A Supreme Court, which is conscious of the erosion of its authority, will surely ask the Attorney General on Monday (October 30) when he comes back to it with instructions from the government to inform the court as to why it has not complied with the court’s direction that “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”. This order is the law of the land and under Article 144 of the Constitution of India, the Attorney General and “all authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court”. It seems the Chief Minister of West Bengal has acted in an exemplary manner by complying with this order of the Court after the unanimous resolution of West Bengal Assembly. After 11-year-old Santoshi Kumari’s death in Simdega district on September 28 due to denial of food ration to her family as they did not have an Aadhaar-linked ration card, every chief minister who has moral conscience left will feel compelled to disassociate its state from UID/Aadhaar related programmes by unsigning the MoU they have signed with Unique Identification Authority of India (UIDAI). Notably, high courts of Punjab & Haryana, Jammu & Kashmir and Andhra Pradesh have passed orders in pursuance of the Supreme Court’s orders, there is a compelling logic in taking suo moto notice of non-compliance with the order by all the concerned high courts to prevent such deaths.
In a related development, Jharkhand’s Minister of Food and Public Distribution Saryu Roy cancelled an instruction issued by Jharkhand Chief Secretary Rajbala Verma on the linking of the Aadhaar to ration cards on October 11 in compliance of the court’s order following deaths in the state. The state’s Chief Minister Raghubar Das, current Chief Secretary, and previous Chief Secretary Ram Sewak Sharma had made Aadhaar compulsory in Jharkhand in total disregard of the court’s order.
The Supreme Court’s directions, orders of the high courts and the position of West Bengal and the recent decision of Jharkhand Minister assumes huge significance when seen along with ‘Statement of Concern’ of eminent citizens led by Justice VR Krishna Iyer and Justice AP Shah seeking halting of UID/Aadhaar project on September 28, 2010, truckload of 3.57 crore signatures against Aadhaar/UID submitted to the Prime Minister on 14 March, 2013, West Bengal Assembly’s passing unanimous resolution against coercive Aadhaar on December 2, 2013; the Supreme Court’s 9-judge constitution bench recording that Kerala, Karnataka, West Bengal, Punjab and Puducherry have supported the petitioners who are seeking scrapping of UID/Aadhaar in its verdict of August 24, 2017; which was vehemently opposed by proponents of Aadhaar, the Rajya Sabha’s vociferous opposition to enactment of the Aadhaar Act as Money Bill, opposition’s bitter protest against mandatory Aadhaar and the enactment of the Aadhaar Act, 2016, rejection of the Aadhaar project by multi-party Parliamentary Standing Committee on Finance, citizens’ declarations and resolutions against aadhaar at the meetings of peoples movements, employees and trade unions and short duration discussion on Aadhaar demonstrating that government’s claims about savings from Aadhaar being questionable.
The Attorney General’s “Note in Writ Petition (Civil) 494 of 2012 Justice KS Puttaswamy (Retd) V Union of India and others and other connected cases” dated August 25, 2015, is a deliberate exercise in choosing not to act “aid of the Supreme Court”. The note reads, “The Government will be open for the deadline for linking Aadhaar to various programs being extended for another three months till March 31, 2018 for those who do not have Aadhaar. These extensions will be made using powers under the Aadhaar Act and/or other legislations and will apply only to the persons who do not have Aadhaar and are willing to enroll for Aadhaar. They will be facilitated to enroll for Aadhaar and will be provided benefits and services through alternate means of identification until such enrolment. Those who have Aadhaar are required to seed/link their Aadhaar with SIM Card (as per Lokniti case), with bank accounts, PAN and other schemes where Section 7 notifications have been issued.” This submission tantamount to contending that the Attorney General’s opinion is superior to all the orders passed by the Supreme Court till and the law enacted by Parliament of India. The first and foremost thing Attorney General is required to inform the court and citizens in general as to why it has not complied with court’s direction.
