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Under the Aadhaar system, all Indian citizens are being allotted a unique twelve-digit identity number by the State upon obtaining biometric data including fingerprint and iris scans and upon submission and verification of certain demographic data including the name, date of birth and residential address.

The new identity is different from all previous identity documents issued by the State. While a driving license or a passport were identity ‘documents’ that once issued were in the possession and under the control of the citizen as “original documents”, the Aadhaar number and associated demographic and biometric data is a data entry in a digital database in the possession and under the control of the State and any other entities who might gain access to this database whether with legal authority or otherwise.

Further the nature of the information that the State uses to identify a person under the Aadhaar system is entirely different from that used under earlier systems of identification. Until now the State relied upon photo-identity cards to determine someone’s identity. Under the Aadhaar system, the markers for identity determination include fingerprints and iris scans. For the first time, biological data not visible to the human eye and inaccessible to and non-decipherable by a lay person or a non-expert, is being obtained from citizens and is being stored digitally in a central repository for all 1.3 billion Indians with the ostensible purpose of identifying them.

Yes, the citizen is issued an Aadhar card with a number on it, but that card and the photograph on it and the face of the person presenting that card are no longer sufficient for the State to accept that the person is who he or she says they are. The biometric data must match. If the biometric data match fails, then the State will refuse to accept the identity of that person.

Also, the Aadhaar based identity is ultimately a number in a digital database. That number can be deactivated or even deleted. The database is outside the possession and control of the citizen. If his Aadhaar number in the database ceases to exist, the citizen has no proof of his identity as a citizen. The citizen ceases to exist for the State.

The Aadhaar related debates have focused on the right to privacy and on the apprehension of surveillance by the State and on issues of the security of Aadhaar databases. But there are more deep-seated concerns about the Aadhaar biometric identification system that I discuss here and which are important to understand how great a threat the Aadhaar biometric identification system poses to the privacy, liberty and security of Indian citizens.

There are several scenarios in which this digital biometric identification database can fail, be modified, be stolen, be leaked, be misused or be manipulated by State or non-State interests to the detriment of citizens and their rights. I discuss how the centralized and digital nature of this database as well as its use of biometric markers of identity which by their very nature are not accessible to or verifiable by ordinary individuals, creates many such scenarios where citizens can lose control over their identity and their very person-hood and be left with no recourse in extremely harmful situations. The greatest threat posed by the Aadhaar system is that citizens will lose control over their identity, they will be unable to establish their identity under certain circumstances, and they will also be exposed to an exponentially higher risk of identity theft.

The digital Aadhaar biometric identification system it is argued not only violates the right to privacy, but it creates significant risks that threaten the very right to identity and person-hood of Indian citizens and thus the right to citizenship itself. The Aadhaar system fundamentally alters the social contract underlying the Constitution of India by enabling a potentially malevolent State to deny the very identity of “inconvenient” citizens. A cost-benefit analysis of the Aadhaar system, even accepting its stated advantages, cannot justify such immense risks to citizens.

This post was originally published here by Seema Sapra.

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Recently, I attempted a tweetstorm on why I think the 2016 Aadhaar Act does not override, or render useless, the orders passed in Oct 2015 by the Supreme Court. I argued that all of the recent notifications by various central government authorities making Aadhaar mandatory to avail the respective service of those authorities, are in manifest violation of the Supreme Court’s orders.   This post is to explain those points in a little more detail and provide a rebuttal to counter-views that are being tweeted out such as this.

Here is a brief timeline of the events leading up to the recent Govt. notifications making Aadhaar mandatory for availing for services like food grain under PDS, mid-day meals for school children, girls rescued from human trafficking and many others.

