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Aadhaar card: An Invasion to privacy

Aadhaar is a 12-digit unique-identity number issued to all Indian residents based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI), is a statutory authority established in January 2009 by the Government of India, under the Ministry of Electronics and Information Technology, under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.

Aadhaar is the world’s largest biometric ID system, with over 1.171 billion enrolled members as of 15 Aug 2017. As of this date, over 99% of Indians aged 18 and above had been enrolled in Aadhaar. World Bank Chief Economist Paul Romer described Aadhaar as “the most sophisticated ID programmed in [the] world”.

Prior to the enactment of the Act, UIDAI functioned as an attached office of Planning Commission (now NITI Aayog) since 28 January 2009. On 3 March 2016, a money bill was introduced in the parliament to give legislative backing to Aadhaar. On 11 March 2016, the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 was passed in the Lok Sabha. On 26 March 2016, this Act was notified in the Gazette of India. In June 2017, the Home Ministry clarified that Aadhaar is not a valid identification document for Indians traveling to Nepal and Bhutan.

As of April 2017, a Constitution Bench of the Supreme Court of India is considering the legal validity of Aadhaar on right to privacy grounds. On 23 September 2013, the Supreme Court issued an interim order saying that “no person should suffer for not getting Aadhaar” as the government cannot deny a service to a resident if she does not possess Aadhaar, as it is voluntary and not mandatory. In another interim order on 11 August 2015, the Supreme Court of India ruled that “UIDAI/Aadhaar will not be used for any other purposes except PDS, kerosene and LPG distribution system” (which order was later amended to include Mahatma Gandhi National Rural Employment Guarantee Scheme, all types of pensions schemes, employee provident fund and the Prime Minister Jan Dhan Yojana), and made it clear that even for availing these facilities Aadhaar card will not be mandatory. On March 2017, the Supreme Court affirmed that Aadhaar cannot be mandatory for availing benefits under welfare schemes, though it can be mandatory for other purposes (such as income tax filings, bank accounts etc.). On June 9, 2017 the Supreme Court of India partially read down a legal provision (Section 139AA of the Income Tax Act) which mandated as individual to link their Aadhaar for filling their Income Tax Returns.

Some civil liberty groups, like Citizens Forum for Civil Liberties and Indian Social Action Forum (INSAF), have opposed the project over privacy concerns.

Format of Aadhar Card:

The full Aadhaar card is a colour document (referred to as the Aadhaar letter), often printed on glossy paper that is also obtainable electronically online via PDF. According to the government, a black and white version of the document is valid. It is printed on A4 paper and folded in half in portrait (to produce a front and black) that is approximately 93mm by 215mm once margins are removed. Some agencies may laminate the document for no more than 30. It has a cut off card sized portion at the bottom with the key information. Some individual agencies produce and charge for a PVC card version (cut-off of the bottom section) falsely marketed as a smartcard despite caution from the government.

Title and Content Layout:
Biometric information includes photograph, fingerprints, iris scan, and “other biological aspects. In the Aadhaar Act, a person’s “identity information” has two components: demographic information and biometric information. Demographic information includes details “related to the name, date of birth, address and other relevant information of an individual,” collected when an Aadhaar number is issued. Demographic information explicitly precludes a few specific details, such as caste and religion, but otherwise, it is basically whatever the government decides.

# “Attributes of an individual” that the government may decide. The Act also uses the concept of “core biometric information,” which is defined in the same way expect that the word “photograph” is omitted.

# Section 8, it is concerned with “authentication”. On this, there was a massive foundational change between an earlier draft of the Act (the National Identification Authority of India Bill, 2010) and the unalterable version, the Aadhar Act 2016.

# In the Aadhaar Act, however, authentication is a completely different thing. When it submits an Aadhaar number, the “requesting entity” (any “agency or person” who is willing to pay the fees) can now ask for any aspect of that person’s identity information, expect for the core biometric information. Everything else, including photograph, can be shares by UIDAI with the requesting entity.

# To be the fair, two safeguards are in place in the Aadhaar Act. One is that the requesting entity must inform you about the use it proposes to make of your identity information. The second safeguard is that the requesting entity cannot publish or display your Aadhaar number.

# The Aadhaar Act has been brought about to give the legislative backing to the individual identity program which aims to provide a unique identity number to the entire population of India. The rationale behind this scheme is to correctly identify the beneficiaries of government schemes and subsidies gets credited directly into the bank account of the recipients thorough its JAM initiative (Jan dhan bank account-Aadhaar number-mobile number).

