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Archives for : September2018

Aadhaar Project Wholly Unconstitutional-Landmark Dissent By Justice Chandrachud

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chandrachud
Justice Chandrachud says Aadhaar has serious problems about exclusion and right of the marginalised to benefits cannot be made to depend on authentication of Aadhaar.

The Aadhaar Act could not have been passed as Money Bill as it amounts to a fraud on the Constitution and is liable to be struck down, Supreme Court Justice D Y Chandrachudsaid Wednesday.

Justice Chandrachud, who was part of the five-judge Constitution bench headed by Chief Justice Dipak Misra, wrote a separate judgement saying he had expressed some views different from that of the verdict pronounced by Justice A K Sikri.

Bypassing the Rajya Sabha to pass the Aadhaar Act amounted to subterfuge and the law was liable to be struck down as being violative of Article 110 of the Constitution, he ruled.

Article 110 has specific grounds for Money Bill and the Aadhaar law went beyond this, Justice Chandrachud said, adding that in the current form, the Act cannot be held to be constitutional.

He observed that the enactment of the Act does not save the Centre’s Aadhaar scheme.

Noting that mobile phone has become an important feature of life and its seeding with Aadhaar posed a grave threat to privacy, liberty, autonomy, he favoured deletion of consumers’ Aadhaar data by the mobile service providers.

Maintaining that the Prevention of Money Laundering Act Rules proceeded on assumption that every bank account holder is a money launderer, he said the assumption that every individual who opens a bank account is a potential terrorist or a launderer is “draconian”, he said.

Justice Chandrachud also said collection of data may lead to individual profiling of citizens.

He said the Aadhaar programme violated informational privacy, self-determination and data protection. It has been admitted by UIDAI that it stores vital data which is violative of right to privacy, he added.

This data was vulnerable to be misused by third party and private vendors, and that too, without the consent of an individual, Justice Chandrachud maintained and said the Aadhaar project has failed to remedy the flaws in its design, leading to exclusion.

Allowing private players to use Aadhaar will lead to profiling, which could be used to ascertain the political views of citizens, the judge, who pronounced his separate verdict, said.

He also held that denial of social welfare measures was violation of fundamental rights of citizens.

There is no institutional responsibility of the UIDAI to protect the data of citizens, he said, adding that there was absence of a regulatory mechanism to provide robust data protection.

However, he said it was now impossible to live in India without Aadhaar but it was violative of Article 14.

If Aadhaar is seeded with every database, then there is chance of infringement of right to privacy, he said.

Justice Chandrachud said while Parliament possesses the right to make a law, the absence of protection leads to violation of various rights.

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Bihar -Video Of Woman Paraded Naked Fake RSS-Dalit Christian Spin Goes Viral

A horrific video of a mob parading a woman naked in Bihar is shared with a false claim that RSS youth attacked a Dalit Christian woman.

 

A disturbing video showing a heinous assault by a mob strip and parade a woman naked in Bihar’s Bhojpur district is being shared on WhatsAppp and social media with the false claim that RSS youth attacked a Dalit Christian woman.

 

The video shows a hapless woman walk naked in full public view while a mob of men and young boys chase her jeering, kicking and slapping her from time to time while recording the shameful act on their mobile phones.

 

While the video is true the context being ascribed to it is false with a sinister communal spin that members of the Rashtriya Swayamsevak Sangh (RSS) were involved.

 

BOOM has decided not to embed the video in the story on account of the disturbing nature of content and out of respect for the woman’s privacy.

 

The incident depicted in the video happened on August 20, 2018 and was triggered by the death of a 19-year old boy Bimlesh Sao, whose body was found on a railway track at Bihiya town, some 25 km from Ara, district headquarters of Bhojpur, according to The Hindu. Some news reports refer to the boy as Vimalesh Sah.

 

A mob from the deceased’s village in Damodarpur took to vandalizing and burning local shops following his death. They alleged that the youth was strangled and later thrown on the railway tracks as a cover-up. The mob also alleged that a few houses near the railway tracks were involved in prostitution and alleged that locals living there were involved in the boy’s death as he reportedly had given information on a sex racket to the police.