  • The unique identification authority of India (UIDAI) was established by an executive notification in January 2009 and had been running/overseeing the operations of data collection, enrolment, deduplication through biometrics, assigning of Aadhaar numbers. It also provided Aadhaar authentication and related services.
  • The authority operated under executive notification until it was reincarnated into its present statutory form after the coming into force of the 2016 Aadhar Act.
  • Nearly a dozen petitions challenging the Aadhaar/UID project have been pending in the Supreme Court since 2012.  The petitions challenged the project on a number of grounds including :
    • The Authority operating without a legal sanction and in legal vacuum;
    • The unconstitutional irrationality of using Biometrics – not just unproven but provably inappropriate technology for deduplication and authentication; and tying the same for the purposes of identification for essential services such as food, NREGA lead to unconstitutional exclusion of people from accessing those services;
    • The enablement of surveillance, convergence of data without constitutionally sufficient statutory protection being an unconstitutional infringement of the right to privacy;
    • National security implications of employing foreign companies with link to foreign national governments and intelligence agencies for biometric operations, endangering the right to life of the entire population of the country;
    • Unconstitutional Irrationality of employing private contractors as enrolment agencies and having them handle sensitive personal data without constitutionally adequate techno legal safeguards;
    • Unconstitutional irrationality of using Aadhaar authentication or KYC for financial products or inclusion schemes as it facilitates money laundering; promotes exclusion even as it paints a picture of inclusion; and importantly threatens economic sovereignty of the nation;
    • The unconstitutional denial of dignity to Indian residents for using unlawful coercion to have then queue up to part with their biometrics and other personal data;  and
    • The lack of competence, under the constitution of the union executive in operating the project.
  • Supreme Court passed the first interim order in the matter in September 2013 prohibiting any government body from insisting Aadhaar as mandatory for any of its services irrespective of any circular or notification that may have been issued in that regard.
  • It reiterated that position a number of times thereafter – November 2013,  March 2014, March 2015, August 2015 (after Attorney General for India famously claimed before the Supreme Court, the highest constitutional court of the land, that Indian citizens do not have the right to privacy under the constitution and the matter was sent before a constitutional bench of a minimum of five judges, even as the matter raised grave questions of constitutional interpretation and is “of some urgency”) , and again  in October 2015.
  • The August 2015 order limited even voluntary use of Aadhaar to two schemes viz PDS and LPG.  The October 2015 order permitted four more schemes for voluntary usage of Aadhaar.
  • The October 2015 order categorically made it clear that Aadhaar scheme shall be “purely voluntary” until the matters are finally heard and decided one way or the other.
  • In March 2016, Aadhaar Act was passed as a Money Bill, bypassing the Rajyasabha.  The unconstitutionality of such introduction and passage has also been challenged in the Supreme Court and that challenge has also been admitted and tagged along with earlier petitions before the SC.
  • Starting January 2017, more than sixty different government authorities issued notifications under Section 7 of the Act, apparently making Aadhaar mandatory for various purposes.

In my humble but considered view, such notifications are unlawful and are in violation of the Oct 2015 order which still holds the field.

I argue that :

  1. The primary basis of a court passing an interim order is the pending dispute before the court. As long as such a dispute  is still pending, the orders would ordinarily hold force.  In this case, the petitions are still technically pending before the Constitution Bench of the court, even if the Govt thinks they have become infructuous/ useless. The government has not moved the court for such a declaration or dismissal of the petitions or vacation of the orders citing the new law.
  2. Note that this case is different from instances like the Shah Bano story in which a final judgment of the court was sought to be undone by an Act of parliament.  In this Aadhaar case, the central government is still before the court and is subject to the jurisdiction and specific restraint imposed by the court.  If any authority wants to exercise power, (even newly found power) contrary to such restraint, it cannot do so without the permission of the court.
  3. I am not suggesting that a parliamentary legislation cannot in any case override interim directions of the supreme court.  However, I argue that the following are the necessary (but not sufficient) ingredients for that:
    1. There should be an express statement in the objects of the Act as introduced in parliament or elsewhere during the legislation process that this seeks to undo interim directions of the court; or
    2. It is impossible for a person to comply with the later legislation as well as the orders of the court.

In this case, the Act has neither of these ingredients. While Section 7 confers power on various authorities to insist on Aadhaar as a mandatory pre-requisite, it does not impose a duty to do so. The authorities therefore can comply with the Act without being in contravention of the orders of the court, by simply not exercising the powers under Section 7.   If any authority is desirous of exercising the newly found power, they can do so - but only with the leave of the court.

