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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 | Jun 28,2017

Hearing Update: Shantha Sinha & Anr. v. Union of India; June 27th, 2017

The Supreme Court on Tuesday, June 27, 2017, heard the petition against notifications making Aadhaar mandatory for social welfare schemes [Shantha Sinha & Anr. v. Union of India (W.P. (C) 342/2017)] for the grant of interim relief. You can read the summary from the previous hearing here.

The hearing started with the Additional Solicitor General seeking an adjournment of the matter for responding to the rejoinder filed by the petitioners. Referring to an Office Memorandum issued by the Ministry of Electronics and Information Technology on June 22, 2017, which extended the deadline to enroll for Aadhaar for availing various benefits till September 30, 2017, he argued that there was no burning urgency anymore to hear the matter.

The counsel for petitioners, Mr. Shyam Divan,did not oppose the request for adjournment, however, he contended that the said memorandum extended the deadlines only for those beneficiaries who did not have Aadhaar. Those having an Aadhaar number are still required to furnish it after June 30th in order to avail benefits of the schemes. Therefore, he requested that, an order be passed to the effect that no one would be deprived of the benefits of the schemes for non-production of Aadhaar number till the next date of hearing.

However, the court said that it cannot issue any interim order or mandamus on mere apprehensions. It asked the petitioners if they had any evidence to show that such exclusions had taken place since the issue of the notifications, where people were deprived of the benefits to which they were entitled. The court said that it would take such evidence as a test for urgency. To this, Mr. Divan replied that such exclusions would took place only after the deadline of June 30th, and that it is imperative for all the beneficiaries to be protected irrespective of whether they possess an Aadhaar number or not.

The court, in its order, noted that in view of paragraph 90 of the judgment in Aadhaar-PAN case, which categorically states that enrolment to the Aadhaar is not compulsory, no further observation is required.

The court directed the respondent to file its response to the rejoinder within a week and listed the matter on July 7th, 2017 for further hearing.

All Posts | May 19,2017

Hearing Update: Shantha Sinha & Anr. v. Union of India; May 19th, 2017

The petition against notifications making Aadhaar mandatory for social welfare schemes- Shantha Sinha & Anr. v. Union of India [W.P. (C) 342/2017] was taken up in the Supreme Court today before a bench of Justices A.M. Khanwilkar and Navin Sinha for interim relief. The petitioner, represented by Sr. Advocate Mr. Shyam Divan, prayed for a stay on Government notifications that made Aadhaar mandatory for seventeen social welfare schemes including, among others, schemes for hot cooked meals, several scholarships for disabled students and students of SC, ST, OBC categories, women rescued from trafficking, bonded labourers, and relief for Bhopal gas leak victims, while the constitutionality of Aadhaar is pending final adjudication by this court. He insisted that the matter be treated as urgent as the deadline for Aadhaar enrollment to avail the benefits of these schemes is 30th June, 2017.

The Attorney-General raised preliminary objections saying that rule nisi has been issued in this petition on 9th May, 2017. He argued, that this petition is identical to another petition [S.G. Vombatkere and Anr. v. Union of India and Anr.; W.P. (C) 797/2016] in which rule was issued. Identical prayers were made in that case six months ago but no stay was granted. Moreover, he said that there are 25 such petitions now challenging various aspects of Aadhaar, which have been referred to a Constitution Bench. Whenever they applied for a modification of the order in any of these petitions, it was sent to the Constitution Bench. Therefore, the AG submitted that this application should be heard by the Constitution Bench only.

In reply to the above objections, Mr. Divan referred to the order on 9th May, 2017, which tagged the present petition with W.P. (C) 494/2012 (Justice K S Puttaswamy and Anr. v. Union of India and Ors.). He submitted that the court recorded their submission of urgency of the matter and granted them liberty to approach the Chief Justice for hearing of the interim prayers, following which a mention was made before Chief Justice. The Chief Justice directed the hearing before the vacation bench.

He further argued that the notifications, whose stay has been sought in this case, were issued in Februray, after the previous petition (S.G. Vombatkere v. Union of India) was filed. There were no notifications when the earlier petition was filed. The interim prayer was of general nature as no immediate cause of action arose then. Moreover, the previous interim applications were never listed or heard.