A 5-judge constitution bench headed by the Chief Justice of India had directed unequivocally, “4. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013. 5. 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”. The fact that this scheme is “purely voluntary” has been repeated by the court in its subsequent order of September 14, 2016 after September 12, 2016 when the Aadhaar Act, 2016, came into force in toto. The verdict on June 9 and the order of June 27, 2017, categorically endorsed the order of this constitution bench, the first constitution bench in the case challenging the constitutionality of Central Identities Data Repository (CIDR) of 12-digit biometric data-based Unique Identification (UID)/Aadhaar numbers of residents of India who have lived in India for at least 182 days.
The Attorney General feigned ignorance about the verdict of the Supreme Court dated June 9, 2017. This verdict states that “it is clear that there is no provision in Aadhaar Act which makes enrolment compulsory. May be for the purpose of obtaining benefits, proof of Aadhaar card is necessary as per Section 7 of the Act. Proviso to Section 7 stipulates that if an Aadhaar number is not assigned to enable an individual, he shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service” and categorically states “Thus, enrolment under Aadhaar is voluntary” at paragraph 90-91 (page no. 105-106) of the 157-page long verdict. This verdict makes it quite clear that the Attorney General’s reading of Section 7 is flawed.
In the light of this verdict, there is a logical and legal compulsion for all governmental and non-governmental institutions to ensure that all further activities relating to collection/feeding/seeding of Aadhaar number being undertaken currently should be suspended with immediate effect. In other words, henceforth no more mandatory collection of Aadhaar numbers for feeding/seeding of collected Aadhaar data is permissible. In order to comply with the court’s order in letter and spirit, all the central, state, public and private agencies who are implementing UID/Aadhaar-related schemes and systems are under a legal obligation to issue orders in this regard.
Following this verdict, it is evident that no person can be deprived of any service for want of UID/Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities have to modify their forms/circulars/likes so as to not compulsorily require Aadhaar number in order to meet the requirement of the court’s repeated orders.
The Attorney General’s submission saying, “Those who have Aadhaar are required to seed/link their Aadhaar with SIM card (as per Lokniti case)” is an exercise in sophistry, which is unbecoming of a constitutional authority like him. The order in Lokniti case was passed by a 2-judge bench in February 2017 and is inconsequential on three counts.
The following facts reveal that the claim of bipartisan support is an exercise in factual misrepresentation:
As to claims about savings from UID/Aadhaar project, insincerity has been evident from the very outset.
Having read the orders of Justice Rohinton F Nariman and Justice DY Chandrachud on right to privacy in CIDR of the biometric unique identification (UID)/Aadhaar number case, Justice Sanjay Kishan Kaul, authored a separate but a concurring 47-page order as part of the 9-judge constitution bench of the Supreme Court. He underlined, “This reference has arisen from the challenge to what is called the ‘Aadhaar Card Scheme,’ referring to the biometric profiling-based scheme of CIDR of UID/Aadhaar numbers.
It is significant that Justice Kaul raised the question of धर्म (justice) and अधर्म (injustice) in his order. He wrote: “It is wrong to consider that the concept of the supervening spirit of justice manifesting in different forms to cure the evils of a new age is unknown to Indian history.” He recalled a Sanskrit verse of Chapter 4 of The Bhagavad Geeta to underline that “The meaning of this profound statement, when viewed after a thousand generations, is this: That each age and each generation brings with it the challenges and tribulations of the times. But that supreme spirit of justice manifests itself in different eras, in different continents and in different social situations, as different values to ensure that there always exists the protection and preservation of certain eternally cherished rights and ideals. It is a reflection of this divine ‘Brooding spirit of the law’, ‘the collective conscience’, ‘the intelligence of a future day’ that has found mention in the ideals enshrined in inter- alia, Article 14 and 21, which together serve as the heart stones of the Constitution.”
