Defying Fundamental Rights With Impunity Under The Gaze Of Constitution Benches

Only the original 3-Judge Bench or a 11-Judge Bench should hear the UID/Aadhaar case after the 9 Judge Bench verdict 

Ahead of hearing in the case related to world's biggest Central Identities Data Repository (CIDR) of 12 –digit biometric Unique Identification (UID)/Aadhaar numbers amidst decline in the number of citizens of the country due to deaths as a consequence of UID/Aadhaar menace, it is germane to recollect happenings in another Supreme Court.

A Supreme Court judge who was drafting a document declaring the Law on Biometric Registration unconstitutional was sacked after challenging the government’s plan to collect fingerprints and other biometric data from citizens. She was sacked. Before that she was taken off a case related to biometric identification which she had been handling.

"Adoption of a National Computerized Identification Reference System (has been) declared null and void for being unconstitutional”, concluded the final decision by a 12-Judge Bench of the Supreme Court. The Court pronounced this verdict after observing that given the record-keeping power of the computer; only the indifferent fail to perceive the danger that law can give “to the government the power to compile a devastating dossier against unsuspecting citizens.” The Court recollected the warning of Harry Kalven, Jr., an American jurist, who said, "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to forget."

In another decision the Court found that the “blanket and indiscriminate nature” of the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offenses, failed to strike a fair balance between competing public and private interests and ruled that the government had “overstepped any acceptable margin of appreciation” in this regard.

These decisions are not of Supreme Court of India in the case of 12 digit biometric Unique Identification (UID)/Aadhaar number which is seized with a similar subject matter at least since November 30, 2012 wherein the notice was issued in Justice K S Puttaswamy V Union of India case [WP(C) No.494/2012] by its Bench of Chief Justice Altamas Kabir and Justice J. Chelameswar after the trashing of the National Identification Authority of India Bill, 2010 by Parliamentary Standing Committee on Finance in December, 2011 following the introduction of the Bill in the Rajya Sabha on December 3, 2010. After the introduction of the Bill, the Speaker, Lok Sabha in consultation with the Chairman, Rajya Sabha had referred the Bill to the Standing Committee on Finance, which presented the Report to the Lok Sabha and laid it in Rajya Sabha on December 13, 2011.

The first case refers to the dismissal of Justice Clara Sooronkulova, a judge at the Constitutional Chamber of the Supreme Court of Kyrgyzstan by Parliament of the Central Asian state in the third attempt through an engineered majority. Following her sacking, Justice Sooronkulova said that the judges who voted against her in the Judicial Council were subject to undue influence from the office of President Almazbek Atambaev to ensure that biometric identification law is not declared unconstitutional by her. She said, “everyone has to decide for himself whether he wants them to trust the state or not. If you do not deal with politics, politics will deal with you.” Her colleague Emil Oskonbaev was one of the four who opposed taking her off the biometric law case when the Judicial Council voted. Oskonbaev wished to step down from the Council in protest, but his request was refused on the grounds that a quorum of judges was needed. Endorsing her position, Temirbek Asanbekov, a former presidential candidate of Kyrgyzstan, reacted, “By introducing biometric registration as a condition for participating in the election, the state creates artificial barriers. To elect and be elected is a constitutional right and not an obligation. We should bear in mind the general state of information security in the country. Citizens’ data could become accessible by various extortionists or even international terrorists. Who will guarantee that evil-minded people will not gain access to this database?” Her dismissal has widely been noted as an act of governmental interference in judiciary.  She was sacked on June 18, 2015.

The second decision refers to the decision of Supreme Court of Philippines dated July 23, 1998 invalidated the order of President Fidel V. Ramos on December 12, 1996 adopting National Computerized Identification Reference System for citizens and foreigners in Philippines on constitutional grounds and for protection of fundamental rights within less than two years.

The third decision refers to a decision of the European Court of Human Rights (ECHR). The case was heard publicly on February 27, 2008, and the unanimous decision of 17 judges was delivered on December 4, 2008. This decision is nonappealable.

Unlike these Courts, the Supreme Court of India remains seized with the matter of biometric data based unique identification of Indian residents since the issuance of an interim order dated of September 23, 2013 by its Bench of Dr. Justice B.S. Chauhan and Justice S.A. Bobde stating “no person should suffer for not getting the Adhaar card inspite of the fact that some authority had issued a circular making it mandatory”. The same Bench reiterated on November 26, 2013 that "Interim order to continue, in the meantime." In a different case Unique Identification Authority of India of India V Central Bureau of Investigation, the Bench of Justice B.S. Chauhan and Justice J. Chelameswar on ordered on March 24, 2014 that “In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith.” This categorical order made it crystal clear that biometric UID/Aadhaar cannot be made mandatory in any situation. This order was repeated on March 16, 2015 by the Bench of Justice J. Chelameswar, Justice S.A. Bobde and Justice C. Nagappan saying, “In the meanwhile, it is brought to our notice that in certain quarters, Aadhar identification is being insisted upon by the various authorities, we do not propose to go into the specific instances. Since Union of India is represented by learned Solicitor General and all the States are represented through their respective counsel, we expect that both the Union of India and States and all their functionaries should adhere to the Order passed by this Court on 23rd September, 2013.”