He prayed to the Court for a stay on the Aadhaar Act, stay on the notifications issued under Section- 7 of the Aadhaar Act, to pass an order declaring that no person shall be deprived of the benefits for want of Aadhaar, pass an order directing a nationwide campaign emphasising that Aadhaar is not mandatory.

Mr. Divan cited the orders of the Apex Court stating that Aadhaar is voluntary. He said that the entire architecture created by Aadhaar is that of a surveillance State and it allows the State to completely dominate the individual through creating extensive electronic records on their person and activities.

Mr. Divan said that he had no objections with all the interim applications being listed together but he requested that the matter be heard before 30th June as it is the last day for enrolling for Aadhaar to avail benefits of these seventeen schemes. Replying to the objection that the matter be heard by a Constitutional Bench, Mr Divan said that the earlier modification order was sent to a Constitution Bench as the Union sought the modification of the three-Judge order. However, in this case, they were only seeking a reiteration of the order.

The Attorney-General submitted that 115 crore Aadhaar cards have already been issued and the idea behind it is that these benefits should not go to a ghost (a fictional beneficiary registered to defraud). He reiterated that Aadhaar is not compulsory. The only requirement, he said, is that the beneficiaries either have Aadhaar, or have enrolled, or have applied for enrollment by 30th June. Moreover, if they are not able to enroll, they may register their request for enrollment by providing mobile numbers and few other details. The AG also questioned all the urgency, pointing out that no one who wants benefits under these schemes has approached the court despite this being a public interest litigation.

Mr. Divan, countering the above arguments, said that a person is excluded from the benefits of these schemes unless he has Aadhaar or has applied for it. As per the proviso, till Aadhaar is assigned, a beneficiary will have to show either an enrolment slip or furnish their request for enrollment. Thus, in order to avail benefits under these schemes, either one has to be enrolled or one has to apply to be enrolled, effectively making Aadhaar mandatory.

The Bench deferred the hearing to 27th June, 2017. It directed the respondents to file counter affidavit opposing the grant of interim relief within three weeks and the petitioner to file the rejoinder within one week.

All Posts | May 15,2017

Summary Report – Revisiting Aadhaar: Law, Tech and Beyond [May 9, 2017; New Delhi]

On 9th May, 2017, SFLC.in in association with IT for Change and Digital Empowerment Foundation, organized a panel discussion titled “Revisiting Aadhaar: Law, Tech and Beyond” at India International Centre, New Delhi. Saikat Datta, Policy Director, Centre for Internet and Society moderated the panel comprising Anivar Aravind, Founder/Director at Indic Project; Anupam Saraph, Professor and Future Designer; Prasanna S., Advocate; Shyam Divan, Senior Advocate, Supreme Court of India; Srinivas Kodali, Co-founder at Open Stats; Osama Manzar, Founder and Director, Digital Empowerment Foundation; Usha Ramanathan, Legal Researcher. The event was meant as a forum for stakeholders to discuss recent developments around Aadhaar and formulate community responses to the concerns therein.

The discussion started with a brief introduction by Mr. Prasanth Sugathan (Legal Director, SFLC.in) of SFLC.in’s work related to Aadhaar, covering among others, our catalogues of notifications making Aadhaar mandatory for various purposes, violations of the Supreme Court’s orders limiting the use of Aadhaar, and known breaches and leaks from the Aadhaar database. Mr. Saikat Datta on his opening remarks dealt with a number of interesting developments around the Aadhaar Project – such as the notification of the Aadhaar Act, Aadhaar enrolment being mandatory for availing various benefits and subsidies from the Government, and a series of incidents where individuals’ Aadhaar information was leaked from Government databases – and opened the panel for discussion.

Mr. Osama Manzar said that in the name of e-governance and automation, we have put all our data online. While this may be a great step towards digitization of data, he said it is exclusionary at the same time for anyone who lacks understanding of how technology works. Therefore, even though our focus is inclusion, we are effectively excluding people. We do not have the technological capacity and the capacity to realize that sometimes central databases do not match with biometrics and hence getting entitlements becomes difficult.