Aadhaar-enabled biometric attendance systems:

# In July 2014, Aadhaar-enabled biometric attendance systems were introduced in government offices. The system was introduced to check late arrival and absenteeism of government employees. However, in October 2014, the website was closed to the public but it is now (as on 24March 2016) active and open to public access.

Other Uses by central government agencies
# In November 2014, it was reported the Ministry for External Affairs was considering making Aadhaar a mandatory requirement for passport holders. In February 2015, is was reported that people with Aadhaar number will get their passports issued within 10 days, as it allowed the verification process to be easier by checking if applicant had any criminal records in the National Crime Records Bureau database.

# In October 2014, the Department of Electronics and Information Technology said that they were considering kinking Aadhaar to SIM cards. The Digital India project aims to provide all government services to citizens electronically and is expected to be completed by 2018.

# On 3 March. the National Electoral Roll Purification and Authentication program (NERPAP) of the Election Commission was started. It aims to link the Elector’s Photo Identity Card (EPIC) with the Aadhar number of the registered voter. It is aims to create an error-free voter identification system in India, especially by removing duplications.

# The biggest danger of Aadhaar: its power as a tool of mass surveillance. This is, possibly, far more serious than the issue of confidentiality of the database. Once Aadhaar becomes an all-purpose identification tool, your life will be as transparent to the state as a contact lens. Details of your railway bookings, phone call records, and financial transactions and so on will be accessible to the government.
# The Right to privacy is not specifically referenced to the Constitution but it is considered as ‘penumbral right’ under the Constitution i.e. a right that has been declared by the Supreme Court as implicit to the Fundamental Right to Life and Liberty. In addition, various statues contain provision, which either implicitly or explicitly preserves this right. The following sections provide an overview of both constitutional and statutory safeguards to privacy in India.
# The development of the right to privacy in India could be traced from the case of M.P. Sharma & Others v. Satish Chandra & Others.
# But in the case Govind vs. State of M.P. The Supreme Court took a view point which represents a paradigm shift in perspective from their rulings
# Right to privacy was upheld again by the Supreme Court in Ram Jethmalani v. U.O.I.
# In the case of Justice K.S. Puttaswamy v. U.O.I a scheme propounded by the Government of India popularly known as “Aadhaar Card Scheme” was under attack on various counts.

Infringment of Individual’s Right To Privacy And Dignity:

It is important to note that the main privacy concerns brought by the UID project are: territorial and data privacy. The risk tht the UID poses to an individual’s privacy is enormous, as information that is now scattered in the public domain will be brought into one point of convergence through the UID. Authorities could misuse this information. Further, there are issues of privacy infringement due to the use of biometric information in the project. The Collection of, and identification based on biometric information could be understood as a breach of one’s territorial privacy and one’s data privacy.

Lack of legislation:
# The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Aadhaar Act”) was introduced in the Lok Sabha by Minister of Finance, Mr. Arun Jaitley, in on March 3, 2016, and was passed by the Lok Sabha on March 11, 2016. It was sent back by the Rajya Sabha with suggestions but the Lok Sabha rejected those suggestions, which means that the Act is now deemed to have been passed by both houses as it was originally as a Money Bill.

# In late November 2012, a former Karnataka High Court judge, Justice K. S. Puttaswamy, and a lawyer, Parvesh Khanna, filed a Public Interest Litigation (PIL) against the government in the Supreme Court of India. They had contended that government was implementing the project without any legislative backing. They pointed out that the National Identification Authority of India Bill, 2010 which introduced in the Rajya Sabha was still pending. They said that since UIDAI was running on only an executive order issued on 28 January 2009, it cannot collect biometric data of citizens as it would be a violation of privacy under Article 21 of the Constitution.

# On 23 September 2013, the Supreme Court issued an interim order saying that “no person should suffer for not getting the Aadhaar card despite the authority making it mandatory”. The court noted that the government had said that Aadhaar is voluntary.

# On 2 February 2015, the Supreme Court asked the new government to clarify its stance on the project. This was in the response to a new PIL filed by Mathew Thomas, a former army officer. Thomas had claimed that the government was ignoring previous orders while pushing ahead with the project and that the project was unconstitutional as it allowed profiling of citizens. The government in a reply on the 12 February said that it will continue the project. On 16 July 2015, the government requested the Supreme Court to revoke its order, saying that it intends to use Aadhaar for numerous services.