 

Taking the law into their own hands, the irate mob vandalized and set on fire the houses near the railway tracks. They then dragged a woman living there out on to the street, assaulted, disrobed and paraded her.

 

The identity of the woman in the video is not known. Her current condition is not known though news reports at the time said she was taken to a hospital and was under police protection.

 

15 people who were a part of the mob were arrested after police identified them from video footage, news reports said.

 

Eight police personnel, including the Bihiya police station in-charge, were suspended for dereliction of duty, the Indian Express reported.

 

Bhojpur Superintendent of Police Awkash Kumar was not immediately reachable when contacted by BOOM. We will update the story upon receiving a response.

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SC’s Aadhaar verdict –Privacy vs Identity

The long battle over identity versus privacy will likely be settled by India’s top court in it’s decision on the matter

HIGHLIGHTS:
A five-judge Constitution bench headed by CJI Dipak Misra heard over 30 petitions against the Aadhaar Act and the Centre’s defence of the controversial law before reserving their decision in May.
The hearing went on for 38 days making it the second longest after the crucial Keshavananda Bharti case.
The top court was examining the contention that the 12-digit identification number violates the Right to Privacy.

The Supreme Court bench handling the slew of petitions against the controversial Aadhaar programme (UIDAI) will be issuing its final verdict on the matter on 26 September, 2018. The bench is headed by outgoing Chief Justice of India (CJI) Dipak Misra, who recently presided over the bench that partially struck down Section 377 after a very long battle against it.

The union and state governments had made Aadhaar compulsory to avail a series of essential services including opening and accessing bank accounts, passports, cell phone services and so on. The petitioners argued that it cannot be made mandatory and it was open for compromise because of its huge database that was frequently breached.

But what led Aadhaar from being a simple tool to improve the Public Distribution System (PDS) into the de-facto national indentity that has had privacy advocates run pillar to post and all the way to the apex court to have it struck down? Here’s a brief recap of the Aadhaar (Unique Identification Authority of India) issue.

Background
Aadhaar was launched in 2010 by the then PM Manmohan Singh and then Congress President Sonia Gandhi. During the launch, Sonia hailed the project as a part of Rajiv Gandhi’s ‘vision’, adding that the project was aimed at inclusive growth.

The first people to get their Aadhaar cards in the entire country were 1,000 villagers in a tiny place called Tembhali in Maharashtra. The ceremony was conducted with such fanfare that the entire village got a complete makeover for it. The program was introduced in Karnataka on October 8 with the then CM BS Yeddyurappa being the first to enrol for it.

Former UIDAI Chairman Nandan Nilekani

To the former UIDAI chairman Nandan Nilekani, it was more than just a number, it was an ambition: He claimed that in a mere four years, over 600 million people would have an Aadhaar card and that the UIDAI was in talks with the Finance Ministry to make Aadhaar the KYC document of choice for opening village accounts. Nilekani was not unfounded in his claims. In less than five months of the program’s launch, over 16.7 lakh Aadhaar numbers had been generated and nearly half of it came from Karnataka alone. By the time the end of the year rolled around, 10 crore people had enrolled for Aadhaar with 75 lakh of them from Karnataka.

Troubling Times
Trouble began to foment a little over a year after Aadhaar’s introduction when the MHA expressed apprehension that enrollments could be faked due to loopholes in the process.

In 2012, the first signs of Aadhaar becoming mandatory came to light, when three oil companies initiated a pilot project in Mysore to have LPG refills linked to the ID. Then, in 2013, banks began asking for Aadhaar to provide services. In 2013, the 12-digit ID became the ID to link with bank accounts for getting LPG subsidies.

In September 2013, the SC began hearing the first of what would become a series of Aadhaar petitions. The petition was to examine the usefulness of the Aadhaar card.

At the same time, several state governments decided to make Aadhaar compulsory to avail various public services.