Mr. Anivar Aravind pointed out that Aadhaar is not an open source project, as none of the technological infrastructure that has been built by UIDAI so far is open for anyone to audit. The argument that Aadhaar must be saved in light of the significant financial investments already made into the project, does not hold up because Aadhaar is defective by design. Despite assurances that the Aadhaar project’s technical design has secured its database against leaks and breaches, a large number of data leaks have already been reported. Since Aadhaar is linked to centralized services such as Unified Payment Interface, Aadhaar Enabled Payment System, and Bharat Bill Payment System, these should be checked upon and regulated to protect consumer interests. Mr. Aravind said that today, the Government is asking us to trust them blindly without providing a system to audit the technical aspects of Aadhaar and the services linked to it.

Mr. Srinivas Kodali said he has been documenting issues around cyber security breaches and actively writing about them. He recalled an instance, where he had reported an early Aadhaar leak containing the information of 5-6 lakh children to the UIDAI and National Critical Information Infrastructure Protection Centre, and suggested that they do a forensic investigation into the leak, only to have no action taken. Mr. Kodali said he has been working on the scale of actual impact of Aadhaar leaks and that there is ample evidence of data leaks from Government databases. According to him, the security of the Aadhaar system is poor and prone to hacking. He also pointed out that people who built the Aadhaar system, now no longer work for the UIDAI and instead run businesses on top of the Aadhaar framework, thus creating conflict of interest.

On being asked about the Supreme Court’s response to the petitions filed against Aadhaar, Mr. Shyam Divan said that there is no accountability within the Court when it comes to how the roster is assigned. He also said that the Chief Justice of India feels there are not enough judges to spare for the 9-judge Constitution Bench, which is to examine crucial questions of law related to the citizens’ right to privacy in connection with the petitions filed against Aadhaar. Therefore, we are stuck in a difficult position and can only hope for interim relief. Mr. Divan pointed out that the judiciary needs to make its stance clear on the following issues: 1) Who does the body belong to? 2) Issues related to limited governance. 3) Right to Privacy. He added that Aadhaar is an untested technology and an instrument of oppression and exclusion. Even in the hypothetical absence of the Constitution of India, each one of us still has fundamental rights merely by virtue of being human, and these rights cannot be taken away by a project like Aadhaar.

Mr. Anupam Saraph said that the design flaws in Aadhaar start at the assumption that it is a database that identifies millions, which is false. There is no authority to certify proof of identity and address in Aadhaar. Unlike passport, driving license, ration card and other identification documents, there is no verification of Aadhaar details, except by private entities that we have no knowledge of. Also, registrars have the power to retain our data. There is no mechanism within the Aadhaar database to distinguish between citizens-non-citizens, terrorists and innocent citizens. He compared Aadhaar to acquiring AIDS; because it attacks its own citizens by lacking the ability to differentiate between aliens and non-aliens and denying individuals their rights and benefits. Further, he pointed out that recently, a minister admitted that 34,000 Aadhaar enrolment agencies had been blacklisted for indulging in malpractices. On an average, the data shows that thirty thousand enrolments are done by one enrolling agency. On multiplying thirty thousand by thirty four thousand, we get 1.2 billion which is almost the entire database. Therefore an audit is imperative to verify all the data held in the Aadhaar database. Mr. Saraph also mentioned that since the data collected by these rogue agencies is questionable, Aadhaar is a huge threat to national security and should have been shut down long ago. He suggested that we should take a leaf out of the British Parliament that repealed the Identity Cards Act, 2006 and the National identity Register that contained the biometrics and personal details of millions of card holders was publicly destroyed. Mr. Saraph said that we need to pass a legislation that debars Aadhaar in the interest of national security.

Mr. Prasanna S, pointed out that the Government has been coming up with contradictory narratives in an attempt to challenge the maintainability of the petitions filed against Aadhaar. Initially, when the project was challenged, they argued that the petitions were delayed and suffer from latches, but on the other hand, they also said that the petitions were premature as the Parliament had not passed the Bill then. They say Aadhaar is both voluntary and mandatory. On being questioned about authentication failure and leaks, the Government says these are teething problems, while they defend the project saying it is a fait accompli. He also elaborated on the new projects that are being built with Aadhaar as its foundation. Terming Aadhaar an evidence-collecting mechanism rather than a unique identity scheme, Mr. Prasanna said the project has been a systematic attack on consent since its inception. He highlighted that irrespective of whether we value consent or not, there are rights that need to be protected by the State. Quoting the jurist and philosopher Ronal Dworkin, he said rights give the law a claim to respect, and that without rights, law is just brutality.

