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.

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

Supreme Court refers clarifications on Aadhar to the larger bench

Written By Joshita Pai

The Supreme Court has rejected the plea of the Union Government and several other public organisations to stay the interim order passed on the 11th of August, 2015 in the Aadhar matter. The Court has declined the request for making Aadhar mandatory except for availing LPG and PDS services. It has referred all applications seeking clarification or revocation of the order to a larger bench of the Supreme Court, which would also be presiding on the issue of privacy.

The larger bench is yet to be constituted, however the lawyer for the petitioner has asked the Chief Justice to constitute the bench at the earliest and the Chief Justice has asked the petitioners to present their case in court tomorrow.

Many schemes such as digilocker which will serve as an e-locker for official documents and the Online Registration System, an e-health-centric initiative by Deity require one to enter their Aadhar number for access; there has been a blatant disregard of the limited purpose prescribed by the order. The Court, earlier in the month asked the Centre to strictly comply with the order and reminded it that the mandatory nature of aadhar is applicable only to LPG and PDS schemes.

The reservation of a clarification and a stay on the application of aadhar is certainly going to pace up the setting up of a constitutional bench. The execution and continuation of several projects and social schemes now hinge on the decision of the Court. The Constitutional bench is now entrusted with deciding on the scope and utility of Aadhar, over and above determining the existence of privacy as a fundamental right.

Aadhar case: Ready Reckoner

By Shrutanjaya Bhardwaj

Date Summary Links
23 September 2013

The Supreme Court issued an interim order saying that Aadhaar card is not mandatory. It observed that:

“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.”

Outlook India,

Zee News

Order

8 October 2013 The Court rejected the Centre’s plea to revise its earlier order and make Aadhaar cards mandatory for social welfare schemes heavily subsidized by the government. NDTV
26 November 2013 The Court passed an order impleading all states and UTs in the case. Order
24 March 2014

The Supreme Court reiterated the above:

“If there are any instructions that Aadhaar is mandatory, it should be withdrawn immediately.”

The Court also restrained the UIDAI from transferring any biometric data to any agency without the consent of the person. In doing so, it reversed the order of the P&H High Court.

[Different case: The High Court order was aimed at helping investigations into a 14-month-old rape case in Goa.]

Dailymail, Hindu, Indian Express, Livemint
3 February 2015

The Court asked the Narendra Modi government to clear its stand on whether it intends to continue with the UPA government’s plan to allow Aadhar as proof of identity for direct transfer of cash for social welfare schemes. The bench, headed by Chief Justice HL Dattu, sought the clarification from Solicitor General Ranjit Kumar:

“We have read it in the newspapers that there is some rethinking on the scheme. You have to tell us by Friday next,” the bench said.

Financial Express
13 February 2015 Solicitor General Ranjit Kumar cleared the Government’s stand, saying that the Government will go ahead with the UID project. Deccan Herald
13 February 2015 RBI was impleaded as a party, since the petitioner had claimed that the central bank was asking for the Aadhaar number to open bank accounts and know-your-customer documents. Livemint
16 March 2015

The Solicitor General admitted and the Court took note of the fact that the Aadhaar number was being asked for by governmental agencies for anyone to be able to avail their services. Relevant extracts from Order:

“In the meanwhile, it is brought to our notice that in certain quarters, Aadhar identification is being insisted upon by the various authorities, we do not propose to go into the specific instances. Since Union of India is represented by learned Solicitor General and all the States are represented through their respective counsel, we expect that both the Union of India and States and all their functionaries should adhere to the Order passed by this Court on 23rd September, 2013.”

Hindu, DNA,

Business Standard

16 July 2015 The Centre urged the Court to vacate its two-year old stay on mandatory Aadhaar cards, citing the “tremendous success” of the Aadhaar project. Telegraph India
21 July 2015 Attorney General Mukul Rohtagi told the Court that the matter needed to be transferred to a Constitution Bench, since important questions were being raised. Livemint
22 July 2015 Attorney General Mukul Rohtagi told the Court that there is no fundamental right to privacy in India, as per an eight-judge bench decision of 1954. Indian Express
22 July 2015 The Court said it was inclined to refer the matter to a higher bench. Newsgram
22 July 2015 Matter part heard in Court – Mukul Rohtagi, K.K. Venugopal finished submissions and Shyam Divan started – listed for 23 July.
23 July 2015 Matter part heard in Court – Shyam Divan argued for the first half of the day, and Gopal Subramaniam argued for the second half – listed for 28 July.  
28 July 2015 Matter part heard in Court, listed for 29 July  
29 July 2015 Matter part heard in Court, listed for 30 July  
30 July 2015 Centre opposed plea seeking initiation of contempt proceedings in Court Zee News
30 July 2015 Matter part heard in Court, listed for 4 August  
6 August 2015 Order reserved – on whether the matter must be referred to a higher, Constitution bench or not – to be given out on Tuesday, 11 August Indian Express, Economic Times

