Defying Fundamental Rights with Impunity

Transcription

1 Defying Fundamental Rights with Impunity GOPAL KRISHNA Vol. 52, Issue No. 12, 25 Mar, 2017 Gopal Krishna is a public policy and law researcher, and editor of Linking of biometric Aadhaar number to all public services is designed to cause civil death. Civil death is the loss of all or almost all civil rights by a person caused by the government of a country. It is clear that denial of rights in the absence of Aadhaar is an act of coercion that would lead to civil death. Despite promotion and normalisation of such cruelty most of the opposition political parties are avoiding a clear political position demanding the scrapping of the biometric identification exercise. Ever since the Unique Identification Authority of India (UIDAI) was set up in 2009 by the United Progressive Alliance (UPA) government to implement the Unique Identification (UID)/ Aadhaar Number project for creating a database of biometric and demographic information, it has been dogged by controversy. It has also been the subject of a number of petitions in the Supreme Court. In 2016, the Bharatiya Janata Party (BJP) government introduced the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill in the Lok Sabha as a money bill abandoning the vociferous objection to the project that it had shown while in the opposition benches. It was passed on 11 March 2016 by the Lok Sabha and later certain provisions of the Act came into force from 12 July and September 2016The act aimed at providing efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals". According to media reports the 12-digit Aadhaar numbers have already been issued to 1.08 crore people in the country. Linking of biometric Aadhaar to all public services is designed to cause civil death. Civil death is the loss of all or almost all civil rights by a person caused by the government of a country. It is clear that denial of rights in the absence of Aadhaar is an act of coercion that would lead to civil death. Despite promotion and normalisation of such cruelty most opposition political parties are avoiding a clear political position demanding the scrapping of the biometric identification exercise. While looking at the experiences of other countries where technology and human rights have come into conflict, this article also lists the violations of Court rulings that have marked the government s actions in regard to Aadhaar.

2 Politics Will Deal With You Justice Klara Sooronkulova, a judge at the Constitutional Chamber of the Supreme Court of Kyrgyzstan was dismissed by Parliament of the central Asian state through an engineered majority. She had been in the process of drafting a document declaring the country s law on biometric registration unconstitutional when she was sacked on 18 June 2015 for challenging the government s plan to collect fingerprints and other biometric data from citizens. Just before her dismissal she had been taken off a case related to biometric identification which she had been handling (Eurasianet.org 2015). Sooronkulova said that the judges who voted against her in the Judicial Council were subject to undue influence from the office of President Almazbek Atambaev to ensure that she did not declare the biometric identification law unconstitutional. She said, everyone has to decide for himself whether he wants to trust the state or not. If you do not deal with politics, politics will deal with you. Endorsing her position, Temirbek Asanbekov, a former presidential candidate of Kyrgyzstan said By introducing biometric registration as a condition for participating in the election, the state creates artificial barriers. To elect and be elected is a constitutional right and not an obligation. We should bear in mind the general state of information security in the country. Citizens data could become accessible by various extortionists or even international terrorists. Who will guarantee that evil-minded people will not gain access to this database? (Eurasianet.org 2015) On 23 July 1998 the Supreme Court of Philippines invalidated the order of President Fidel V Ramos of 12 December 1996 adopting the National Computerised Identification Reference System for citizens and foreigners in the Philippines. "Adoption of a National Computerised Identification Reference System (has been) declared null and void for being unconstitutional concluded the final decision by a 12-Judge Bench of the Supreme Court. The Court pronounced this verdict after observing that given the record-keeping power of the computer only the indifferent fail to perceive the danger that law can give to the government the power to compile a devastating dossier against unsuspecting citizens. The Court also recollected the warning of Harry Kalven, Jr, an American jurist, who said, "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget." (The Lawphil Project 1998) On 27 February 2008 the European Court of Human Rights (ECHR) found that the blanket and indiscriminate nature of the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offenses, failed to strike a fair balance between competing public and private interests and ruled that the government had