Dr. Usha Ramanathan explained that Aadhaar is an “identification” project and not a “unique identity” project. It was brought into the Government by the private sector, therefore there are private ambitions floating out of it, so the government is satisfying a double-agenda. She said that the meaning of rights and restrictions have interchanged in these times. Over the years, restrictions have become more fundamental and the Government is shifting from rights to a governance framework. She was also of the view that individuals need to care more about the Aadhaar project and the manner in which it is being implemented. She highlighted the importance of civil disobedience and the need to learn a common humanity. She emphasized that blind obedience is the worst thing in a democracy – people should be encouraged to interrogate and question. She said that freedom cannot be compartmentalized, and that we need to take responsibility for everyone.

A number of interesting questions were asked and remarks were made by the audience, a notable few of which were:

  • Can Aadhaar enable the government to track down activists? Mr. Srinivas Kodali answered that while the Aadhaar system is certainly capable of being used to profile individuals, he doesn’t believe the UIDAI is actively doing so. However, the large scale collection personal information by private players for Aadhaar authentication etc. is still cause for concern, he said. Dr. Ramanathan added that with Aadhaar’s linkage to all kinds of essential activities and services, and with the Government reserving the right to disable Aadhaar cards, it is very easy for the Government to target activists and other dissenting voices through Aadhaar, should they wish to do so.

  • A petition has been filed in the Supreme Court challenging the money bill aspect of the Aadhaar Act. Will the court ever look into it? Mr. Shyam Divan answered that any reasonable person who looks at the Aadhaar Act will know its not a money bill. He said that he is hopeful the court will look into this aspect and not hide behind the argument that the Lok Sabha speaker’s call is final. It is the judiciary that is the final authority on this. Mr. Divan also remarked that the Aadhaar project is an architecture for hundred percent mass surveillance over the lifetime of Indian citizens. It is going to affect peoples’ political and social choices, and must therefore be challenged.

  • Is there any way to deactivate / cancel an Aadhaar number? To this, Mr. Prasanna suggested that Section 23 of the Aadhaar Act, which empowers the UIDAI to omit/deactivate Aadhaar numbers, may be invoked to request the UIDAI to deactivate an Aadhaar number. He made it clear however, that Section 23 merely reserves this broad power for the UIDAI and in no way creates an obligation to honor such requests.

  • The judiciary is unable to contain the massive violation of interim orders and the manner in which the project is being implemented. What does the common citizen do? Mr. Divan answered that we have to be optimistic and keep fighting – we must not give up hope. Mr. Anupam Saraph mentioned that if the court does not give a favourable judgment, then individuals have to start interpreting what civil disobedience means to them.

All Posts | May 05,2017

Panel Discussion – Revisiting Aadhaar: Law, Tech and Beyond [May 9, 2017; New Delhi]

The last one year has seen a number of interesting developments around the Aadhaar project, such as the notification of the Aadhaar Act, Aadhaar enrolment being made mandatory for availing various benefits and subsidies from the Government, and a series of incidents where individuals’ Aadhaar information was leaked from Government databases.

Against this backdrop, SFLC.in, in partnership with the Digital Empowerment Foundation and IT for Change, is organizing a panel discussion titled, “Revisiting Aadhaar: Law, Tech and Beyond” on Tuesday, May 9, 2017, from 3:30 PM – 6:00 PM at Lecture Hall No 1, India International Centre (Annexe), New Delhi. This event is meant as a forum for stakeholders to discuss recent developments around Aadhaar and formulate community responses to the concerns therein. Panelists for this discussion will be:

  • Saikat Datta; Policy Director, Centre for Internet and Society (Moderator)
  • Anivar Aravind; Founder/Director at Indic Project
  • Anupam Saraph; Professor and Future Designer
  • Prasanna S; Advocate
  • Shyam Divan; Senior Advocate, Supreme Court
  • Srinivas Kodali; Co-founder at Open Stats
  • Osama Manzar; Founder and Director, Digital Empowerment Foundation
  • Usha Ramanathan; Legal Researcher

If you are interested in attending this event, kindly send an RSVP to mamta@sflc.in latest by Sunday, May 7. Alternatively, you can register to attend at this [link].