# On 11 August 2015, the Supreme Court directed the government to widely publicize in print and electronic media that Aadhar is not mandator for any welfare scheme. The Court also referred the petitions claiming Aadhaar is unconstitutional to a Constitutional Bench.

Supreme Courts Verdict:
New Delhi: The Supreme Court on August 24th ruled that all Indians enjoy a fundamental right to privacy, a right that is protected under Article 21 of the constitution.

Constitutional Validity of Aadhaar Programme:

The Aadhaar card programmed does not become unconstitutional due to privacy being held as a fundamental right. While the right to privacy case stemmed from a batch of petitions challenging the constitutional validity of the identification scheme, Aadhaar by itself is out of the scope of the judgement.

A quick recounting of history is important in understanding this.

In October 2015, a Supreme Court constitution bench led by the then Chief Justice H.L. Dattu declared that the “Aadhaar card was purely voluntary” and could not be made mandatory. The bench further stated that the voluntary nature of Aadhaar would continue to be in place until a larger Supreme Court bench of judges decided whether the biometric authentication scheme violated the privacy of Indians.

It took the Supreme Court almost two years to set up that larger bench of five justices to examine whether Aadhaar c=violated the right to privacy. What happened during the initial July 2017 hearings is that both former attorney general Mukul Rohatgi and current attorney general K.K. Venugopal argued that the right to privacy was not fundamental right. Venugopal cited the 1963 Kharak Singh case to emphasise that there was no right to privacy under Article 21 and Article 19 (1) (d) of the constitution.

The attorney general’s argument is what kicked off the nine-judges bench which examined whether privacy could be a fundamental right. The five-judge bench hearing on Aadhaar was stopped and a new one started.

On Thursday, the nine-judge bench delivered its judgement which dismantled the attorney general’s arguments and overruled previous judgements in the Kharak Singh and MP Sharma cases.

The biggest immediate impact of the privacy judgement on Aadhaar is that it will end the legal gridlock over the fundamental nature of a ‘right to privacy’ and hopefully move along the court hearings on the validity of the government’s identification scheme.

The field is clear for the Aadhaar hearings, which were cut short, to resume under a smaller three-judge or five judge bench.

According to legal experts, this judgement might indicate some momentum for the Aadhaar camp, but the true test of a fundamental right to privacy will be when it is applied in specific legal cases. There are many upcoming cases out of which the Aadhaar hearings are one.

• The rampant corruption evident at every sector of the government organization and the objective the UID scheme sought to achieve it is necessary that we find a middle path so that this scheme can be implemented. This section provides important measures that need to be taken in tackling the issues raised by UID could be summed up as follows:
• As per the judicial decision the right of privacy has been held to be implicit in the Article 21. “21-B.
1.Every person has a right to respect for his private and family is home and his correspondence.
2. Nothing in clause (1) shall prevent the state from making any law imposing reasonable restrictions on the exercise of the right conferred by clause (1), in the interests of security of the state, public safety or for the prevention of disorder or crime, or for the protection of health or morals, or for the protection of the rights and freedoms of others”.

• There is need for a comprehensive privacy legislation that would ensure the protection of personal and sensitive data of people. There is also the need for an established regulatory body.
• About to The Aadhar Act,2016-there is a need for a specific provision that states clearly that no services or facilities shall be denied to citizen on basis of lack of a UID number.

The above discussion on the right of privacy and dignity with respect to UID clearly shows that the UID, if brought into practice, would discount the right to privacy and dignity guaranteed under the Constitution, and would cause serious implications upon the freedom and choices of the Indian citizen. The UID could also lead to a situation of increased state surveillance, causing an invasion of the right to privacy, and in turn affecting the dignity of individuals. Furthermore, the developmental claims by the UID of security and administrative efficiency cannot be a valid justification for infringement on the right of life under the Article 21 and the right to freedom of expression and movement as provided in the Article 19 of the Constitution.

Information, they say, is power. Allowing governments to exercise this power over us without thought for the rule of law constitutes the ultimate submission possible in a democratic nation-state. And, without the prospect of good laws we will all be subordinate to a new national imagination of control and monitoring, surveillance and profiling. If allowed to come to pass, this will be a betrayal of the foundational idea of India as a free and demographic republic tolerant of dissent. Also, the need for privacy law cannot be overstated. With all our lives being splattered over the media be it through social networking sites or the spy cameras, we need protection so that we can function in the way we want and not think of others before our actions. After all, the only ones we owe an explanation to is ourselves and not to the entire world.

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