The significance of 8th verse of The Bhagavad Geeta which he cited in his order becomes more evident if it is read with the preceding 7th verse which reads: यदा यदा हि धर्मस्य ग्लानिर्भवति भारत। अभ्युत्थानमधर्मस्य तदात्मानं सृजाम्यहम् II The subsequent verse reads: परित्राणाय साधुनाम विनाशाय च दुष्कृताम्I धर्मसंस्थापनार्थाय संभवामि युगे युगे II Together it means- whenever righteousness declines and unrighteousness is rampant, I manifest myself. I manifest myself from age to age to defend the pious, destroy the wicked, and strengthen righteousness.
Notably, Justice Kaul traces the origin of Articles 14 (right to equality before law) and 21 (right to protection of life and liberty) of the Indian Constitution in The Bhagavad Geeta. It is evident that his order reference to government’s position on right to privacy in the scheme of CIDR of UID/Aadhaar numbers as अधर्म, evil. He factors in the contemporary and historical context of the human identification and profiling. The verdict in this case is historic and of global significance because it establishes धर्म, righteousness and destroys अधर्म, the evil acting on behalf of the universal principal “I” mentioned in Bhagavad Geeta.
He observed, “It cannot be said that a person should be profiled to the nth extent for all and sundry to know”, something which is being done under CIDR of UID/Aadhaar number scheme. He cites the European Union Regulation, 2016, on data privacy that deals with the protection of natural persons with regard to the processing of personal data and on the free movement of such data. The regulation defines ‘profiling’ as any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements. Such profiling can result in discrimination based on religion, ethnicity and caste.” It is something which is underway as part of CIDR of UID/Aadhaar number scheme.
This is similar to what the predecessors of Adolf Hitler did in Germany. Prior to the arrival of the Nazi party government, the German government had hired the services of IBM, a US-based company, which was in the 'census' business, including racial census that entailed not only counting the Jews but also identifying them. As a result when Hitler came to power, he had the lists of Jewish names based on profiling during census. The Nazis inherited these lists from the previous government like BJP-led government has inherited and adopted the CIDR project of the Congress-led government in India. At the US Holocaust Museum in Washington, DC, there is an exhibit of an IBM Hollerith D-11 card sorting machine that was responsible for organising the census of 1933 that first identified the Jews. IBM has not disputed its involvement in the exercise. It merely said its subsidiary in Germany was beyond its control a fact, which has been highlighted in the book IBM and the Holocaust. If this is not अधर्म, evil, what else is?
Dwelling on the subject of “the right to be” or privacy before recollecting the words of Bhagavad Gita, he cited the words of Lord Action contained in The History of Freedom and Other Essays published in 1907, wherein he said, “The sacred rights of mankind are not to be rummaged for among old parchments of musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the hand of Divinity itself, and can never be obscured by mortal power”. Drawing on such eminent resources, Justice Kaul observed, “Privacy is an inherent right. It is thus not given, but already exists” and added that privacy “is nothing but a form of dignity, which itself is a subset of liberty”. He further observed, “Privacy is also the key to freedom of thought. A person has a right to think.” Notably, mind is the name given to sequence of thoughts and, in fact, it is the human mind which takes birth, grows and governs human life.
Taking note of the concerns expressed regarding this UID/Aadhaar number scheme “infringing the right to privacy”, he suggested tests “for limiting the discretion of the State”. These tests include ascertaining whether the proposed action is “necessary in a democratic society for a legitimate aim”, the “extent of such interference” is “proportionate to the need for such interference”, whether there are “procedural guarantees against abuse of such interference” and whether actions such as seeding of UID/Aadhaar number with citizens’ social entitlements and pre-existing databases is “sanctioned by law”. There is sufficient evidence to establish that this scheme fails in all the fours tests because the aim itself is unnecessary and illegitimate, entails disproportionate and unlimited interference and “procedural guarantees” do not meet the test of natural justice because of provisions like through de-activation of UID numbers which consequents in “civil death”.
