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All Posts | Sep 01,2020

Government of Rajasthan clarifies to SFLC.IN that Aadhar is not mandatory for COVID-19 testing

Government of Rajasthan clarifies to SFLC.IN that Aadhaar is not mandatory for COVID-19 testing

Recently, it was brought to our notice that the Rajasthan government had made Aadhaar mandatory for the RT-PCR mobile app during sample collection of COVID-19 tests vide their guidelines dated 25.07.2020.

In this regard, SFLC.IN had written to the Chief Minister of Rajasthan Government, Minister of Health and Family Welfare in Rajasthan, and to the Principal Secretary of Health urging them to withdraw the mandatory requirement of Aadhaar for RT-PCR mobile app when the samples for COVID-19 tests are collected. The decision by the Government of Rajasthan was not only exclusionary in nature but also in violation of the judgment of the Supreme Court in Justice Puttaswamy v. Union of India (2019 (1) SCC 1) wherein it was held that Aadhaar is mandatory for:

a. filing income tax returns; and

b. for availing government subsidies charged upon the Consolidated Fund of India.

In this regard, we received an email from the Health department of Rajasthan government on 31.08.2020 stating that the Aadhaar has not been made mandatory for COVID-19 testing. We commend this step by the Rajasthan government. 

However, the Rajasthan government is yet to update the of guidelines stating the same. We have written to the Chief Minister of Rajasthan, Minister of Health and to the Principal Health Secretary of the Rajasthan Government requesting to update their patitent testing guidelines clarifying that any government identification card will be accepted for COVID-19 testing. 

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All Posts | Aug 20,2020

Letter to Ahmedabad Municipal Corporation against mandating Aadhaar for COVID-19 testing

Letter to Ahmedabad Municipal Corporation against mandating Aadhaar for COVID-19 testing

Recently, Ahmedabad Municipal Corporation made Aadhaar mandatory for COVID-19 testing in Ahmedabad's Urban Health Centres. 

This decision by the Municipal Corporation of Ahmedabad is in violation of the judgment of the Supreme Court in Justice Puttaswamy v. Union of India (2019 (1) SCC 1) wherein it was held that Aadhaar is mandatory only for :

a) filing Income Tax returns; and

b) for availing government subsidies charged upon the Consolidated Fund of India. 

This step will exclude people who do not have Aadhaar cards. 

Any step taken by the Government(s) must be constitutionally tenable and in consonance with the law of the land. Through this letter, we have urged the Municipal Corporation to withdraw the mandatory requirement of Aadhaar for COVID-19 testing and instead use any of the government identification cards. 

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All Posts | Aug 10,2020

Rethink Aadhaar for ILGMS: Civil Society Groups write to the Kerala Government

Rethink Aadhaar for ILGMS: Civil Society Groups write to the Kerala Government

Digital rights organisations Rethink Aadhaar, Article 21 Trust, Internet Freedom Foundation, SFLC.in and SMC endorse a legal notice sent to the Government of Kerala by Bezwada Wilson and Kalyani Menon-Sen (prominent civil society activists, and petitioners in the Puttaswamy case, challenging the constitutionality of Aadhaar), asking that it sever all links with Aadhaar, in relation to its recently launched Integrated Local Self Governance Management System (ILGMS).

ILGMS, developed by the Information Kerala Mission brings all civic registration processes under one common platform and portal and provides a single window for all services and payments related to birth, death and marriage registrations, tax payments and pensions. As per circulars dated 14.05.2020 and 28.05.2020, this is being rolled out across districts across Kerala in a phased manner beginning July 2020. However, the online portal can only be accessed if a registrant inputs their Aadhaar number.

