Demanding Aadhaar to provide govt services is contempt of court: UIDAI petitioner

Justice Puttaswamy, who filed the PIL against UIDAI in Supreme Court, says that Aadhaar card needs to be converted in to a Citizenship Card like in the USA, to keep a check on illegal migrants.

Over 68 lakh people out of total 96 lakh have already enrolled for Aadhaar card in Bengaluru. Most are waiting for the Direct Benefit Transfer scheme to roll out, and for the LPG subsidy to come to the bank accounts mapped.

While everyone was under the impression that Aadhaar card is mandatory for all government subsidies and services, a Supreme Court interim order issued on September 23, 2013, ruled that Aadhaar card cannot be made mandatory, it has to be voluntary.

Retired justice Puttaswamy, the man behind the PIL filed in Supreme Court against UIDAI. Pic: Bosky Khanna

Justice Puttaswamy, who has filed the PIL in the Supreme Court, is a patient of Asthma and Diabetes. He hears people loud and clear with the help of a hearing aid and reads every newspaper and magazine in detail with the help of a magnifying glass.
Though he has filed the petition against Union of India through Principal Secretary, Planning Commission of Government of India and Unique Identification Authority of India (UIDAI), he has never physically been to the Supreme Court for this purpose. He is being represented by Justice Mandagadde Rama Jois (who is also a Rajya Sabha member) and senior Supreme Court advocate Anil B Divan. The advocates on record representing the case in Supreme Court are Govind Goyal and Ankit Goyal.

This was in response to the Public Interest Litigation filed by a Bangalore-based retired Justice K S Puttaswamy in the Supreme Court. The order has shaken the government’s plans and has resulted in chaos and confusion among citizens.

Citizen Matters caught up with Puttaswamy, to understand the concerns raised by him on Aadhaar card. 88-year-old justice Puttaswamy is young at heart and spirit. He says that collecting biometric details for issuing the card which merely states that one is a resident of India is invasion of privacy under Article 21, of the Indian Constitution. Here are the excerpts from the interview.

Why did you file the PIL in the Supreme Court against UIDAI? Is there any instance or reason which led you to do so?

There are a few contentions which led me to file the PIL. There is no parliamentary approval for UIDAI. As a matter of fact, a bill – National Identification Authority of India bill, 2010 – was brought before the parliament. It was referred to the Select Committee (which consists of 30 members including lawyers, IAS officers, ministers and representatives of every political party). These 30 members examined the bill in detail and rejected it saying that it has serious flaws, including invasion of privacy. The committee said that the bill was constitutionally invalid. Normally they should have brought out a fresh bill, by removing the flaws before issuing the Unique Identification Cards (UIC). But they did not do so. Instead, the central government very curiously issued an Executive Order for issue of UIC.

One more objection is that private agencies are collecting all biometric data required.

You filed the PIL in December 2012, but UIDAI started enrolling people much ahead of it. Why was the delay?

I learned about the Select Committee rejection from Rama Jois, who is a good friend of mine. I, then decided to approach the Supreme Court under Article 32 of the Indian Constitution. The article guarantees an individual to approach the Supreme Court directly for infraction of fundamental rights. The individual can approach the court through a petition.

Click here to read the summary of Parliamentary Committee report on Aadhaar, compiled by PRS India.

Why was no objection raised in the early stages itself ?

I raised my objections when I got to know of the Select Committee meeting and the rejection. In fact apart from me, there were other cases already filed in the Madras High Court and the Mumbai High Court. So around 20 days before my case was to come up for hearing in the Supreme Court (on September 23, 2013), the additional solicitor general Nagesh Rao, heard the cases, consolidated them and put them on to the Supreme Court. So people have been fighting and have voiced out before me too.

What are the loopholes in the government’s bill?

The biggest loophole is that private agencies have been given the task of collecting personal details, fingerprints and iris. Another point is that, this is not a card which proves that I am a citizen of India, but it merely says that I am a resident of India. It is a residential card. In USA, they have a Citizenship Card, and the data is collected by the government and issued by the government.