After hearing the matter at length, the same Bench observed, “In this batch of matters, a scheme propounded by the Government of India popularly known as “Aadhaar Card Scheme” is under attack on various counts. For the purpose of this order, it is not necessary for us to go into the details of the nature of the scheme and the various counts on which the scheme is attacked. Suffice it to say that under the said scheme the Government of India is collecting and compiling both the demographic and biometric data of the residents of this country to be used for various purposes, the details of which are not relevant at present” on August 11, 2015. It specifically ordered, “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.” Disregarding the opposition of senior counsels including by a former Solicitor General and pursuant to the submission of the Attorney General that “the legal position regarding the existence of the fundamental right to privacy is doubtful”, this Bench inferred that it is better that it be examined and authoritatively decided by a Bench of appropriate strength. It directed the Registry to place these matters before the Chief Justice for appropriate orders.

A Constitution Bench of “appropriate strength” Chief Justice H.L. Dattu, Justices M.Y. Eqbal, C. Nagappan, Arun Mishra and Amitava Roy ordered, “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. 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 order of Chief Justice headed Constitution Bench of “appropriate strength” further said, "Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest" on October 15, 2015.

Even as a Constitution Bench of “appropriate strength” remains to be constituted even after one year and three months of the order of despite the order of Chief Justice headed Constitution Bench of Five Judges comprising “appropriate strength” since October 15, 2015 and the Supreme Court’s Registry has remained deaf to the order, some 639 organizations denied fundamental rights to Indians in violation of Supreme Court’s Constitution Bench order on the subject of 12-digit biometric Unique Identification (UID)/Aadhaar Number. This has been revealed by a government document titled “Aadhaar: Dynamics of Digital Identity”. On September 14, 2016, Supreme Court’s Bench of Justice V Gopala Gowda and Justice Adarsh Kumar Goel reiterated the earlier order of Constitution Bench after the passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 underlining the fact that last written order of the Supreme Court is the law of the land. This case of All India Muslim Minority Students Council was referred to this Bench by the Bench of Justice T.S. Thakur, Mr. A.M. Khanwilkar and Dr. Justice D.Y. Chandrachud on September 9, 2016.

It must also be noted that responding to the direction issued to the Union of India and Union Territory of Chandigarh by Punjab and Haryana High Court in the matter of Civil Writ Petition 569 of 2013 filed in the High Court against Union of India and others, the Executive Order for making Unique Identification (UID)/Aadhaar has been withdrawn. In its order the bench of Justice A K Sikri, Chief Justice and Justice Rakesh Kumar Jain dated February 19, 2013 had not noted that the petition “raises a pure question of law.” Since the Executive Order was withdrawn, the case too was disposed of March 2, 2013 with a two page order. The order is attached. The Court had observed, “In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards." Several High Court’s have taken similar positions, drawing on Supreme Court’s orders, Jammu & Kashmir High Court Bench of Chief Justice. N. Paul Vasanthakumar and Justice Ali Mohammad Magrey have stayed Government’s order regarding the installation of Aadhaar Enabled Biometric System (AEBAS) in Government departments to ensure the attendance of Government employees in their respective departments. This makes use of AEBAS by some 639 organizations and other agencies questionable because its implementation amount to denial of fundamental rights.

Disregarding such categorical directions and continuing its assault on fundamental rights, Union Ministry of Finance under Arun Jaitley has communicated a Common Strategy to be adopted by Banks to achieve the targets under Aadhaar Seeding in mission mode vide letter F.No.  21(23)/2014-FI (MISSION) dated July 13, 2016 fixing the timelines for achieving 100% Aadhaar seeding of all the accounts and common strategies to be adopted by all the banks have also been communicated. The list of notifications and circulars issued by the UIDAI indicate that there were no steps taken to strictly follow all the earlier orders passed by the Court. The application programming interfaces (API) Aadhaar authentication usage and the UIDAI press release of November 29, 2016 indicates they have directed regional centres to enrol Joint Entrance Examination aspirants on priority. This is discriminatory and vindicates the apprehensions expressed by National Human Rights Commission (NHRC) in its submission before the Parliamentary Standing Committee on Finance that had examined and trashed the Aadhaar Bill 2010. Referring to the arrival of the era of the Adhaar number and the incident of surveillance, in an article titled My Call Detail Records and A Citizen’s Right to Privacy published in Gujarati, Hindi, Urdu and English, Jaitley as Leader of Opposition, Rajya Sabha wrote, “This incident throws up another legitimate fear.” Notably, his Government through the Attorney General successfully managed to plant doubt in the mind of Justice Chelameswar headed Bench regarding right to privacy being a fundamental right despite pre-existing judicial pronouncements in this respect.