The legal notice brings to the Kerala government’s notice the constitutional and practical bars preventing it from requiring or even using Aadhaar verification for ILGMS. In KS Puttaswamy v Union of India (2019 10 SCC 1), a constitutional bench of the Supreme Court significantly curtailed the Aadhaar project, in light of it’s surveillance, security and exclusionary harms. The Court held that three conditions had to be met in order for the use of Aadhaar to be constitutional: the presence of a legitimate state aim to use Aadhaar numbers; Second, the presence of an enacted law permitting such use; And third, the requirement that this law conform to the ‘doctrine of proportionality’. This is a strict test: in the same judgement the Supreme Court struck down the use of Aadhaar for ‘seeding’ in bank accounts, despite an enacted legislative measure providing for it, finding that it did not pass the test of proportionality.

In the Puttuswamy case, Aadhaar verification was deemed permissible only for a strict category of “Section 7” subsidies and benefits, drawn from the Consolidated Fund of India, and for PAN linkage (the deadline for which has been extended multiple times). The Court cautioned against the proliferation of the use of Aadhaar, holding that “their scope is not to be unduly expanded thereby widening the net of Aadhaar”.

Since its inception, the Aadhaar project been shown to pose serious threats of surveillance, safety, security and health risks to the population, and any database or project associated with it runs the risk of being compromised.

In light of this, and in the interests of security, safety and efficacy of the ILGMS system, it is imperative the Kerala government withdraw the order mandating the use of Aadhaar for registrants to the ILGMS system.

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All Posts | Jul 30,2020

Letter to Rajasthan Government Against Mandating Aadhaar For COVID-19 Testing

Letter to Rajasthan Government Against Mandating Aadhaar For COVID-19 Testing

It was brought to our notice that the Rajasthan's Ministry of Medical, Health and Family welfare vide their guidelines dated 25.07.2020 has made it mandatory to add a person's Aadhaar details in RT-PCR application during sample collection for COVID-19. 

This decision by the Government of Rajasthan is in violation of the judgment of the Supreme Court in Justice Puttaswamy v. Union of India (2019 (1) SCC 1) wherein it was held that Aadhaar is mandatory only for :

a) filing Income Tax returns; and

b) for availing government subsidies charged upon the Consolidated Fund of India. 

This step by the Government of Rajasthan is in violation of the Puttaswamy judgment, and will exclude people who do not have Aadhaar cards. 

Any step taken by the Government(s) must be constitutionally tenable and in consonance with the law of the land. Through these letters to the Chief Minister of Rajasthan, Minister of Health, and Principal Secretary of Health, we have urged them to withdraw the mandatory requirement of Aadhaar for RT-PCR mobile app when the samples for COVID-19 tests are collected.

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All Posts | Aug 30,2017

Celebrating the Right to be Let Alone

SFLC.in is holding a discussion on “Celebrating the Right to be Let Alone” on Saturday, September 02, 2017, from 4:00-6:00 PM at the SFLC.in premises at K-9, Second Floor, Birbal Road, Jangpura Extension, New Delhi -110014 near Jangpura Metro station – Gate no 2.

During this time, we will celebrate the recognition of right to privacy as a fundamental right, discuss the recent privacy judgment, its key takeaways, the impact it will have on the pending Aadhaar litigations, how it will affect various aspects of policy making and the way forward from here. Speakers would include experts from academia, civil society and law.

Please join us for an amazing discussion with food and drinks. As we have limited seating available for this discussion, we would request you to send us an RSVP latest by Friday, September 01, 2017. In case of any query and/or clarification, please do not hesitate to get in touch with us.

Please RSVP here: https://www.eventbrite.com/e/celebrating-the-right-to-be-let-alone-tickets-37412775619

All Posts | Aug 24,2017

[Press Release] Supreme Court holds that Right to Privacy is a Fundamental Right

In a historic judgment, the 9 judge bench of the Hon’ble Supreme Court has unanimously held that Right to Privacy is a fundamental right. This judgment was pronounced in a reference made to the 9 judge bench in a batch of Writ Petitions challenging the Aadhaar scheme. Dr. Nagarjuna G., member of the Governing body of SFLC.in and Mr.Vickram Crishna, member of the Advisory Board were petitioners in T.C. (Civil) No. 152 of 2013 that was referred to the Constitutional bench.