Moreover, when the interim orders were passed, the absence of law was not the only issue in consideration.  In fact, the central government had argued that the Appropriation Act at the time read with Allocation of Business Rules under Article 77 provided the legislative basis for the project and that IT Act and the Rules under IT Act have enough statutory safeguards for data protection; and therefore there was no legislative vacuum under which the project was operating.

Government of India, and others seem to take a view that the 2016 Act did not exist before October 2015 and that there is no principle of automatic stay of an Act of parliament that did not exist at the time of passing the order and therefore, October 2015 order would not prohibit authorities from exercising power under Section 7 of the newly enacted Act.

That argument does seem to be appealing on the face of it. However, a plain unqualified application of that argument leads to absurd results.

Assume for one moment, that the 2015 Act did stay the operation of a law – lets call it Aadhaar Act-1.  Say parliament passes another identical Act and lets call it Aadhaar-Act-2.  Can the government continue to implement and enforce Act-2 believing that there is no automatic stay? Such a result would be absurdity. Why have constitutional courts at all if legislatures can simply reiterate their earlier position and escape orders of such a court? My point is that the question as to whether or not an earlier interim restraint prohibits persons from exercising powers under a future Act depends on the facts and circumstances under which the earlier orders were passed and the contents of such future Act.   For instance, SEBI applied to the Court to modify the 11th august order complaining that the 11th August imposed a restraint on its statutory powers even though they were not in challenge before the Court. On the face of it one may argue that there is also no principle in constitutional law to put restraints on statutory powers when such a statutory provision is not under challenge. But the court did not accept such a contention in its 15th Oct 2015 order and disallowed SEBI's application.

I also argue that the Act was incorrectly introduced and passed as a money bill in the parliament in brazen disregard for the qualifications of being a money bill under Article 110 (3) of the Constitution and in glaring violation of the principle of Federalism, which is a part of what is called “Basic Structure” of India’s constitution. I am of the view that the Act is still-born and people are not bound by it.    Note that this is different from an Act which is contrary to provisions of Constitution such as any fundamental right etc.   In such a case, people are required to act as though they are bound by it until such a law is declared unconstitutional by the court.  However, because this Act is no valid legislation at all i.e. it is void ab initio, people are free to act contrary to it.  It is no different from a random resolution passed by your neighbour’s family – to give a crude example 😉

Prasanna S is one of the advocates acting for some of the petitioners in the Aadhaar petitions before SC.

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This post has been based on a series of tweets by Derrick Thomas on Twitter. The first few tweets are embedded in the post. If you are on Twitter, please do go through the whole thread.

The funny thing about Aadhaar based mobile verification is that it enables terrorists to get a legal mobile connection without any fuss. All you need is an Aadhaar card and you can get as many mobile phone connections as you want.

If a terrorist enters India and manages to live for six months without being caught, he is "entitled" to get an Aadhaar number. Aadhaar is not proof of nationality. It can also be made if you have no proof of identity or address.  Once he has an Aadhaar, things are easy. He can get as many mobile connections as he wants, get a bank account and even a loan. He can even get a PAN number, rent a home on the basis of that, get an Indian passport.

Once he gets a bank loan, he can use it to plan any kind of strikes on India. Aaddhar just makes things easy. All these without the help of an Indian. Think about that.

How can we allow anyone to use our own money and infrastructure to destroy the sovereignty of Indian Union?

These are the real matters of "National Security". Please government, please reconsider such decisions without checks and balances #Aadhaar

Dear Government, please discuss such issues in detail. In Parliament. Appoint a committee to look into such issues. Fix accountability.

And the issue is not just limited to terrorists. It helps illegal immigrants, about whom you have no information.

Aadhaar enables one illegal immigrant to bring an entire set of his family and relatives to India and get government benefits. That one illegal immigrant can introduce his family members and relatives. They will get every single thing from Government, for FREE.

How will Aadhaar plug leakages then? All of them have unique fingerprints, unique iris scans.

That is the reason why I said, Aadhaar will only accelerate leakages. With that single Aadhaar ID, an illegal immigrant can open a Jan Dhan Bank Account and get ₹5000 overdraft with zero balance. (based on subsidy data) The very idea of India, we have known and feel in our blood is at risk. And illegal immigrants / terrorists need not come to India with money and ammunition. Our Aadhaar system will help them source those locally