a Central Identities Data Repository [Clause 2(h)] which will be the centralized database containing all Aadhaar numbers and details thereto. It will also be responsible for authentication and verification of the information provided by Aadhaar holders, at the time of enrollment. The registration of Aadhaar, has been made voluntary by the force of the Court’s order in August, 2016.

In light of this, clause 7 of the Bill mandates that proof of Aadhaar number is  necessary for the receipt of certain subsidies, benefits and services. The clause carves out a potential exception to the effect that if an Aadhaar number is not assigned to an individual, an alternate means of identification shall be offered for delivery of benefits.

Enabling accessibility to the Aadhar process, clause 5 of the Bill provides for special measures for issuance of Aadhaar to senior citizens, children, persons with disability persons who do not have any permanent dwelling houses. The clause is inclusive in nature.

Chapter VII of the Bill deals with penalties and liabilities for several offences. Impersonation at the time of enrolment as well as impersonation for the purpose of changing the demographic information of an Aadhaar number holder, is punishable with imprisonment. Providing a heavy liability for companies, clause 43 states

Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

A provision which stands out in the chapter listing out penalties is Clause 44. It reads as follows:

(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person, irrespective of his nationality.

(2) For the purposes of sub-section (1), the provisions of this Act shall apply to any offence or contravention committed outside India by any person, if the act or conduct constituting the offence or contravention involves any data in the Central Identities Data Repository (5(f))

Privacy Provisions in the Bill

The statement of objects and reasons appended to the Bill states that it seeks to provide “for measures pertaining to security, privacy and confidentiality of information in possession or control of the Authority including information stored in the Central Identities Data Repository”. 

Chapter VI of the Bill is built around the protection of information by the Authority, collected through the enrolment process. The Bill qualifies biometric information collected and stored in electronic form, as “electronic record” and “sensitive personal data or information” within the meaning of the Information Technology Act, 2000. The distinction between core biometric information and biometric information has been visibly emphasized. Clause 29 imposes a restriction on sharing information and bars the use of core biometric information for any purpose other than for the generation of Aadhaar numbers and authentication.

Clause 28(3) reads

“The Authority shall take all necessary measures to ensure that the information in the possession or control of the Authority, including information stored in the Central Identities Data Repository, is secured and protected against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage.”

Clause 28(5) further provides that the Authority or its officers or employees or any agency which maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone.

The Bill provides for information privacy at the stage of enrollment. According to Clause 3(2), the enrolling agency, which is appointed by the UIDAI for collection of identity information is bound to inform the individual at the time of enrollment, details about (i) the manner in which information collected will be used, (ii) the right of accessibility of information at the hands of the individual and the (iii) the nature of recipients of the information.  The manner of communication of such information has been left open to specific regulations which will be prescribed by the UIDAI.

The Bill provides for authentication of Aadhaar number by a requesting entity in relation to his biometric information or demographic information. Clause 2(u) defines “requesting entity” to mean an agency or person that submits the Aadhaar number, and demographic information or biometric information, of an individual to the Central Identities Data Repository for authentication.

Clause 8(2) makes it mandatory for the entity requesting authentication to obtain consent from the person whose information is to be collected for such authentication. It requires the requesting entity to ensure that the identity information of an individual is only used for submission to the Central Identities Data Repository for authentication. The clause further provides that the Authority shall respond to an authentication query with a positive, negative or any other appropriate response sharing such identity information excluding any core biometric information.

With respect to identity information, clause 29(3) restricts the use of such information available with a requesting entity and states that the identity information will only be used for the purpose specified to the individual at the time of enrollment and only with the prior consent of the individual.  Clause 32 enables an Aadhar number holder to access her/his own information and also mandates that records of request of authentication of an individual, should be maintained.

The functions of the Authority include performing authentication of Aadhaar numbers, deactivation of Aadhaar numbers. Clause 23(m) empowers the Authority to specify, by regulations, various processes relating to data management, security protocols and other technology safeguards under this Act; The UIDAI, according to Clause 23(q) is also entrusted with the function of promoting research and development for advancement in biometrics and related areas, including usage of Aadhaar numbers through appropriate mechanisms;

Disclosure of Information

Envisaging an exception to the protection of information provisions, clause 33 allows for disclosure of information in certain instances. It provides that disclosure of information, including identity information or authentication records is permissible if made in pursuance of an order of a Court (at least District judge), or in the interest of National Security by an officer of the level of Joint Secretary or above. However, the Bill does not define national security and the term in itself is vague and overbroad. It provides that such a direction shall be reviewed by an oversight committee consisting of Cabinet Secretary and Secretaries of Legal Affairs and DeitY. The problems of third party independent oversight and the volume of requests remain as is the case with the oversight committee under the Blocking Rules and the Telegraph Rules. The provisio appended to clause further provides that the direction in the interest of national security shall lapse after the expiry of three months from the date of issue.

Clause 37 of the Bill enshrines a penal provision for unauthorized disclosure of any identity information collected in the course of enrollment or the authentication process. This provision speculates a penalty for individuals as well as companies who engage in unwarranted disclosure. The Bill imposes a penalty for unauthorized access to the repository (clause 38), for tampering with data on the repository (clause 39). Chapter VII further provides for punishment of a requesting entity for unauthorized use of identity information.

The Bill contains vital provisions in terms of requesting entity applying for authentication, access of identity information by an Aadhaar-number holder to introducing liabilities. However, a deeper glance shows that several regulations are yet to be prescribed and have been left open-ended. The actualization of a legislation should however, not be conceived as a satisfactory response to the yet to be heard struggle for determining privacy as a constitutional right.              

 Joshita Pai was a Fellow at the Centre for Communication Governance from 2015-2016