Mishi Choudhary, President, SFLC.in said:
“This is a milestone in a large history across the world on understanding of the right to privacy. The largest democracy in the world has now spoken on the question which we all face because 20th century constitutions, let alone earlier constitutions did not tend to speak of right to privacy and they certainly didn’t speak of it in terms which allowed its application to the needs of human beings in the 21st century networked society. Supreme Court of India has taken an enormous step which is going to be looked upon by societies of law around the world with enormous importance.”

It was incomprehensible that the existence of this right could be disputed in this day and age, specially considering the Government’s adoption of increasingly data-centric governance models. To transform India into a “digitally empowered society and a knowledge economy” as the Digital India initiative envisions, it is necessary to respect the individual’s right to privacy at all levels of governance, starting with the Constitution itself. The historic 9-judge Constitution Bench of the SC has done extremely well to recognize this fact, demonstrating yet again that the judiciary places the interest of the people above all else.

The petition in the case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors. [W.P.(C). No. 494/2012], was filed in the Supreme Court to challenge various aspects of the Aadhaar Card scheme and its mandatory nature. The petitioners asserted that the collection of biometric data for Aadhaar card is violative of the right to privacy, which is implied under Article 21 as well as various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.

The three-Judge Bench hearing the Puttaswamy case observed in its order dated 11th August, 2015 that the matter entailed questions of importance involving interpretation of the Constitution. Hence, it referred those substantial questions of law to a Constitutional Bench of appropriate strength. Thereafter, a five-Judge Bench was constituted to determine the Bench strength eligible to decide the question of right to privacy. In light of previous judgments on the issue of privacy, this five-Judge Bench referred the question of whether there is a fundamental right to privacy to a larger nine-Judge Constitution Bench on 18th July, 2017.

For more information please contact:
Mishi Choudhary,
President,
SFLC.in
+1 917 325 8594
mishi@softwarefreedom.org

Image Credit: Legaleagle86 at en.wikipedia [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

All Posts | Aug 24,2017

Supreme Court upholds Right to Privacy as a Fundamental Right

In a momentous judgment delivered in the case of K. S Puttaswamy (Retd.) & Anr. v. Union of India & Ors. [Writ Petition (Civil) No. 494 of 2012] today, the Supreme Court of India affirmed that citizens have a fundamental right to privacy. The nine-judge Constitution bench comprising Chief Justice of India (CJI) J.S Khehar, and Justices D.Y. Chandrachud, J. Chelameshwar, S.A. Bobde, A. Nazeer, R.K. Agrawal, R.F. Nariman, A.M. Sapre, and S.K. Kaul, held in a unanimous decision that Right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty under Article 21 of the Constitution and other freedoms guaranteed under Part III of the Constitution.

The nine-judge Bench was tasked with answering the specific question of whether the previous Supreme Court judgments in M.P. Sharma v. Satish Chandra [AIR 1954 SC 300] (an eight-judge Bench) and Kharak Singh v. State of Uttar Pradesh [AIR 1963 SC 1295] (a six-judge Bench) were correct in holding that the Constitution of India does not envisage a fundamental right to privacy.

CJI J.S. Khehar read out the operative portion of the judgment:

(i) The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled;
(ii) The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled;
(iii) The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.
(iv) Decisions subsequent to Kharak Singh which have enunciated the position in (iii) above lay down the correct position in law.

The full text of the judgment is available here.

Image Credit: Legaleagle86 at en.wikipedia [CC BY-SA 3.0 or GFDL], via Wikimedia Commons

All Posts | Aug 19,2017

Nine-judge Constitution Bench of Supreme Court hears arguments on right to privacy: Updates from day 6