3 overstepped any acceptable margin of appreciation. The ruling on 4 December 2008 was the unanimous decision of 17 judges and cannot be appealed against. (European Court Of Human Rights 2008) Court Rulings In India, however, a plethora of interim and final rulings notwithstanding the Supreme Court continues to be seized with the case of the 12-digit biometric Unique Identification (UID)/Aadhaar number since 30 November In Justice K S Puttaswamy v Union of India (WP(C) No.494/2012) a bench of then Chief Justice Altamas Kabir and Justice J Chelameswar issued notices after the National Identification Authority of India Bill, 2010 was trashed by the Parliamentary Standing Committee on Finance in December, The Bill had been introduced in the Rajya Sabha on 3 December, After its introduction, the Speaker of the Lok Sabha in consultation with the Chairman of the Rajya Sabha had referred the Bill to the Standing Committee on Finance, which presented the report to the Lok Sabha and laid it in the Rajya Sabha on 13 December On 23 September 2013 in the matter of biometric data based unique identification of Indian residents a bench of Justices B S Chauhan and S A Bobde issued an interim order stating that no person should suffer for not getting the Adhaar card in spite of the fact that some authority had issued a circular making it mandatory. The same bench reiterated on 26 November 2013 that "Interim order to continue, in the meantime." In Unique Identification Authority of India of India v Central Bureau of Investigation, the bench of Justices B S Chauhan and J Chelameswar ordered on 24 March that In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith. This categorical order made it crystal clear that biometric UID/Aadhaar cannot be made mandatory in any situation. This order was repeated on 16 March 2015 by the bench of Justices J Chelameswar, S A Bobde and C Nagappan saying, 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

4 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, After hearing the matter at length, the same bench observed on 11 August 2015: In this batch of matters, a scheme propounded by the Government of India popularly known as Aadhaar Card Scheme is under attack on various counts. For the purpose of this order, it is not necessary for us to go into the details of the nature of the scheme and the various counts on which the scheme is attacked. Suffice it to say that under the said scheme the Government of India is collecting and compiling both the demographic and biometric data of the residents of this country to be used for various purposes, the details of which are not relevant at present. It specifically ordered, The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card; the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen. Bench of Appropriate Strength Disregarding the opposition of senior counsels including by a former solicitor general and pursuant to the submission of the attorney general that the legal position regarding the existence of the fundamental right to privacy is doubtful, this bench inferred that it is better that it be examined and authoritatively decided by a bench of appropriate strength. It directed the Registry to place these matters before the Chief Justice for appropriate orders. A constitution bench of appropriate strength consisting of then Chief Justice H L Dattu, Justices M Y Eqbal, C Nagappan, Arun Mishra and Amitava Roy ordered, We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other.

5 The order of the Chief Justice headed constitution bench of appropriate strength further said, "Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest" on 15 October Even as a Constitution Bench of appropriate strength remains to be constituted even after one year and three months despite the order of the Chief Justice headed constitution bench of five judges comprising appropriate strength since 15 October 2015 the Supreme Court s Registry has ignored it. In the mean time nearly 639 organisations denied fundamental rights to Indians in violation of the Supreme Court s constitution bench order on the subject of 12-digit biometric Unique Identification (UID)/Aadhaar number (explained a little later on in this article).this has been revealed by a government document titled Aadhaar: Dynamics of Digital Identity. On 14 September 2016, the Supreme Court s bench of Justices V Gopala Gowda and Adarsh Kumar Goel reiterated the earlier order of the constitution bench after the passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 underlining the fact that last written order of the Supreme Court is the law of the land. This case of the All India Muslim Minority Students Council was referred to this bench by the bench of Justices T S Thakur, A M Khanwilkar and D Y Chandrachud on 9 September It must also be noted that responding to the direction issued to the Union of India and the union territory of Chandigarh by the Punjab and Haryana High Court in the matter of the civil writ petition 569 of 2013 filed against the Union of India and others, the Executive Order for making the Unique Identification (UID)/Aadhaar mandatory has been withdrawn. The bench of Justices A K Sikri and Rakesh Kumar Jain had noted on 19 February 2013 that the petition raises a pure question of law. Since the Executive Order was withdrawn, the case too was disposed of on 2 March 2013 with a two-page order. The Court had observed, In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards." Several high courts have taken similar positions. Drawing on the Supreme Court s orders, the Jammu & Kashmir High Court bench of Chief Justice N Paul Vasanthakumar and Justice Ali Mohammad Magrey stayed a government order regarding the installation of Aadhaar Enabled Biometric System (AEBAS) in government departments to ensure the attendance of employees in their respective departments. This makes the use of the AEBAS by 639 organisations and other agencies questionable because its implementation amounts to denial of fundamental rights. A Legitimate Fear Disregarding such categorical directions and continuing its assault on fundamental rights, the Union Ministry of Finance under Arun Jaitley has communicated a common strategy to