In such a backdrop, disclosures made in 2010 on the subject of Approach paper for a legislation on privacy of the Central government assumes great relevance. It seemed to underline the virtues of databases which are in disconnected silos which ensure privacy and information is made available on a need to know basis. Convergence of databases as envisaged in the scheme of CIDR of UID/Aadhaar numbers through seeding results in death of privacy. It has been admitted officially that “data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralised manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage. However, all this is likely to change with the implementation of the UID project. One of the inevitable consequences of the UID project will be that the UID number will unify multiple databases. As more and more agencies of the government sign on to the UID project, the UID number will become the common thread that links all those databases together. Over time, private enterprise could also adopt the UID number as an identifier for the purposes of the delivery of their services or even for enrollment as a customer. Once this happens, the separation of data that currently exists between multiple databases will vanish.”
This paper revealed that “private detective agencies, if allowed to operate without regulation, could potentially wreak considerable havoc on the personal information of a citizen”. The information obtained under RTI reveals that private foreign agencies involved in CIDR of UID/Aadhaar have been operating as part of their “business of private surveillance” without regulation for quite a long time. They were helping in the creation of “an identifiable profile of everyone on that public database” which includes personal sensitive information like racial or ethnic origin, political affiliations or opinions, religious affiliations and beliefs or other beliefs of a similar nature, membership of a trade union, physical or mental health or condition, sexual life and criminal record. Besides these, it also includes genetic information about an individual that is not otherwise health information, information or an opinion about an individual, financial or proprietary confidential corporate data, data on a person's personality, private family relations, biometric data, social welfare needs of a person or the benefits, support or other social welfare assistance received by the person; and data collected on a person during the process of taxation.
Justice Kaul agreed with the concerns of the petitioners against UID technology that “the technology has made it possible to enter a citizen’s house without knocking at his/her door and this is equally possible both by the State and non-State actors”.
He underlined that “if the individual permits someone to enter the house, it does not mean that others can enter the house. The only check and balance is that it should not harm the other individual or affect his or her rights” reacting to the argument that if citizens have shared data with some digital companies, they should not be reluctant to share for biometric profiling by UIDAI. He concurred with other judges who held that that the right of privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to constitutional rights.
Drawing on Daniel Solove’s 10 Reasons Why Privacy Matters, Justice Kaul observed, “An individual has a right to protect his reputation from being unfairly harmed and such protection of reputation needs to exist not only against falsehood but also certain truths. It cannot be said that a more accurate judgment about people can be facilitated by knowing private details about their lives – people judge us badly, they judge us in haste, they judge out of context, they judge without hearing the whole story and they judge with hypocrisy. Privacy lets people protect themselves from these troublesome judgments.”
He cites the poetic words of Felicia Lamport in his order. It is titled Deprivacy and reads as under:
Although we feel unknown, ignoredAs unrecorded blanks,Take heart! Our vital selves are storedIn giant data banks,
Our childhoods and maturities,Efficiently compiled,Our Stocks and insecuritiesAll permanently filed,
Our tastes and our proclivities,In gross and in particular,Our incomes, our activitiesBoth extra-and curricular.
And such will be our happy stateUntil the day we dieWhen we’ll be snatched up by the greaComputer in the Sky.”
This poem is published by The University of Michigan Press in book The Assault on Privacy of Arthur R Miller.
Justice Kaul observed, “The impact of the digital age results in information on the internet being permanent. Humans forget, but the internet does not forget and does not let humans forget. Any endeavour to remove information from the internet does not result in its absolute obliteration. The footprints remain. It is thus, said in the digital world, preservation is the norm and forgetting a struggle”. He referred to the European Union Regulation of 2016 that recognised ‘the right to be forgotten’, which means that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/ information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. He recommended that “privacy of children will require special protection not just in the context of the virtual world, but also the real world”.
Drawing on European Union Regulation of 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, in concurrence with Justice Chandrachud, he directed: “The State must ensure that information is not used without the consent of users and that it is used for the purpose and to the extent it was disclosed.”
Drawing on the findings of government’s Group of Experts on Privacy under the chairmanship of Justice AP Shah, he observed “the concerns about privacy have been left unattended for quite some time and thus an infringement of the right of privacy cannot be left to be formulated by the legislature”.
It is noteworthy that he concurred with the view that the majority judgment in the case of ADM Jabalpur vs Shivkant Shukla “was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection”.
