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By Joshita Pai & Sarvjeet Singh

The Unique Identification Authority of India (UIDAI) was set up under the chairmanship of Mr. Nandan Nilekani in 2009 by an executive notification to generate and assign unique identification numbers to residents.

After persistent protests asserting that a project, which requires collection of information such as biometric data, cannot be carried out in the absence of a legal framework, the National Identification Authority of India Bill, 2010 was introduced in the Rajya Sabha. The Parliamentary Standing Committee on Finance subsequently found the bill unsuitable citing concerns such as national security and potential privacy violations, duplication of the National Population Register’s (NPR) activities and asked the Government to reconsider the UID scheme. A fundamental issue raised by the Committee was the scope of Aadhar, which covers residents and not citizens.

Towards Aadhaar-enabled delivery of services and applications, UIDAI provides online authentication using the resident’s demographic and biometric information. Services such as e-ration card, linkage of banking services, The Ministry of Petroleum and Natural Gas brought in an amendment in 2011 to its Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 making the Unique Identification Number (UID) under the Aadhaar project compulsory for availing LPG refills.

The mandatory nature attached to the Aadhaar project however, invited a string of petitions linked to main petition filed by Justice Puttaswamy addressing the lack of procedural safeguards, coercion for enrollment and blocking access to multiple schemes by permitting access only through Aadhar. In November 2013 during one of the hearings of the matter, the Supreme Court concluded that the matter holds importance to all the states and union territories to be impleaded as parties to the case and passed an order to this effect.

The Attorney General defended the project stating that UIDAI requires only basic identity data such as name, age, gender, address and relationship details in case of minors, for issue of unique identity number, commonly known as Know Your Resident. The maintained response from the ministry has been that the UID scheme is envisaged as a means to enhance the delivery of welfare benefits and services and is not carved out for fulfilling surveillance purposes. The UID has clarified that only the person to whom the data is related will be entitled to seek and access the information contained in the Aadhaar database, in pursuant of section 8(j) of the RTI.

In March 2014, the Supreme Court restrained the UIDAI from transferring biometric information to any other agency without the written consent of the aadhaar card holder. The CBI, while investigating the rape of a girl in a school toilet in Goa requested the UIDAI to handover its biometric database. The Judicial Magistrate First Class of Goa issued an order directing the UIDAI to comply with the CBI’s requests. It was protested by the UIDAI in the Bombay High Court which dismissed the petition and the matter was appealed before the Supreme Court. CBI’s request for handing over the data was declined and the UIDAI in its petition refused to share the data citing privacy concerns. The UID petition has also been tagged with the other petitions.

The Supreme Court has prior to the 11th August, 2015 interim order, on three occasions – on September 23rd 2013, March 24th 2014 and March 16th 2015 declared that services cannot be made incumbent on the Aadhar number.

Reiterating the mandate of making Aadhaar and optional process, the Supreme Court, on 11th August, 2015 declared that Aadhaar card will be mandatory only for availing LPG and PDS services. The UID website now carries at the bottom of its homepage a statement to the end that enrollment for Aadhaar is voluntary. The order has not been implemented in practice since schemes such as digital locker and the online health portal schemes are still linked to aadhaar. The principal opposition to Aadhaar in the Supreme Court has been the question of privacy and the same was argued before the Court.

Defending Aadhaar, the Attorney General placing reliance on M.P. Sharma v. Satish Chandra (decided by a 8 judge bench in 1954) and Kharak Singh v. State of U.P. (decided by a 6 judge bench in 1962), stated that the right to privacy is not guaranteed under the Constitution and its position is doubtful. He further argued that the subsequent decisions in Gobind v. State, Rajagopal v. T.N. and PUCL v. UOI were rendered by smaller benches. The August 11th order therein referred the question of determining the existence of privacy to a larger constitutional bench.