But Passport Seva Kendras are also being operated by private firms. In Bangalore, a tech firm runs the front-end process of collecting, checking and processing forms at the PSKs. The forms have a lot of personal information of citizens. Is that not a privacy worry?

I am not aware of private companies collecting details for the Passport Authority. But if they are doing, it is very bad. I feel very sorry for the government and the department.

What are the concerns you have raised in the PIL?

The grounds which I have urged are-

    • The executive orders should not have been made, when the Select Committee in its wisdom has rejected the bill. They should have made a fresh bill and sent it to the Parliament for approval again.
    • It invades my right to privacy, which is guaranteed to me under Article 21, which gives me the right to lead a dignified life.
    • They want to issue the card even to illegal immigrants. Every second resident in Guwahati is an illegal immigrant. There are many such in Kolkata and also in Sirsi. These are all refugees from Bangladesh and other neighbouring nations taking refuge here. So one can only imagine, how many could be in Bangalore, Delhi and other places.

Unfortunately, these are the vote banks of political parties. Thus the government seems to be hurriedly pressing for it.

What does the interim SC order say? person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily, it may be checked whether that person is entitled to it under the law and it should not be given to any illegal immigrant.”

Why do you think it is an invasion of privacy? Fingerprints and iris details are also nowadays being collected by the RTO for issuing driving licence. One also has to give his fingerprints while registering a property.

I am not aware of the driving licence. When I got my driving licence, all I had to do was to pass the test and give my residential address. In my opinion, this is sufficient. In the case of property registration, nobody has ever objected to it. This has been going on since the British Raj. Further it is backed by the Indian Stamp Act and the Registration Act. It is regulated.

But the UIDAI is neither regulated nor backed by any bill. There was also an attempt to bring in a law, when the UIDAI was to start operations, but it was not accepted by the select committee headed by Yashwant Sinha.  

Is your main objection – the way in which Aadhaar is being implemented, or do you see inherent flaws in the UID provisions themselves?

It is both. It is the public money which is being wasted and many voices of people objecting to this have also been ignored. The scheme is being implemented without any analysis.

You have also questioned the safety of data, so does this mean that data is presently being leaked or misused or not handled correctly by UIDAI? Are there any cases which you can quote on this?

I am worried about the safety of Indians. Any data can be stolen with the help of advanced technology. The data collected are all important documents. Private agencies want to make profits quickly, so if they want they can sell the data.

Nandan Nilekani, the chairman of UIDAI, is very professional man and has sound knowledge in the field of technology, but does he know the legal aspects?

Are not other government document schemes such as passport, ration card etc., equally vulnerable to theft of data, loss of privacy etc? Why is Aadhaar alone riskier?

Because, it is being done by private agencies. If it is done by the government agencies, where the staff is well-trained, well-equipped and legally backed, it is fine.

Private operators are contracted to the government under legal terms. If they violate privacy, government can act against them. If the entire work is done by government staff themselves like you say, why do you think they are incorruptible? What if they sell out data for money?  

Private operators are bad always; there is always a possibility of data being leaked. The present government also is not trustworthy. There is no legal or government backing to Aadhaar. Today anyone can get an Aadhaar card, whether Indian or not.

You know the status of government record-keeping, especially when handling citizen data entry like voter cards, ration cards etc. Everything from names to spellings to age, etc. is entered wrong. There are people in Bangalore’s voter rolls who are 4000+ years old. Will you trust data entry by the  government data entry staff for a Citizenship Card project?

There are errors everywhere. Sometimes man made or some times printing errors. This 4000+ age which you are speaking about is a printing error.

A Citizenship Card is a simple card and is regulated by the Citizenship Act. It does not have just executive orders, like Aadhaar card. Errors can happen here also. But since it is backed by an act, it is trustworthy, like the Voters ID card, Ration Card and so on.