A nine-judge Constitution Bench of the Supreme Court (SC), comprising Chief Justice of India (CJI) J.S. Khehar and Justices D.Y. Chandrachud, J. Chelameshwar, S.A. Bobde, A. Nazeer, R.K. Agrawal, R.F. Nariman, A.M. Sapre, and S.K. Kaul, heard arguments today on whether Indian citizens enjoy a fundamental right to privacy. This question, among others, was referred to a Constitution Bench by an SC order in August 2015, while hearing a batch of petitions led by Justice K.S. Puttaswamy and Ors. v. Union of India and Ors [W.P.(C). No. 494/2012] that challenged various aspects of the Aadhaar scheme. A Constitution Bench of five-judges was subsequently formed by the CJI on July 12 for the purpose, and in its first hearing held on July 18, the five-judge Bench referred the narrow issue of right to privacy to a larger nine-judge Bench. The nine-judge Bench is now tasked with answering the specific question of whether two previous SC judgments [M.P. Sharma v. Satish Chandra (AIR 1954 SC 300), eight-judge Bench; Kharak Singh v. State of Uttar Pradesh (AIR 1963 SC 1295), six-judge Bench] that held that the Constitution of India does not envisage a fundamental right to privacy holds true today.

Today’s arguments began with Senior Advocate Gopal Subramanium submitting on behalf of the petitioners that the SC’s decision in M.P. Sharma, was based on the contemporary view that fundamental rights must be seen as being separate and distinct from one another and that Article 21 of the Constitution (Right to Life and Personal Liberty, in which right to privacy is said to inhere) is merely a residual right. He pointed out that M.P. Sharma was concerned primarily with whether the Criminal Procedure Code’s provisions on search and seizure violated the right against self-incrimination, in which context the SC observed that the Indian Constitution does not contain any provisions like the American Fourth Amendment, and therefore does not guarantee a fundamental right to privacy. In the Kharak Singh decision that dealt with surveillance by the state, while the majority of judges held that the Constitution does not provide for a right to privacy, Justice Subba Rao wrote in dissent that Article 21 is not a residual right but a full-fledged one, and said that privacy is a facet of liberty. Mr. Subramanium submitted that liberty and privacy are pre-existing natural rights rather than rights that have been conferred by the state, and that if liberty is a fundamental value of our Constitution, then privacy is inherent in that value. That said, privacy is not a penumbral right that exists in the shadow of other rights, rather it is the essence of liberty.

Mr. Subramanium then drew attention to the words “liberty” and “dignity” as they appear in the Preamble to the Constitution and said they are intended to convey an inherent right recognized by the Constitution. Privacy, he said, is embedded in both these words – a fact that was reflected in both Govind v. State of MP (AIR 1975 SC 1378) and the dissenting opinion in Kharak Singh. Other words that appear in the Preamble, namely “democratic” and “republic”, also invoke the idea of liberty, as does its guarantee of freedom of thought, which cannot be invoked without liberty and privacy. Speaking on the conjunction of Articles 14 (Right to Equality), 19 (Right to Freedom) and 21 of the Constitution, Mr. Subramanium argued that these rights can only exist under limited government, and that after the SC’s decision in Maneka Gandhi v. Union of India (AIR 1978 SC 597), they must be read together. The right to equal protection under law guaranteed by Article 14 also protects liberty, and the exercise of freedoms guaranteed by Article 19 involves the exercise of liberty and by extension, privacy. In other words, everything done in the exercise of liberty requires privacy.

Justice Chandrachud interjected at this point by asking about the contradiction that arises when individuals place their information in the public while at the same time claiming privacy. Justice Nazeer also supplemented the question by asking about the boundaries of privacy – whether it translates to a right to be left alone. Mr. Subramanium responded by stating that protection of one’s personal space does not only mean protection of physical space. He explained that privacy has four aspects i.e. spatial, decisional, informational, and the right to develop one’s personality. In all these aspects, Mr. Subramanium said privacy is important. Justice Chandrachud then interjected again, asking if the state is under an obligation to legislate to protect privacy, seeing how Article 14 is a direct injunction against the state and Article 19 has a horizontal element, which Mr. Subramanium answered in the affirmative. He submitted that the combined reading of the SC’s decisions in Maneka Gandhi and Govind, along with Articles 14, 19 and 21, makes it clear that there exists a fundamental right to privacy, though the contours of this right will have to be dealt with separately. He concluded his arguments by reading out portions of relevant precedents from both India and the United States that support the existence of a fundamental right to privacy.