The Aadhaar authentication description ignores modification of its authentication framework and consequently the forms/circulars/likes/API so as to not compulsorily require the Aadhaar number. The perusal of UIDAI events on its website indicates that the UIDAI is running Sensitization Workshop on Aadhaar Seeding and Authentication Services every fortnight. A circular also indicates that the UIDAI has not restricted its activities to those permitted by the Court. The UIDAI webpage for its advertisements clearly ignores indicates that it has ignored the requirement to 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 UID/Aadhaar Number. The Aadhaar authentication description has ignored modification of its authentication processes and APIs so that Aadhaar identification cannot be insisted upon by the various authorities. The UIDAI website shows UIDAI has undertaken multiple activities to ensure Aadhaar seeding in facilitated in various scheme databases. The introduction to Aadhaar Authentication from its Authentication API show that ignores any modification of its authentication API or KYC frameworks so that the production of an UID/Aadhaar Number will not be condition for obtaining any benefits otherwise due to a citizen. The operation model overview for the Aadhaar authentication continues to ignore altering its authentication and KYC services to ensure that the Aadhaar card Scheme remains purely voluntary and it cannot be made mandatory.

The API Aadhaar authentication usage from have not been modified to restrict the access of the authentication and KYC services. A copy of the list of live Authenticated User Agencies (AUA), Authentication Service Agencies (ASA), e-KYC User Agencies (KUA) indicates that hundreds of private parties have been allowed by the UIDAI to access the Aadhaar number and associated data thus not restricting the use of the Aadhaar number. UIDAI website shows that UID/Aadhaar Number is being promoted as a financial address. The UIDAI website promotes Aadhaar authentication for financial transactions to promote electronic payments.

A Press Note titled 10 crore Aadhaars linked to Bank Accounts issued by the UIDAI indicates that they have not restricted the use of the UID/Aadhaar Number. One spreadsheet on the National Payments Corporation of India (NPCI)’s website highlights that the UIDAI has been providing authentication and KYC services to the National Payments Corporation of India, a non government company for various banking services.

It is instructive to observe that Election Commission of India is the only agency that has complied with the Supreme Court’s orders in letter and spirit. The Commission revised its order dated February 27, 2015 on August 13, 2015. Its revised order reads: “All further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently under NERPAP shall be suspended with immediate effect till further directions from the Commission. In other words, henceforth no more collection of Aadhaar Numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP.”  NERPAP stands for National Electoral Rolls Purification & Authentication Programme. This revised order of the Election Commission is a model order. It demonstrates how to comply with Court’s order in letter and spirit. All the 639 organisations and other public and private agencies who are implementing UID/Aadhaar related schemes and systems are under a legal obligation to issue similar orders. It is unbecoming of a government to be proven repeatedly wrong in the highest court of law. It signals illegitimate advances of the State which does not wish to be limited by Constitution of India.

It must be noted that whenever circulars and letters of central and state government agencies have been challenged and contested they have consistently withdrawn their circulars and letters. After its circular making UID/aadhaar number mandatory was challenged, University Grants Commission (UGC), Union Ministry of Human Resource Development has “clarified that any student who have applied or wishing to apply for scholarship/fellowship shall not be denied benefit thereof due to non availability of Aadhaar No./Card.” The revised Public Notice was issued on September 14, 2016.

Supreme Court's order of 9th June, 2017 at para 90-91 make it clear that even Aadhaar Act 2016 does not make UID/Aadhaar mandatory reiterating the previous order of the Court.   Notably this was after the enactment of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. It must be recalled that on April 6, 2016 Jairam Ramesh, a former member of Cabinet Committee on UIDAI related matters moved the Supreme Court challenging the decision to treat Aadhaar bill as a money bill, which was passed during Budget session in March 2016, overruling amendments moved in the Rajya Sabha in “utter contempt” of the Rajya Sabha for taking the money bill route to pass the Aadhaar bill. It is germane to note that the revised National Identification Authority of India Bill, 2013 was withdrawn from the Rajya Sabha on March 3, 2016. On the same day The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was introduced as a Money Bill by Jaitley in Lok Sabha.