All Posts | May 04,2017

Supreme Court hears the Aadhaar-PAN case; updates from Day 6

Arguments in the Supreme Court litigations around linking Aadhaar with PAN, challenging the constitutionality of Section 139AA of the Income Tax Act, were concluded today by Senior advocate Mr. Arvind Datar (also see our updates from day 1day 2day 3day 4, and day 5 of this litigation).

Replying to the State’s arguments, Mr. Datar advanced the following contentions today:

  • Legislative competence: All the previous Supreme court orders including the one passed by a Constitutional bench on 15th October, 2015 pronounce that Aadhaar is voluntary. As long as that order stands, the legislative power of the Parliament under Article 246 remains eclipsed. The question before the court is: if a judgment is given qua executive power, can the Parliament exercise legislative power without removing the basis of the earlier orders? Mr. Datar pointed out that Article 73 of the Constitution says that executive power is coextensive with legislative power and if there is a restraint on executive power, there will be a restraint on the former as well. If the Supreme court has passed an order, it is as binding on the Parliament as it is on any other organ of the State. Therefore, the Parliament had no legislative competence to enact Section 139AA, linking Aadhaar to PAN. The only situations in which Section 139AA can be deemed valid are: 1) Aadhaar is made mandatory under Section 3, and 2) Inserting a non obstante clause under Section 139AA (notwithstanding anything in any other law)
  • Article 14 and Article 19(1)(g): The distinction made under the Aadhaar Act between individuals and companies has no rational nexus with the object sought to be achieved by the Act. Further, proportionality has been a facet of Article 14 since 1959 [Chintaman Rao v. State of Madhya Pradesh; (1950) SCR 759]. Mr. Datar highlighted that proportionality is a part of Article 19(1)(g) as well. A number of small entrepreneurs will be at risk if their PAN is invalidated. This is not a proportional restriction under Article 19(6).

Mr. Datar finished his arguments by appealing to the court to strike down Section 139AA of the Income Tax Act or at least read it down to make the Aadhaar-PAN linkage voluntary.

Senior Counsel Mr. Salman Khurshid also made a brief submission, countering the State’s argument that individuals do not have an absolute right over their body. He explained the meaning of human dignity and the importance of freedom of choice. He said that the measure of a nation is not just its economic growth, but the protection of dignity of every individual.

The State and the petitioners have finished their arguments and the matter is now reserved for judgment.

All Posts | May 03,2017

Supreme Court hears the Aadhaar-PAN case; updates from Day 5

The ongoing challenge in the Supreme Court regarding the linking of Aadhaar for filing of income tax returns, and making it mandatory for PAN, has reached Day 5 when the Union of India continued its arguments. We have been updating details from court proceedings from day 123, and 4 as well.

Day 5 of the hearing began with Dr. Arghya Sengupta laying the following points before the Bench:

  • The doctrine of proportionality is not a facet of Article 14 of the Constitution. It can only be invoked in cases where there is a balancing of rights and restrictions, and Article 14 does not envisage any such balance. Citing the case of K.T. Plantation vs. State of Karnataka, Dr. Sengupta said that the plea of proportionality is subjective by nature and therefore cannot be used to strike down a statute. He further mentioned that proportionality under Article 14 applies only to executive action and not legislative action. A long list of English cases were cited in this regard and to support the argument that in the UK, the doctrine of proportionality is not applied even today. He concluded by saying that the traditional principles of equality followed by Indian judiciary are strong and there is no need to import new principles to this case.

  • There is no absolute right to self determination under Article 21 in India. The state can ask for information from its citizens. Even if we had the right to informational self determination, it cannot be absolute. Further, the conception of privacy prevailing in different parts of the world cannot be incorporated in India. The social and cultural situation has to be assessed before giving meaning to this concept.

  • The safety and security of biometrics as a tool for identification has been studied and analyzed and it has been proven that it is the most fool proof method. He stated that the Aadhaar Act provides privacy protection under Chapter 6 of the Act and under Section 70 of the Information Technology Act, 2000. It was also pointed out that the UIDAI database has never been compromised.

Mr. Zoheb Hossain, Advocate-on-Record, continued the State’s argument. He made the following points:

  • A progressive taxation regime is itself a facet of equality under Article 14. Inclusion of Aadhaar strengthens Article 14 as it eliminates inequality between honest tax payers and individuals avoiding tax and holding multiple bogus PAN cards.

