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:
- Whether there is any “right to privacy” guaranteed under the Indian Constitution?
- 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.
Certain reports have stated that the constitutional bench will only hear arguments on the validity of Aadhar and take up Governments request for interim relief. For deciding whether there is a fundamental right to privacy a larger bench will be formed later. This seems problematic on a number of levels:
- If the court allows the Centre to make Aadhar mandatory for other welfare schemes, it will be doing so without having any clarity on the status of right to privacy in India.
- In case the Court provides the relief to the Government and allows Aadhar to be used for other schemes, without looking at the scheme privacy concerns, how will it later reconcile it when the larger bench decides the rights contours.
- If the Court only takes up the issues relating to privacy violation by Aadhar, it will be doing so without deciding whether there is a right to privacy and it contours?