When the issue of admitted “urgency” for setting up of was repeatedly mentioned before 44th Chief Justice, he constituted the second Constitution Bench on 18 July, 2017 which comprised of himself, Justice Chelameswar, Justice Bobde, Justice Chandrachud and Justice Nazeer, which then referred the question whether privacy is a fundamental right to the third Constitution Bench of 9 Judges comprising of 44th Chief Justice JS Khehar, Justices J Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and S Abdul Nazeer.

In the UID/Aadhaar case, the verdict on right to privacy which was pronounced on August 24, 2017 there are six orders, two of the orders authored by Justice Chelameswar and Justice Nariman sent back the UID/Aadhaar case to the original bench of three judges of this court. The original bench of three judges comprised of Justice Chelameswar and Justice Bobde. As part his order Justice Bobde and all the other judges of the 9 Judge Bench concurred with it by implication given the fact that they did not express any contrary opinion in this regard as part of their respective orders. Justice Nariman’s order as part of the verdict saying, “These cases are, therefore, sent back for adjudication on merits to the original bench of three honourable judges of this court in light of the judgment just delivered by us.” This part of the Justice Nariman’s order is quoted in Justice Chelameswar’s order with concurrence.

In a remarkable departure from the established convention and norms, the fourth Constitution Bench which has now been constituted by the 45th Chief Justice Dipak Misra to hear the Aadhar matter now comprises of 5-Judges namely Chief Justice Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Bhushan to the exclusion of the other judges who were hearing the matter earlier.

As per well established traditions and conventions in the judicial administration having their roots in the Anglo Saxon jurisprudence and practice and which has been embraced by Supreme Court which came into existence almost a century after the establishment of the three chartered High Courts of Calcutta, Bombay, and Madras besides the establishment of certain traditions and conventions in the judicial administration. As per these traditions and conventions, in the UID/Aadhaar case, the proposed Bench should comprise of the original 3 Judge Bench (as per 9 Judge Bench order) or an 11- Judge Bench because the order of a 9-Judge Constitution Bench cannot be overruled by a 5 Judge Constitution Bench.

It is also quite evident that none of five judges of the fourth Constitution Bench were ever part of the original Bench that heard the biometric identification based UID/Aadhaar case.

It is apparent that the advertising and public relations blitzkrieg unleashed by identification and surveillance technology vendors have clouded the minds of legal fraternity. The dangers of trusting such technological advances for determining social policies will consequent in a situation where “[A] warrant requirement will not make much difference to a society that, under the sway of a naive and discredited theory of genetic determinism, is willing to lock people away on the basis of their genes” among other adverse effects. The operation model overview for the Aadhaar authentication indicates that there is no provision to verify the written consent of any person to share biometric information. "Before implementing any biometric application, the Army must undertake a thorough legal analysis of exactly what it wants to do and where it wants to do it" concluded John D. Woodward, Jr.et al in "Legal Assessment: Legal concerns raised by the U.S. Army’s Use of Biometrics" published by RAND Corporation. This implies that besides defence application, the civilian and defence application of biometric profiling in India also merits constitutional scrutiny by an appropriate bench.

The first petition against UID/Aadhaar project was filed against the project on 18 October 2012 in the Supreme Court by Justice K.S. Puttaswamy (Retd). Subsequent to that some 30 cases have been filed in the Supreme Court and the High Courts. The implementing agency, UIDAI was constituted on 28 January, 2009. Almost nine after it came into existence, it is evident that this project has witnessed arrival and departure of nine chief justices. The case has passed through the eyes of  seven judges including Justices Altamas Kabir, P. Sathasivam, Rajendra Mal Lodha, H. L. Dattu, T. S. Thakur, J. S. Khehar and now Dipak Misra.

This cased is about denial of fundamental rights. It is not about contempt of court. It never was. When National Judicial Appointments Commission (NJAC) Act and the 99th Constitutional Amendment assaulted judges' autonomy and independence provided by Constitution, it was rejected by the 5-judges Bench. The Bench in a majority of 4:1 rejected the NJAC Act and the Constitutional Amendment as “unconstitutional and void.” Unmindful of the fact that judges are citizens first, the Court has not shown similar alacrity in safeguarding the fundamental rights although these inalienable rights pre-date Constitution. So far it has saved ‘basic structure’ from an unlimited government, can it save it and the citizens from an unlimited database of present and future Indians? India has not become Kyrgyzstan as yet.

The author is a public policy and law researcher, convener of Citizens Forum for Civil Liberties 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]