One of the reasons Aadhaar was originally promised was to cutback on massive duplication of cards issued for benefits – like ration cards, BPL cards, Antyodaya cards etc.. If there is one unique non-replicable ID for a citizen, then that person cannot masquerade and get multiple benefit cards. Is the systematic weeding out of beneficiary duplication not a good thing?

Yes, that was the main idea – to have just one card for everything, instead of multiple cards. We have to wait and watch now, what will be the final outcome. The SC case hearing is on October 22, 2013. Let us wait and watch as to what happens.

Will you support Aadhaar if there are any changes made? If so, what changes do you expect?

If the flaws pointed by the Select Committee are removed and a proper Citizenship Card is issued, as per Parliament orders, then it is ok.

The SC has passed only an interim order, so is it possible that the stand of the SC will remain permanent? Are there chances of the SC overturning its decision, when passing the final judgment?

I cannot say of the Supreme Court rejecting the petition, but most likely it seems that they will not. The Supreme Court does not entertain all PILs, they go by the genuine ones as there are many instances where PILs are filed out of political interest.

The Supreme Court will not be guided by political things. They will go by the validity of the executive order and from the constitutional point of view.

An interim order is as much as a final order. So presently all these government schemes cannot be imposed upon people. And if it is done, it is contempt of court.

In the interim order, the SC rules that UID cannot be made mandatory for essential services. What are these essential services?

The interim order does not mention any names of schemes. But under this, no one can insist of Aadhaar for any government schemes like ration card, bank account, cash transfer, issue of LPG subsidies and so on. It cannot be issued to immigrants too.

So now, what order do you expect the Supreme Court to pass, if the PIL is won? Any chance of all these schemes being cancelled or becoming null and void?

As the petitioner, I expect the order to be in my favour. We have sought for quashing the executive order. So if Supreme Court quashes it, the Aadhaar becomes a useless card, because the very foundation of the Aadhaar card is the executive order. As per the interim orders too, all these schemes stand cancelled.

What will happen if the bill is passed in the parliament, before the final order of the SC?

I am confident that the Parliament will not approve the bill. It cannot or rather will not compel citizens to part with their fingerprints and iris data. If the Parliament had agreed upon it and then cards were being issued, I would have then challenged the act in the Supreme Court.

Even if this particular ruling stays, how much of a victory is it for the anti-UID activists? For example, what if banks demand UID as part of KYC or interest credits tomorrow?

If,  after the interim orders or the final order, any one demands the Aadhaar card, a complaint can be made against that person. The Supreme Court clearly says that it is voluntary for people to have an Aadhaar card. It cannot be implemented or compelled upon people.

Do any of your family members have an Aadhaar card?

No. None of my family members- wife, two sons and two daughters have an Aadhaar card.

Can action by civil society groups/legalists actually lead to nullification/abandonment of the whole scheme? But is that even desirable, given the huge resources spent on it?

The government has spent over Rs 50,000 crore for the issue of Aadhaar cards to citizens, which is not an identity proof. A lot of time and energy of people have also been spent on this. That is one of the reasons why we have appealed to the court to quash it.

In a nutshell, given all that has been done till now, what is the best possible future scenario for Aadhaar that you propose, and how likely is it?

In my view, with changes in the Bill, the Aadhaar card can be converted into a Citizenship Card. The executive order of the Parliament can change and the government may also venture into issuing of Citizenship Card. But if Aadhaar is quashed, then the card which people have will become another waste paper and the data which is with the private agencies and the UIDAI is a great matter of worry.

How can the government make the most of the data collected from over 50 crore Indians? What do you suggest?

The government can use all this data to check how many illegal immigrants are there in India and send them back. There are many who speak Arabic, Bangla (not Bengali) and Islamic Urdu. My hunch is that there are over 4-5 crore illegal immigrants in India and Bangalore houses around a lakh. Their prime source of money is from Arab and Gulf countries. Some could also be terrorists.

If a concerted effort is made, if there is an honest, hard working, dedicated, sincere and concerned official or government, a proper database of illegal immigrants is easy to prepare.

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