6 be adopted by banks to achieve the targets under Aadhaar Seeding in mission mode (letter F No 21(23)/2014-FI (MISSION) of 13 July 2016). It fixes the timelines for achieving 100% Aadhaar seeding of all the accounts and common strategies to be adopted by all the banks have also been communicated. The list of notifications and circulars issued by the UIDAI indicate that there were no steps taken to strictly follow all the earlier orders passed by the Court. The application programming interfaces (API) Aadhaar authentication usage and the UIDAI press release of 29 November 2016 indicates that they have directed regional centres to enrol joint entrance examination (JEE) aspirants on priority. This is discriminatory and vindicates the apprehensions expressed by the National Human Rights Commission (NHRC) in its submission before the Parliamentary Standing Committee on Finance that had examined and trashed the Aadhaar Bill Referring to the arrival of the era of the Adhaar number and the incident of surveillance, in an article titled My Call Detail Records and A Citizen s Right to Privacy published in Gujarati, Hindi, Urdu and English, Jaitley as the then leader of opposition in the Rajya Sabha had written, This incident throws up another legitimate fear. Notably, his government through the attorney general successfully managed to plant doubts in the mind of the Justice Chelameswar headed bench regarding the right to privacy being a fundamental right despite pre-existing judicial pronouncements in this respect. Blatant Disobedience of Court Order The Aadhaar authentication description ignores modification of its authentication framework and consequently the forms/circulars/api so as to not compulsorily require the Aadhaar number. The perusal of UIDAI related events on its website indicates that it is running sensitisation workshops on Aadhaar Seeding and Authentication Services every fortnight. A circular also indicates that the UIDAI has not restricted its activities to those permitted by the Court. The UIDAI ignores the requirement to give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an UID/Aadhaar Number. The Aadhaar authentication description has ignored modification of its authentication processes and APIs so that Aadhaar identification cannot be insisted upon by the various authorities. The UIDAI website shows UIDAI has undertaken multiple activities to ensure Aadhaar seeding in facilitated in various scheme databases. The introduction to Aadhaar Authentication from its authentication API shows that it ignores any modification of its authentication API or know your customer (KYC) frameworks so that the production of an UID/Aadhaar number will not be a condition for obtaining any benefits otherwise due to a citizen. The operation model overview for the Aadhaar authentication continues to ignore altering its authentication and KYC services to ensure that the Aadhaar card scheme remains purely voluntary and cannot be made mandatory.

7 The API Aadhaar authentication usage form has not been modified to restrict the access of the authentication and KYC services. A copy of the list of live authenticated user agencies (AUA), authentication service agencies (ASA), e-kyc user agencies (KUA) indicates that hundreds of private parties have been allowed by the UIDAI to access the Aadhaar number and associated data thus not restricting the use of the Aadhaar number. Its website shows that the UID/Aadhaar number is being promoted as a financial address and it also promotes Aadhaar authentication for financial transactions to encourage electronic payments. A press note titled 10 crore Aadhaars linked to Bank Accounts issued by the UIDAI indicates that they have not restricted the use of the UID/Aadhaar number. One spreadsheet on the National Payments Corporation of India (NPCI) s website highlights that the UIDAI has been providing authentication and KYC services to this non government company for various banking services. It is instructive to observe that the Election Commission of India is the only agency that has complied with the Supreme Court s orders in letter and spirit. The Commission revised its order dated 27 February 2015 on 13 August Its revised order reads: All further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently under NERPAP shall be suspended with immediate effect till further directions from the Commission. In other words, henceforth no more collection of Aadhaar Numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP. (National Electoral Rolls Purification & Authentication Programme). This revised order of the Election Commission is a model order. It demonstrates how to comply with the Court s order in letter and spirit. All the 639 organisations and other public and private agencies who are implementing UID/Aadhaar related schemes and systems are under a legal obligation to issue similar orders. It is unbecoming of a government to be proven repeatedly wrong in the highest court of law. It signals illegitimate advances of the state which does not wish to be limited by the Constitution. It must be noted that whenever circulars and letters of central and state government agencies have been challenged and contested they have consistently withdrawn their circulars and letters. After its circular making UID/Aadhaar number mandatory was challenged, University Grants Commission (UGC), Union Ministry of Human Resource Development has clarified that any student who have applied or wishing to apply for scholarship/fellowship shall not be denied benefit thereof due to non availability of Aadhaar No./Card. The revised public notice was issued on 14 September Is It A Big Deal?