The interim orders were repeatedly sought to be quashed by the Centre in order to facilitate the promised social welfare schemes. Last week, the Supreme Court rejected the plea to stay the order and decided to refer any clarifications or modifications to the Constitutional Bench. The request was processed immediately and a five judge bench was accordingly set up and will be hearing the petition on the 14th of October, 2015. According to these reports, six different state governments, Indian Banks’ Association, UIDAI, SEBI, RBI, and TRAI have joined the case defending the Centre’s stance and asking the court to allow usage of Aadhar identity proof for all welfare schemes.

Going forward the various issues that need to be decided by the Court are in respect to the issue of privacy are:

  1. Whether there is any “right to privacy” guaranteed under the Indian Constitution?
  2. If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy.

India follows the principle of “stare decisis”. The principle of stare decisis is of utmost importance by virtue of the fact that the law declared by the Supreme Court shall be binding on all courts within India (article 141). Moreover, it is an accepted principle that except in certain situations, in cases of conflict between various judgments the opinion expressed by the larger bench prevails. Therefore, ideally to overrule the judgment by an eight-judge bench in MP Sharma, a nine-judge bench should be constituted.

The constitutional bench that has been formed is a five-judge bench comprising of Chief Justice of India H.L Dattu, and justices M.Y Eqbal, C. Nagappan, Arun Mishra and Amitava Roy. Starting this afternoon, it will be tasked with determining the fate of Aadhaar and deciding on Centre’s plea of seeking a modification of the Court’s order restricting the usage of Aadhar and to decide upon the existence of privacy as a constitutional right.

A timeline of the case till August 2015 is available here and a list of the various petitions tagged together is available here.

Original author: Joshita Pai
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Like +0 Object -0 Jairam 14 Oct 15, 12:50
Constitution of Constitution bench is interesting. No senior Judges except CJI. IT seems that Ld. AG has to convince CJI only. He will decide and rest will follow the line.
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Like +0 Object -0 Keshav modi 14 Oct 15, 22:02
People were shown sword hanging with words that IF YOU DONT DO THEN YOU WONT GET KEROSENE ETC.
EVEN SCHOOLS HAD ASKED ALL CHILDREN TO SUBMIT AADHAT CARDS ELSR NO HALL TICKET WOULD BE GIVEN FOR Xth standard exam. People will look at the sons studies with fear they were forced to go for the aadhar ad their children's would not get hall ticket and the whole year would get wasted. So you see dafagiri by UIDAI throgh young people at 18age knockibg with a huge form and collected data and then said you will have to come to give finger prints at the centre. Till then all people would see who filled the form see their date of birth, cell number, account number of bank... Etc and lot more
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Like +0 Object -0 Santosh kasekar 14 Oct 15, 22:07
I had been to the bank of india to close my account. And the bank manager said aadhar get else your money will be forfitted. I said i have my voter id and passport with address. The officer daid pan card, passport and voter id is useless. Narendra modi said push the scheme verbally so we are sorry.
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Like +0 Object -0 Jagdish raut 14 Oct 15, 22:10
Even i had been at bank of india office mumbai. The chief manager of the bank says aadhar lao, warna accoint seal kar denge. Pukka goondagiri by narendra mod i sarkar
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Like +0 Object -0 Ujwala haldankar 14 Oct 15, 22:15
When we have voter id for identity proof and address proof, when we have passpirt for identity and address proof, driving licence as identity and addrrss proof, life insurance policy for address purpose, list is on then why get one more document which is sensitive for pubkic or social use. Aadhar should be for investigating of severe crime purpose only that tooo with due permission of the Supreme Court only
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Like +0 Object -0 Utkarsh 15 Oct 15, 13:58
Nice article. Summed up a lot of issues succintly. Keep us informed.
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Like +0 Object -0 Guest 21 Apr 17, 18:52
Supreme court has asked centre to set up aadhaar card to get Pan cards. We are ready to aadhaar card details, but lets make the aadhaar things easy to get it was very difficult for my cousin to get, the websites are not loading properly, there are few centres so its get crowded easily.
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