Senior Advocate Soli Sorabjee then argued briefly on behalf of the petitioners, reiterating that privacy is an inalienable right that inheres in the very personality of human beings. He also said that the absence of an express right to privacy from the Constitution does not mean that such a right does not exist. He pointed to how the courts have deduced the existence of a right to freedom of press from right to free speech guaranteed under Article 19(1)(a), and said that it is possible to deduce unenumerated rights from enumerated ones.

Mr. Shyam Divan commenced his arguments for the petitioners after Mr. Sorabjee. He pointed out that there has been an unbroken line of judgments in India since 1975 that have recognized the right to privacy under part III of the Constitution, and said that now is the time to affirm rather than regress the existence of that right which has been enjoyed by the Indians for four decades. He continued that right to privacy itself cannot be defined with any specificity and would develop on case by case basis, but it certainly included bodily integrity, personal autonomy, right to be left alone, informational self-determination, dignity, confidentiality, compelled speech, freedom of thought, among others.

In the context of Aadhaar and bodily integrity, Mr Divan said that a body belongs to a state in a totalitarian regime. If a person is compelled by State to give his biometrics for any purpose, it would be an invasion of his privacy and bodily integrity. Expanding upon informational self-determination, as an aspect of privacy, Divan argued, that a person must have control over how much information he wants to put out there. He should not be compelled to give the information, but should have the element of choice else it violates the right to privacy. Citing the nine-judge bench in I.R. Coelho v. State of Tamil Nadu (AIR 2007 SC 861), he said that the Constitution is a living document. He argued that privacy emanates from a conjoined reading of the golden triangle of Articles 14, 19 and 21. He further relied upon India’s international obligations to cover privacy as a right under part III.

Mr Divan then referred to several judgments that affirmed the right to privacy over time. He reiterated that the majority decision in Kharak Singh was overruled by Maneka Gandhi, as it was based on the doctrine propounded in A.K. Gopalan v. State of Madras (AIR 1957 SC 27), and the minority view was accepted as correct. He further stated that the judgment in M.P. Sharma was clearly distinguishable, referring to several other cases.

Taking his arguments further, he said that right to privacy is an internationally recognized human right and referred to international instruments including the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). He further made a mention of the report by special rapporteur appointed by United Nations Human Rights Council for privacy. Justice Chandrachud, making his observations on this aspect, said that as per the European Court of Human Rights, right to privacy is not necessarily co-extensive with right to data protection. He observed that data protection is a matter of statutory protection while privacy is a matter of constitutional protection. He further explained that not every aspect can be covered by privacy, with some falling under the ambit of data protection. Hence, privacy can not be regarded as an absolute right.

Mr Divan further argued that it was pertinent to recognize right to privacy under Part III of the Constitution so that the citizens have a remedy to approach the court in case of infringement. On being asked by the bench if he wanted to place right to privacy under Part III only for remedial purposes, Divan clarified that under Part III, degree of protection is much higher and thus, it casts a positive obligation on the State to ensure that the right is not violated. Concluding his arguments, Mr Divan stated that the mark of a civilization is how it treats personal privacy of individuals – if right to privacy is not recognized under Part III, then a large number of rights will be denuded of their vigor and essence.

Senior Counsel Arvind Datar began his submissions by placing two questions before the bench: first, what is the ratio decidendi of M.P. Sharma and Kharak Singh, and second, were they constitutionally correct? He asserted that the questions in M.P. Sharma and Kharak Singh were confined to self incrimination under Article 20(3) and freedom of movement under Article 19(1)(d), respectively. Both the judgments contained one stray comment on privacy, and the question of whether there is a fundamental right to privacy never came up for consideration. Mr. Datar read out passages from the M.P. Sharmajudgment and discussed the statements made on the Fourth and Fifth Amendments of the American Bill of Rights. Further, he gave the example of the American case Olmstead vs. United States that held that wiretapping was not a violation of the Fourth and Fifth Amendments, but was subsequently overruled by Katz vs. United States. The dissenting judgment of Justice Louis Brandeis in Olmstead vs. United States that mentioned “right to be let alone” was particularly important and gained significance with respect to the right to privacy. The landmark cases of Griswold vs. Connecticut and Roe vs. Wade were also mentioned by Mr. Datar in light of the reading of right to privacy in the Ninth and Fourteenth Amendment.