  • Every conduct is not free speech. In the present case, it is speech combined with action and therefore it cannot have protection under Article 19(1)(a). He cited United States vs. David Paul O’Brien to substantiate his argument.

After the state concluded its arguments, Senior Counsel, Mr. Shyam Divan replied from the petitioners’ side. His arguments are as follows:

  • The state has reconciled the voluntary nature of the Aadhaar Act and the mandatory nature of Section 139AA of Income Tax Act to infer that Aadhaar is mandatory. Section 3(1) of the Aadhaar Act uses the word “entitled” and not “obliged”. Section 3(2) says that the enrolling agency shall “inform” enrolling individuals, the manner in which their information shall be used, the nature of recipients with whom the information might be shared, the existence of a right to access information. Section 7 says alternate means of identification is to be provided if Aadhaar is not assigned. Section 8(2)(a) requires consent of an individual before collection of information. Aadhaar enrolment form also states that its free and voluntary. The Aadhaar Authentication Regulation number 6 states that consent of Aadhaar holder is required for authentication. The proviso to Section 57 states that the section is subject to the procedure and obligation under Section 8. The aforementioned sections establish the voluntary nature of Aadhaar as provided in the Act itself. Further, the absence of any sanctions in the Act for non compliance reinforces this fact. Mr. Divan pointed out that the UIDAI website itself claims that Aadhaar is voluntary.

  • Replying to the Attorney General’s argument that Aadhaar act cannot be struck down for lack of legislative competence, Mr. Divan pointed out that there are implied limitations to legislative competence. One of the implied limitations is that the state cannot coerce people to part with their biometric data. We are long past slavery and servitude. He further mentioned that the trajectory of the state’s arguments will create a chilling effect. He emphasized the enormous threat to civil liberties in the present case and prayed to the court to pass interim orders, in case the matter is referred to a larger bench.

Senior Counsel, Mr. Arvind P. Datar continued arguing for the petitioners’ made the following point before the court rose for the day:

  • The Aadhaar Act fails on the aspect of legislative competence. The Supreme Court has passed various orders saying Aadhaar is voluntary and nobody can be forced to enrol under it. The state has repeatedly defied these orders. On the assumption that there’s no Supreme Court order, even then Aadhaar Act and Income Tax Act have to be harmoniously construed, which means that Section 139AA of the IT Act has to be read down.

The hearing in the present matter will be concluded tomorrow with Mr. Datar finishing his final arguments.

All Posts | May 02,2017

Supreme Court hears the Aadhaar-PAN case; updates from Day 4

The State’s reply in the Aadhaar-PAN linking case was heard today (our coverage of arguments from previous hearings can be accessed at these links: Day 1Day 2Day 3). Attorney General, Mr. Mukul Rohatgi, arguing for the State laid down the following points:

  • The only issue to be considered in this case is the validity of Section 139AA. The petitioners’ lawyers have argued the issue of privacy which is already pending to be heard by a Constitution Bench and therefore not relevant in the present case.
  • A statutory provision can be questioned on the basis of two grounds only: 1) Legislative competence 2) If it is in violation of the Constitution. Legislative competence is established by Articles 246, 248 read with entries 82 and 97. On the second ground, the Attorney General pointed out that income tax by its very nature is coercive, so there is no question of it being in violation of Article 19. Further, he said that Article 21 cannot be invoked merely on the question of taxation. The Parliament is the sole authority to decide the rules of taxation.
  • PAN card was introduced in 1975 to give unique identities to tax payers. It was necessary during that time for orderly collection of taxes. In today’s world, we have to keep pace with technology and hence move towards a more fool-proof method of identification to prevent de-duplication of identity, which is only possible through collection of biometrics. He further highlighted that we live in a world where we are frisked for security reasons, and our fingerprints are taken for issuance of passport. Therefore, the right of bodily integrity is not absolute. Quoting Rousseau and the social contract theory, he said that the state is like a corporation and the citizens are its members. To avail benefits from the state, we need to comply with the rules and regulations made by it.
  • Interim orders passed by the Supreme Court cannot act as legislative estoppel because the orders were passed when Aadhaar was an executive scheme.
  • Section 7 and Section 57 of the Aadhaar Act establish the mandatory nature of the Act. Therefore, it cannot be said that Aadhaar is purely voluntary in nature.
  • India has international obligations under the various treaties signed with other countries for exchange of financial information of its citizens staying abroad, most notably the Foreign Account Tax Compliant Act. The Attorney General went on and explained the various benefits of Aadhaar including curbing black money, transferring benefits and preventing leakages. He mentioned that the right to be forgotten is a luxury of the rich. The poor do not want to be faceless. They want to have an identity and receive welfare benefits.

