Sunday, October 22, 2017
NEW DELHI: The Supreme Court’s verdict, in the 12 digit biometric Unique Identification (UID)/Aadhaar number project case, recognized that, “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution” of India. And thus, ensured that the verdict will have grave impact on the Aadhaar Act 2016 which empowers the government to deactivate the UID/Aadhaar numbers of Indians without their consent.
It is likely that the Central Identities Data Repository (CIDR) of UID/Aadhaar numbers and Aadhaar Act will be declared as violative of citizens’ right to privacy. An unjust law cannot be deemed law.
The Court’s position has been that unjust laws are black laws. The verdict will have positive implications for talks underway in World Trade Organisation (WTO) on e-commerce wherein developed countries want access to all of people's data for free in an era where Uber-isation and Ola-isation of services is happening and attempts are underway to define goods as services. This demand is part of proceedings of WTO.
This verdict illustrates that the Court was not influenced by the colossal misreporting by a large section of the media which got overwhelmed by the blitzkrieg of advertisements from Unique Identification Authority of India (UIDAI).
A joint reading of this verdict and all the Court’s orders in this case will reveal that UID/Aadhaar remains voluntary. A content analysis of reporting by Times Group will reveal this unhealthy pattern of misrepresentation of facts for some reason. It is an open challenge to reporters of Times Group, mobile service providers, RBI, UGC, JNU and other agencies to demonstrate how Court’s order establishing UID/Aadhaar as voluntary even under the Aadhaar Act 2016 can become subordinate to government circulars and letters issued prior to Court’s orders.
The UID/Aadhaar number project is being implemented with the help of foreign biometric technology companies like Safran Group, Accenture, Ernst & Young from France, USA and UK at the rate of Rs 2.75 per enrolment for all the 130 crore present Indians and all future Indians.
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.
It may be recalled that i compliance of the 11 August, 2015 order of Justice J. Chelameswar headed 3-judge bench, Supreme Court's Constitution Bench comprising of Chief Justice of India, Justice J. Chelameswar, Justice S.A. Bobde, Dr. Justice D.Y. Chandrachud and Justice S. Abdul Nazeer heard the UID/Aadhaar number case on 18 July 2017 after more than 700 days. Upon hearing the counsel for the petitioners and respondents, the Constitution Bench passed the following order:
Court has made it clear through all its order since September 2013 till 27 June 2017 that UID/Aadhaar number is remains voluntary. Therefore, no one can be asked to produce UID/Aadhaar for anything. The Court has held that even the Aadhaar Act, 2016 does not make it mandatory. There can be no waiver of fundamental rights. Privacy is intrinsic to freedom and liberty. Constituent Assembly’s position on privacy suffers from the limits of originalist interpretation. The Court’s verdict is alive to the challenges of the digital world, e-commerce and data protection. It underlines that the statutory protection to privacy cannot be a reason to deny a constitutional right. The 9-Judge Bench comprised of Chief justice of India, Justices J Chelameswar, SA Bobde, RK Agarwal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer. Fundamental right to privacy and basic structure has been revealed by jurisprudential imagination of the bench.
It is 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.
As per rulings of the court it is established 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.
After the trashing of UID/Aadhaar by Lok Sabha’s Parliamentary Standing Committee on Finance and later by Rajya Sabha, the Constitution Bench of the Court too has trashed government’s position after seeing through the coercive and unconstitutional nature of UID/Aadhaar number project by deciding the matter of right to privacy raised by Attorney General amidst hearing on some 20 cases challenging it.
Subsequent to the verdict of 9-Judge Bench, another bench will decide the constitutionality UID/Aadhaar and the passage of Aadhaar Act as Money Bill amidst gnawing national security concerns because of involvement of foreign governments and their companies which are eyeing rich assets of personal sensitive information of present and future Indians for all times to come.
(Dr Gopal Krishna is Member, Citizens Forum for Civil Liberties (CFCL) and editor of www.toxicswatch.org )