Further, Mr. Datar explained the judgment in Kharak Singh and how the majority opinion was to strike down Section 236 (b) of the UP Police Regulations that allowed “domiciliary visits” to the petitioner’s house. He emphasized that it is paradoxical that in the 21stcentury and in the largest democracy in the world, the right to life and personal liberty under Article 21 includes forty other rights but not the right to privacy. At this point, Justice Chandrachud interjected to point out that the cases of R. Rajagopal vs. State of Tamil Nadu (AIR 1995 SC 264) and Mr. X vs. Hospital Z (1998 Supp. (1) SCR 723) talked about privacy with respect to private entities, but fundamental rights are not applied horizontally. He also remarked that privacy can be deemed an amorphous concept under Article 21 without exhaustively defining its contours. Its boundaries have to be developed on a case to case basis. Justice Chandrachud also mentioned that every element of liberty does not include privacy. Liberty and privacy intersect but privacy is a smaller subset of liberty. CJI J. S Khehar concurred with Justice Chandrachud. Lastly, Justice Nariman put forth the question: if privacy is grounded in Articles 14, 19 and 21, what are the parameters of challenging the right? Mr. Gopal Subramanium answered saying it will be challenged with respect to the restrictions provided under each of these rights. Justice Nariman mentioned that the case of R.C Cooper held that Fundamental Rights are not watertight compartments and can overlap with each other, but it did not say anything with respect to challenging these rights. He later agreed that the challenge has to be looked at on a case to case basis.

The hearing will continue tomorrow.

All Posts | Aug 04,2017

[Press Release] High Court permits filing of Income Tax Returns without quoting Aadhaar

Kochi, 4th August 2017: Prasanth Sugathan, Legal Director at SFLC.in filed a Writ petition (W.P.(C) 26033/2017) before the Hon’ble High Court of Kerala , challenging the mandatory requirement as per Section 139AA of the amended Income Tax Act, 1961 to quote Aadhaar number or enrolment ID for filing Income tax returns.

The Hon’ble High Court has admitted the matter and passed an interim order, directing the concerned Income tax Officer to allow the petitioner to file IT Returns manually, without quoting Aadhaar number or Aadhaar enrollment ID.

Earlier this year, the Supreme Court heard the challenge of mandatory linking of Aadhaat to PAN in the cases of Binoy Viswam v. Union of India (W.P.(C) 247/2017), S.G. Vombatkere & Anr. v. Union of India (W.P.(C) 277/2017) and the two-judge bench held that the PAN cards of those people who are not Aadhaar card holders, and who do not comply with the provision of Section 139(2), cannot be “treated as invalid for the time being”.

Prasanth Sugathan submitted before the Hon’ble Court that the partial stay granted by the Hon’ble Supreme Court in the Binoy Viswam case would be futile, if assesses are forced to quote Aadhaar No. while filing the returns.

Mishi Choudhary, President, SFLC.in said that they have been continuously working to raise awareness about the mission creep that is happening with the Aadhaar scheme. The so-called voluntary scheme is being made mandatory for citizens to avail a host of services as well for performing obligations as a citizen.

The interim order can be read here:

About SFLC.in :
SFLC.IN is a donor supported legal services organisation that brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world. SFLC.IN promotes innovation and open access to knowledge by helping developers make great Free and Open Source Software, protect privacy and civil liberties for citizens in the digital world by educating and providing free legal advice and help policy makers make informed and just decisions with the use and adoption of technology.

For more information please contact:

Mishi Choudhary,
President and Founding Director, SFLC.in
+1 917 325 8594
mishi-at-softwarefreedom-dot-org

Prasanth Sugathan,
Legal Director, SFLC.in
+91 90135 85902 / +91 94472 91565
prasanth-at-sflc-dot-in