The hearing will continue tomorrow and Dr. Arghya Sengupta and Zohaib Hossain will argue for the State.

All Posts | Apr 28,2017

Supreme Court hears the Aadhaar-PAN case; updates from Day 3

The hearing for the Aadhaar-PAN case spilled over to day 3 with Senior Counsel, Shyam Divan making his concluding remarks. Attorney General, Mukul Rohtagi, representing Union of India is scheduled to raise his arguments in reply on Tuesday, 2nd May, 2017. Updates from day 1 and day 2 of this hearing can be accessed here.

 On day three of the hearing, Mr. Shyam Divan arguing for the petitioners laid the following points:

  • The right to informational self determination should be made a facet of Article 21. He quoted the population census decision of the German Federal Constitutional Court in which the new basic right of informational self determination was invented. It is considered the legal anchor for data protection in Germany. The protection of personal data is essential for a free and self determined development of the individual. Informational self determination and data protection have two corresponding effects: the individual is shielded from interferences in personal matters, thus creating a sphere in which he or she can feel safe. At the same time, data protection is also a precondition for citizens’ unbiased participation in the political process of the democratic constitutional state. The democratic state relies on the participation of all citizens and its legitimacy is based on respecting each person’s individual liberty. Neither the right to informational self determination nor a general right to privacy are explicitly mentioned in the German Constitution (Grundgesetz). However, the Federal Constitutional court had recognized a general right to personality which encompasses protection of human dignity and protection of personal liberty. In the Indian context, it is the legitimate concern of the petitioners to demand informational self determination even if the court does not consider it a constitutional value. The proof of identification and address is given to private parties and not to any government official, therefore informational self determination gets magnified by the manner Aadhaar is being implemented, by forcing individuals to part with their sensitive information.

[A few articles that Mr. Divan mentioned while discussing informational self determination can be accessed herehere, and here]

  • Registrar is an entity authorized by the UIDAI, and could be a bank, public sector employees, or any other agency. They are partner to UIDAI vide a Memorandum of Understanding and are the trustee of information given to them by individuals under Aadhaar. The functions of registrars includes, retaining of biometric data and demographic data till it is transferred to UIDAI. Also, registrars are allowed to formulate their own security policy. Mr. Divan further pointed out that the registrars have no privity with the Government. He called it a complete debasement of individuals’ right to informational self determination.
  • To compel individuals to speak to a third party about their confidential data is a violation Article 19(1)(a). He cited the 1986 judgment of Bijoe Emmanuel v. State of Kerala, where the court had recognized the students’ right to not sing the national anthem as part of Article 19(1)(a) and Article 25.
  • The State has no legislative competence under Entry 82 of List 1 or any other legislative power to secure dominance over an individual’s fingerprints and iris scans. There is no theory of eminent domain with regard to the body, except in narrowly tailored circumstances like border control and prisoners’ identification. He also went on to highlight that whenever a person gives anyone his personal data, the property and entitlement to that data remains with the individual. The state is merely a trustee and hence cannot force the individual (beneficiary) to part with his data. He also cited Lord Atkins’ immortal dissent in Liversidge v. Anderson and appealed to the court to not allow the government to canvas a Humpty Dumpty interpretation of the statute.
  • Aadhaar is applicable to children as well, and Mr. Divan questioned that how can they be compelled to be yoked to a digital network system like Aadhaar before they even reach the age of free consent. He further pointed out that Aadhaar is a violation of 19(1)(g) as it will restrict freedom of trade, movement and association.
  • Concluding his arguments, Mr. Divan requested the court for a blanket stay on Section 139AA. If a blanket stay is not permitted, then at least prevention of coercive action against those who do not have Aadhaar was prayed for. Also. he asked the court to pass an order to stop the invalidation of PAN in case Aadhaar is not linked by an individual.

In the end, Senior Advocate Salman Khurshid sought permission to file written submissions in the matter. The court is scheduled to hear it on 2nd May along with the State’s reply.