8 When the issue of admitted urgency was mentioned before the Supreme Court s threejudge bench of Chief Justice J S Khehar, Justices N V Ramana and D Y Chandrachud on 5 January 2017, instead of acting as per the written request made to the Chief Justice by the Chief Justice headed constitution bench of appropriate strength this bench of inappropriate strength refused to expedite the hearing of UID/Aadhaar cases challenging the denial of fundamental rights by the UIDAI and related schemes. The Chief Justice headed bench orally observed, We are not inclined to give immediate hearing as there are limited resources but biometric data collection by private agencies is not a great idea. This bench of inappropriate strength also posed a seemingly innocent question: Surveillance to what. Is it a big deal? Given the fact that none of the three judges on the bench were ever part of the earlier benches that heard the biometric identification based UID/Aadhaar case, the observation are manifestly and frighteningly inconsistent because simple judicial reasoning makes it vividly clear that surveillance based on biometric data collection by private agencies is admittedly not a great idea. The operation model overview for the Aadhaar authentication indicates that there is no provision to verify the written consent of any person to share biometric information. "Before implementing any biometric application, the Army must undertake a thorough legal analysis of exactly what it wants to do and where it wants to do it" concluded John D Woodward, Jr et al in "Legal Assessment: Legal concerns raised by the U.S. Army s Use of Biometrics" published by RAND Corporation. This implies that besides application in defence, the civilian and defence application of biometric profiling in India also merits legal attention. As a consequence, biometric profiling for UID/aadhaar is indeed a big deal. Meanwhile, on 6 April 2016 Jairam Ramesh, a former member of the Cabinet Committee on UIDAI related matters moved the Supreme Court challenging the decision to treat the Aadhaar bill as a money bill, which was passed during the budget session in March It was passed by overruling amendments moved in the Rajya Sabha against taking the money bill route to pass the Aadhaar bill. It is germane to note that the revised National Identification Authority of India Bill, 2013 was withdrawn from the Rajya Sabha on 3 March On the same day The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was introduced as a Money Bill by Jaitley in Lok Sabha. When the issue of violation of fundamental right to privacy was raised in the Lok Sabha, he said, I am not concerned with the issue of privacy which is pending before the Supreme Court and whether it is a fundamental right or not, I am assuming let it be a fundamental right. He contended, Now under article 21, a person is entitled to his right of life and liberty which can be taken away by a procedure established by law. That is the Constitution. So privacy in an exceptional case by a fair, just and reasonable procedure can be taken away. That is the law as it stands. It is not an absolute right. Several months have passed but the Court has not made it clear as yet as to whether it agrees with the Finance Minister.

9 Amidst the observations by this bench of inappropriate strength, the Supreme Court s website continues to refer to the case as a Five Judges Bench Matter since October 2015 as per a written order of a five judge Constitution Bench of appropriate strength headed by Chief Justice which underlined that there is some urgency in the matter. It is apparent that the advertising and public relations blitzkrieg unleashed by identification and surveillance technology vendors have clouded the minds of legal fraternity. The dangers of trusting such technological advances for determining social policies will consequent in a situation where [A] warrant requirement will not make much difference to a society that, under the sway of a naive and discredited theory of genetic determinism, is willing to lock people away on the basis of their genes among other adverse effects. This entire issue is about denial of fundamental rights. It is not about contempt of court. It never was. When the National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment assaulted judges' autonomy and independence provided by Constitution, it was rejected by the five-judge Bench. The bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as unconstitutional and void. Unmindful of the fact that judges are citizens first, the Court has not shown similar alacrity in safeguarding the fundamental rights although these inalienable rights pre-date Constitution. So far it has saved basic structure from an unlimited government, can it save it and the citizens from an unlimited database of present and future Indians? Hopefully, India has not become Kyrgyzstan as yet. References Eurasianet.org (2015): Kyrgyzstan: Judge Fired for Opposing Government s Fingerprint- Collection Drive, 24 June, European Court Of Human Rights (2008): Press release issued by the Registrar Grand Chamber Judgement S and MARPER v The United Kingdom, 4 December The Lawphil Project Phillippines Law and Jurisprudence Databank (1998):