Having taken this position, this otherwise good order seems to display its imperfection from the philosophical point of view when Justice Kaul deviated to say, “However, no right is unbridled and so is it with privacy”. He said while “the right of an individual to exercise control over his personal data and to be able to control his/her own life would also encompass his right to control his existence on the internet”, “needless to say that this would not be an absolute right”. He reiterated: “The right to privacy as already observed is not absolute” by referring to “national security” and “public interest”. While these words have the meaning which the state gives to it, in exceptional circumstances reasonable restrictions have compelling logic but such restrictions cannot be made applicable indiscriminately. Exceptional circumstances cannot make an absolute natural right less absolute for “we, the people”.
Human life is a gift of privacy of our ancestors, our mother and father. Will anyone dare say to their parents that they do not have an absolute right of privacy? Will Mother India tell her children that they must be exposed to public at large like animals? Who will have the heart to their children and grandchildren that they do not have this right?
The Union of India, through the Attorney General of India and several state governments like Haryana, Maharashtra and Rajasthan, Unique Identification Authority of India (UIDAI), Telecom Regulatory Authority of India (TRAI) and Vidhi Centre for Legal Policy, showed the audacity to do so but have been roundly repulsed by the Supreme Court for their questionable stance.
Given the fact that UID/Aadhaar case has already been part heard by the original 3-judge bench prior to it being referred to the constitution bench, judicial discipline requires that the case must be fully heard by the original bench as it has been referred back to it by Justice RF Nariman in his 122-page order as part of the landmark verdict of the 9-judge constitution bench of the Supreme Court on right to privacy. Notably, in their separate orders, Justice Abhay Manohar Sapre, Justice Sanjay Kishan Kaul and Justice J. Chelameswar have expressed agreement with Justice Nariman’s reasoning. Attorney General seems to have done the mischief of only referring to the order by four judges authored by Justice DY Chandrachud on behalf of Justice Jagdish Singh Khehar, Justice S Abdul Nazeer and Justice RK Agarwal. He has ignored five other orders of the constitution bench, including by Justice SA Bobde.
In ADM Jabalpur case, a majority of four judges of the court (with Justice HR Khanna dissenting) held that: “Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom” incorrectly assuming that the Constitution is the sole repository of the right to life and liberty. Given the fact this verdict has been overruled and needs to be “ten fathom deep, with no chance of resurrection”, how can it be inferred that right to privacy as part of right to life and personal liberty is not an absolute right.
The court’s verdict and his order makes it abundantly clear that the Office Memorandum dated July 31, 2017, was issued under the signature of group coordinator, Cyber Law and UIDAI, Ministry of Electronics and Information Technology (MeitY) ahead of the court’s verdict as part of the government’s argument underlining that right to privacy is not a fundamental right. Justice Chandrachud’s 266-page order takes cognizance of the fact that it was only during the course of the hearing of the case that the Central government brought to light an Office Memorandum by which it constituted a committee to “suggest a draft data protection bill”. He observed, “We expect that the Union government shall follow up on its decision by taking all necessary and proper steps.” Such touching faith is akin to the faith of the judges who suspended right to life and personal liberty during Emergency. Justice Chandrachud made this observation despite recording that “the Privacy Bill, 2011, to provide for the right to privacy to citizens of India and to regulate the collection, maintenance and dissemination of their personal information and for penalisation for violation of such rights and matters connected therewith, is pending”. He did not take the government to task for failing to enact the right to privacy law before enacting the Aadhaar Act and implementing the UID/Aadhaar scheme unmindful of parliamentary recommendation.
It seems the court was misled by change of goal post by the government to talk about the expert committee on the proposed data protection Bill instead of taking the government to task for failing to get the pending right to privacy Bill passed. Unless right to privacy law is enacted before implementing any electronic and biometric identification exercise, it will be akin to letting adharma reign and evil designs have a field day.
Dr Gopal Krishna is convener, Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010. He is a public policy and law researcher and editor of www toxicswatch.org.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]