Is Right to Privacy is a Fundamental Right

UGC, JNU & other agencies violating Supreme Court’s orders UID/Aadhaar Number

Supreme Court all set to pronounce verdict this week on whether Right to Privacy is a Fundamental Right

Will the Court save present & future Indians from cyber-biometric Panopticon?

Disregarding previous court orders and unmindful of 9th June 2017 verdict of Justice A K Sikri headed Bench of Supreme Court on 12 digit biometric Unique Identification (UID)/Aadhaar, Dr Sajjan Singh, Assistant Registrar (Evaluation), Jawaharlal Nehru University (JNU), has failed to modify a circular on subject of “inscription of when Unique ID/Aadhaar Number and photograph in Marksheets and Degree Certificates” on 20 April. (JNU circular attached) The circular referred to a letter from University Grants Commission (UGC) in this regard. It is a case of UGC and JNU refusing to comply with Court’s verdict. The case of Shehla Rashid, ex-Vice President of JNU Student Union being denied submission of her M Phil dissertation in the absence of UID/Aadhaar number demonstrates how UGC, JNU and other ‘welfare agencies’ are showing total disregard towards Court’s verdict.

After its circular making UID/Aadhaar number mandatory was challenged, UGC, Union Ministry of Human Resource Development had “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. The earlier circular of UGC was in manifest violation of Court’s order.

The current circular dated 20 April 2017 from JNU administration draws on a UGC letter dated 21st March 2016. A communication from UGC dated 26 July, 2016 states, “The bank account number seeded with Aadhaar should be mentioned on the portal.” Notably, both these circulars on which the JNU circular is based are of the period in which even the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was not in force. It came into force after its notification in the Gazette of India on 12 September, 2016. Therefore, the circular is illegal and is in violation of the Court’s order.

Nowhere does the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 provide for and authorise “seeding”’ of UID/Aadhaar numbers in databases. The Act provides for only two uses:

  1. Authentication, which means that biometric or demographic data can be sent to the UID’s CIDR (Central Identities Data Repository) to return a `yes/no’ reply to the question whether you are who you say you are.
  2. eKYC, which does something they had said they would never do, viz., give the data on their data base (except core biometric data – but they have no means of stopping any agency from collecting and keeping biometrics when it is given for authentication) to an Authorised Service Agency.

Section 8(2) (b) of the Act is categorical that an agency requesting authentication “ensure(s) that the identity information of an individual is only used for submission” to the Central Identities Data Repository (CIDR) of 12-digit biometric Unique Identification (UID)/Aadhaar Numbers “for authentication”.  It does not authorise anyone to hold on to the number.  Therefore, seeding the UID/Aadhaar number by UGC and JNU is itself beyond the law.

It is an established constitutional norm that the last order of the Supreme Court is the law of the land.  UGC and JNU have failed to take note of the verdict of the Supreme Court dated 9th June 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.

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 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 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 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 verdict. Given the fact that the child’s welfare was the supreme consideration, relevant communications must be modified with utmost priority.

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. Following Supreme Court’s verdict, on August 4, 2017, Justice A. K. Jayasankaran Nambiar bench of Kerala High Court issued an order allowing transaction of business by the petitioner without UID/Aadhaar. In a related development, Union Ministry of Defence issued an Extraordinary Gazette Notification No.S.O-747(E) dated March 3, 2017, published in the Gazette of India dated March 6, 2017, concerning military pensions, in which it stated that, “An individual eligible to receive the pension benefits is hereby required to furnish proof of possession of Aadhaar number or undergo Aadhaar authentication”. Major General (Retd) S.G.Vombatkere challenged it, Justice A.S. Bopanna Bench of Karnataka High Court passed an order on April 27, 2017, directing the Government “not to insist upon Aadhaar card or proof of application for issue of Aadhaar card for the purpose of disbursing military pension to the Petitioner if he is otherwise entitled to receive such pension”.

Besides these High Courts even High Courts of Jammu & Kashmir and Andhra Pradesh have passed orders in pursuance of Supreme Court’s orders, it might be useful if all the concerned High Courts take suo motto notice of non-compliance of the verdict by UGC, JNU and other central and state and non-state agencies to set matters right in order to protect the fundamental rights of students and citizens. Even children in schools are being coerced to get their UID/Aadhaar seeded. In such a situation, as the custodian of children High Courts have an obligation to come to their rescue at the earliest.

The 21st March 2017 circular from Secretary, UGC reiterated the demand saying “Once again, I request you to introduce identification mechanisms like photograph and Unique lD/Aadhaar number in students’ certificates.” It added, “This has been approved by the Commission in its 521st meeting held on 22nd February, 2017.” The decision of the 521st meeting is available at http://www.ugc.ac.in/pdfnews/7782001_521-Minutes-without-establishment.pdf. It makes no mention of ID/Aadhaar. Nowhere has it been mentioned that the revised Public Notice issued on September 14, 2016 has been withdrawn. Thus, the validity and legality of the 21stMarch, 2017 is questionable in the light of the 9th June verdict of the Supreme Court.

Both the UGC and JNU circular need to be revised in compliance with Court’s verdict. In countries where rule of law prevail the last order of the Supreme Court is the law of the land. No circular can prevail over Court’s verdict.

