Besides purpose-oriented cards like voter’s identity or PAN, many countries made other identification cards mandatory for their citizens for security and other s uch purposes. On the similar lines, the Indian government, on January 28, 2009, decided to constitute the Unique Identification Authority of India with a view to issue what are now known as Aadhaar numbers according to clause 3 of the National Identification Authority of India Bill, 2010 for better implementation of public welfare schemes and, regulatory and security purposes. This identification card is unique in the sense that its issuance is subject to provision of biometric (iris scan and fingerprint) and demographic information. However, the sanctity of the whole plan has been radically shaken by the Supreme Court’s interim order this September , 2013. Below is the account of the apex court’s observation and where the campaign went wrong.
While hearing a PIL challenging the issuance of Aadhaar number/card to illegal migrants, the Supreme Court ordered that the card shall not be issued to illegal migrants and shall be issued only after verifying Indian nationality or citizenship. In this way, the court has declared and affirmed that the core idea underlying the issuance of the cards is national security which was originally underlined and suggested in Kargil Review Committee Report (2000) and Group of Ministers’ Report on Reforming the National Security System (2001). In fact, it was affirmed that the security of the country may be threatened if the number is issued to illegal migrants as well. The Parliamentary Standing Committee on Finance had also made such an apprehension after having evaluated the Bill on the UID. Surprisingly, the object which the preamble to the Bill highlights is that the said Bill facilitates access to benefits and services to individuals while the essential object of national security finds a less important place in clause 33 (b) which provides for disclosure of the identity information in the interests of national security. According to section 3 of the proposed Bill, residence of a person is the criterion for getting the Aadhaar number and not citizenship or nationality and as a natural consequence, section 6 provides that the Aadhaar number or the authentication thereof shall not, by itself, confer any right of or be proof of citizenship or domicile in respect of an Aadhaar number holder. However, by these very provisions, the golden vision of the unique number went astray. And, if Direct Benefit Transfer was the sole (hidden) agenda of the government, there was no need to put such a heavy fiscal burden (more than Rs 2000 crore so far) on the country by aiming such a colossal scheme. Instead, the same could have been executed by requiring people to open bank accounts.
The court further held that the card cannot be made a sine qua non to get benefits from public welfare schemes and other subsidies. In fact, it is not reasonable to render it mandatory for many reasons like, for instance, many nomads and people of tribal origins, Aadhaar card is a distant dream. The requirement of Aadhaar cannot be a ground for rejecting benefits to the underprivileged. On the court’s stand, the respondents submitted that the cards are issued on voluntary basis whereas in reality, for benefits under the National Food Security Act, 2013, LPG subsidy, registration of marriage in Jharkhand and Delhi and, payment of salary in Maharashtra, Aadhaar is mandatory. It must be borne in mind that the criterion for availing benefits of public welfare schemes is poverty (or ‘capability deprivation’ in Amartya Sen’s terms) and not Aadhaar card in any case.
Under Chapter 4 of Aadhaar Authentication Framework, read with Clause 1.2 of the Aadhaar Authentication Implementation Model — the Operating Model and Clause 2.1 of the Working Paper (Ensuring Uniqueness: Collecting Iris Biometrics for the Unique ID Mission), biometric attributes like fingerprint and/or iris shall be used for Aadhaar authentication. In this connection, the petitioners contended before the court that collection of biometric information in order to issue Aadhaar card is an invasion of right to privacy of citizens which can only be done through a law. Hence, beyond the executive power. It is noteworthy here to note that under Article 13(3)(a), an order is also included within the ambit of ‘law’, although the constitutionality of an order can also be challenged before the court. The state of this case is, however, a little different in the sense that the government continued to implement the project in accordance with the executive order despite the fact that the Parliamentary Standing Committee has already not only rejected the Bill in toto but also questioned the merit behind the Aadhaar project in December 2011. The apex court had also issued notice to the central government on November 30, 2012, asking whether the order to implement the scheme would circumvent the parliament.
However, given the argument that the ultimate aim of the Aadhaar plan is national security, one should not contend that collection of biometric information amounts to an invasion on their privacy because we have to forgo such trifles in the interest of national security. Leakage of the information, liability and beyond: While enrolling for Aadhaar, the security of the biometric information is not at stake where it is ultimately stored because, the de-duplication mechanism is resilient. However, the enrolment task handled by IT department of the states and puny contractors is the fragile link of the chain. The Bill lacks stringent provisions for unauthorized disclosure of the identity information as under Clause 37, it provides for imprisonment for a term which may extend to three years for such an offence. The Bill is also silent on a grave issue of remoteness of liability of employee who discloses the information to an unauthorized person. If by such a disclosure, another person duplicates the fingerprint or iris and successfully opens and empties one’s locker or safe, what shall be the extent of the liability of the employee? Unfortunately, in India neither there is any national data protection law nor the Information Technology Act, 2000 deals with the issue rigorously.
The order of the Supreme Court is a sigh of relief to people struggling to enroll for Aadhaar card, though to expect the same from the government will be imprudent. Had the government not distracted from the unique objective behind the unique number, the Aadhaar would not have become niraadhaar (baseless). The watchwords spelt out on the card; “Aam aadmi ka adhikar” i.e. “The right of a common man”, leaves a lot to be interpreted and perhaps need a change too.
www.grandmasters.in | 8 Years & Counting
www.rcls.in | 8 Years & Counting
www.itlegalsummit.com | 8 Years & Counting
www.bfls.in | 8 Years & Counting
www.maels.in | 8 Years & Counting
www.plcs.co.in | 8 Years & Counting
Copyright © 2020 Lex Witness - India's 1st Magazine on Legal & Corporate Affairs Rights of Admission Reserved