(Shrutanjaya is an intern at CCG & a fourth year student at National Law University, Delhi)

Govt pushes UID Bill through to quash SC case

Author: Nikhil Kanekal

The union government’s swift approval of the National Identification Authority of India Bill through the cabinet of ministers on 8 October, even as its law officers stood before the Supreme Court in a related case, is a strategic move that could make the public interest petition infructuous.

If the bill clears Parliament during the winter session, then the United Progressive Alliance’s Unique Identity scheme will finally attain legitimacy and statutory backing. The bill could fashion conditions under which it is mandatory to get an Aadhar card to avail certain public services. This was the stance taken by the government before the court, which is scheduled to hear the matter on 22 October. The supply of subsidised gas is likely to temporarily cease, since the court decided not to modify its order of 23 September.

The current case is causing controversy because certain government departments have made it mandatory to possess an Aadhar card to avail of basic public services. The petition was brought by a retired judge of the Karnataka high court who was asked to obtain an Aadhar card to be paid his dues.

One of counsels for the petitioner admitted that if Aadhar gets Parliamentary approval, the case would fall apart. But the counsel added that they would challenge the newly formed law in that scenario. “Yes, the case will become infructuous. We will have to challenge the law.”

Meanwhile, a fresh news report reveals that thousands of school students not being able to get access to benefits of scholarships announced by the government in Jharkhand:

Data from the district welfare office show that 23, 817 children availed themselves of post-matric scholarships for the SC/ST and OBCs — one of the seven schemes linked to Aadhaar — in 2011-12. But in 2012-13, after Aadhaar was made mandatory for students, this dropped by 35 per cent to 15,638. The sharpest reduction is in the number of beneficiaries from tribal families. In 2011-12, 16,058 ST students got scholarships, while the next year this fell to 8,985.

SC asks Govt to make sure Aadhar not mandatory to avail services

Author: Nikhil Kanekal

In a writ petition challenging the Indian government’s tacit insistence on citizens using Aadhar cards for public services,  the Supreme Court passed an interim order on Monday asking the government to make sure that no citizen is denied services for not possessing an Aadhar card.

A bench comprising justices B. S. Chauhan and S. A. Bobde directed the union government to ensure that “no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory”.

The court also asked the government to make sure that Aadhar cards are not being given to illegal immigrants: “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 government admitted before the Supreme Court that Aadhar cards were in fact not compulsory. To be sure, the Unique Identity Authority of India (UIDAI), which issues the Aadar cards as a universal identity to citizens, has said Aadhar is not mandatory for public services. However, it increasingly appears that basic public services are not available to citizens that don’t have an Aadhar card. This is being achieved by linking services with Aadhar. In some parts of India this could mean that a person needs to have a UID to get subsidized cooking gas. Although citizens are normally able to avail public services through various other forms of state-issued identification (such as passport, driver’s licence, voter ID, PAN card), the processes being followed by the central government and some state governments on certain public services (registration of marriage) and subsidies (cooking gas) has led many to believe that it is only a matter of time before Aadhar becomes mandatory in order to deal with the state.

In the instant case, a retired judge of the Karnataka High Court was told that he would not be paid his salary and dues, unless he got himself an Aadhar card. Unwilling to accept this, he filed a petition in the Bombay High Court.

An excerpt from a Press Trust of India report carried by Business Standard:

During the brief hearing, the bench of justices B S Chauhan and S A Bobde was told that despite the fact that the Aadhar card is “voluntary” in nature, an order has been issued by the Registrar of the Bombay High Court in pursuance of an order of the state government that it would be necessary for disbursal of salary of judges and staff also.

“The scheme is complete infraction of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty). The government claims that the scheme is voluntary but it is not so.

“Aadhar is being made mandatory for purposes like registration of marriages and others. Maharashtra government has recently said no marriage will be registered if parties don’t have Aadhar cards,” senior advocate Anil Divan, arguing for Justice (retd) K S Puttaswamy, former judge of Karnataka High Court, said.