A 2-days workshop titled “Understanding Aadhaar and Its New Challenges” organized by Centre for Studies in Science Policy, Jawaharlal Nehru University (JNU) on 26-27 May, 2016 deliberated on how the JAM Number Trinity– Jan Dhan Yojana, Aadhaar and Mobile numbers— is a fish bait to trap unsuspecting citizens into the world’s biggest transnational biometric database. This turns them into subjects under surveillance forever by letting companies like Safran, Accenture and Ernst & Young get unrestricted access to personal sensitive data of Indians forever as per their Contract Agreements with Unique Identification Authority of India (UIDAI), Minister ofor Law, Electronics and Information Technology in the name of a set of welfare programmes.

In the Central Identities Data Repository (CIDR) of 12-digit biometric Unique Identification (UID)/Aadhaar Numbers, the Indian residents are seen by somebody from any part of the planet but they do not see the person who is seeing them. He/she is the object of information, but never a subject in communication like in this Panopticon which is an architectural configuration that allows for a single guard’s gaze to view all inmates in a prison, but prevents those inmates from knowing exactly when they are being watched and from where. This design is a general model of defining power relations in the everyday life of humans.

Notably, Biometrics “means the technologies that measure and analyse human body characteristics, such as ‘fingerprints’, ‘eye retinas and irises’, ‘voice patterns’, “facial patterns’, ‘hand measurements’ and ‘DNA’ for authentication purposes” as per Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000. The minutes of Approach Paper for legislation on Privacy communicated by the Department of Personnel and Training, Government of India defined ‘Personal Sensitive Data’ that includes biometric data and genetic information.

The creation of CIDR is an act of political record keeping. It is an act of using human body as data. The motive of CIDR has some link with what happened in a Court in Norway in the case involving Anders Behring Breivik, who has been found guilty of killing eight people in Oslo and 69 at Utøya on July 22, 2011. Brevik’s case reminds one of the words used in his 1,518 pages-long manifesto ‘2083: A European Declaration of Independence’. This manifesto makes repeated reference to ‘identification,’ to the word ‘identity’ over 100 times, to ‘unique’ over 40 times and to ‘identification’ over 10 times. There are references to ‘state-issued identity cards’, ‘converts’ identity cards’, ‘identification card’, ‘fingerprints’, ‘DNA’ etc. Breivik’s obsession with ‘identification’ mirrors the fixation of the promoters of UID/Aadhaar. His manifesto finds resonance in the exercise for CIDR, an ‘online database’. This UID/Aadhaar for CIDR in every context can act as a “unique personal identifier”. This identifier is to everyday surveillance as the discovery of longitude was to navigation. The fixation with identification based on ‘biological attributes of an individual’ provided under the Aadhaar Act 2016 has unprecedented political implications.

The revelations in National Defense Magazine, a US publication in an article entitled “Defense Department Under Pressure to Share Biometric Data” underline that concerns regarding violation of fundamental right to privacy is linked to deeper strategic implications of biometric surveillance as a political and economic operator.

Linking of biometric UID/Aadhaar Number to all public services is designed to cause civil death. Civil death is the loss of all or almost all civil rights by a person caused by the government of a country which results in the loss of civil rights.  The declaration of a person as an outlaw has been a common form of civil death. Now it is apparent that denial of rights in the absence of UID/Aadhaar is an act of coercion wherein people are being compelled to share their personal sensitive biological information else they will face civil death.

Now that the 9-Judge Constitution Bench of the Supreme Court is all set to pronounce its verdict this week on whether Right to Privacy is a Fundamental Right or not, it is apparent that it likely to apply the doctrine of prohibition of “unconstitutional condition” which means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. Notably, it is unreasonable in a special sense that Aadhaar takes away or abridges the exercise of a right protected by the Constitution. In Ahmedabad St. Xavier’s College Society v. State of Gujarat, (1974), the Court has drawn on a verdict from US Supreme Court in Frost and Frost Trucking Co. v. Railroad Comm to hold that State does not have the right to impose conditions which require the relinquishment of constitutional rights. If the state succeeds in compelling the surrender of one constitutional right as a condition of its favour, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution be manipulated out of existence.

In the light of this verdict, it is quite evident that the implementation of UID/Aadhaar is an exercise which is forbidden by our Constitution. If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. State does not have the constitutional power to discontinue benefits due to citizens. State’s power to withhold recognition or affiliation altogether does not carry with it unlimited power to impose conditions which have the effect of restraining the exercise of fundamental rights. Infringement of a fundamental right is nonetheless infringement because it is accomplished through the conditioning of a privilege. If a Legislature attaches to a public benefit or privilege restraining the exercise of a fundamental right, the restraint can draw no constitutional strength whatsoever from its being attached to benefit or privilege. This is applicable to the Aadhaar Act, 2016.

Notably, Re Kerala Education Bill (1958) was the first case in India to lay down the doctrine of the prohibition of “unconstitutional conditions“. The doctrine of unconstitutional conditions prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights. This is despite the fact that there is no antecedent right to that benefit in the first place. It emerges that no Central or State Government can coerce citizens to access subsidies by sacrificing their private data by enrolling for UID/Aadhaar given the fact that they have a right to subsidy. No Government has the constitutional power to make right to have rights condition precedent.

Apparently, under some external influence, Central Government’s stance has been insincere from the every outset. The total estimated budget of the biometric UID/Aadhaar number project has not been disclosed till date. In any case unless total estimated budget of the project is revealed all claims of benefits are suspect and untrustworthy.

Public Statement;For DetailsDr Gopal KrishnaCitizens Forum for Civil Liberties (CFCL). He had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. He is editor of www.toxicswatch.orgMb: 9818089660, 8227816731, E-mail: 1715krishna@gmail.com

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s