Less than two weeks later, the court ruled that a lack of Aadhaar was not grounds to deprive people of any benefit or service. Responding to the verdict, then  Minister of Petroleum and Natural Gas Veerappa Moily said the Aadhaar-linked Direct Benefit Transfer (DBT) scheme for subsidised LPG supply would continue and the government would move the apex court for a ‘correction’ in the order.

In October, the union cabinet cleared the National Identification Authority of India Bill, giving statutory status to the UIDAI. Shortly after, the UIDAI became one in a long line of petitioners before the apex court in favour of the Aadhaar programme.

Months before the Congress government in the Centre would fall, the apex court issued a directive to have any and all instructions that made Aadhaar mandatory to be withdrawn.

After coming into power in 2014, Narendra Modi decided to review the progress of the Aadhaar project and discussed the possibility of using the platform to resume the DBT of subsidised schemes.

The Ministry of Home Affairs made a surprise switch during Modi’s early days as the PM: it went from ‘being concerned‘ about Aadhaar as address proof in telecom to a wholehearted supporter of the programme.

In the coming months, the government mooted making Aadhaar mandatory for various services, including passports (though it backtracked on that shortly after), PAN cards and Jan Dhan accounts, but the apex court was unconvinced. The Centre eventually said that Aadhaar was not mandatory for public services.

The year 2015 saw a lengthy back and forth between the apex court and the Centre on the Aadhaar matter, with the Centre saying that Aadhaar couldn’t be rolled back and the apex court directing the Centre to ensure Aadhaar did not become mandatory and refusing to alter its order and expand the uses of the ID card.

One Aadhaar to rule them all

In March 2016, the government introduced the controversial Aadhaar bill as a money bill in Parliament. Opposition parties accused the government of using the money bill as a tool to bypass the Rajya Sabha, where the BJP did not hold a majority. However, the bill passed in the Lok Sabha, a move that was welcomed by Arvind Panagariya, and although the Congress, which held a majority in the Rajya Sabha, returned the bill with 5 amendments, the BJP refused them and the Bill was deemed passed. Speaking on the matter, Arun Jaitley reiterated that privacy was not an ‘absolute’ right.

In the same year, oil companies began demanding Aadhaar numbers be seeded to bank accounts, threatening to cut off subsidy of customers who did not comply. A day later, the government made Aadhaar mandatory for scholarships and higher education fellowships. Then came eKYC for mobile connections, and PayTM followed.

March and April saw a slew of ‘Aadhaar now mandatory’ tags to various services, including LPG for poor womencrop insuranceIT returns (except in Assam, J&K and Meghalaya), getting a new SIM, vehicle registration, sand purchasestransactions over 50K rupeesdeath certificatespost office deposits and food under the National Nutrition Mission. It truly was one Aadhaar to rule them all, giving birth to the term “voluntarily mandatory”.

The leaks in the pipes

For some time now, Aadhaar has been at the centre of many privacy-related concerns, with advocates citing several leaks of the high-value data as an argument for the lack of safety of the programme. Recently, The Tribune, a newspaper, found itself on the wrong end of the law for publishing a report on a massive Aadhaar leak, something that got the notice of Edward Snowden, who made a strong comment against Aadhaar and the government. Not long after, a French hacker going by the pseudonym Elliot Alderson took to Twitter to describe some glaring holes he found in the mAadhaar app. But no matter what the leaks were or the perceived impact of them, the UIDAI and the government maintained that Aadhaar was safe. The confidence of the government was such that KK Venugopal, India’s Attorney General, claimed in the apex court that the data was safe behind “13 feet high and 5 feet thick walls”, a comment that earned the government much mockery at the time. Taking this one step further, Ajay Bhushan Pandey, UIDAI’s CEO, said that breaking “one bit” of the Aadhaar encryption would take more time than the age of the universe and the fastest supercomputer on Earth (nevermind the fact that the universe is estimated to be nearly 14 billion years old)

Not deterred by the mockery, the TRAI chairman, RS Sharma tweeted his Aadhaar number, inviting anyone who would be so inclined to cause him harm. The result of the ‘challenge‘ was up in the air, but the government did get some ammunition in its side by way of Bill Gates, who claimed Aadhaar did not have any privacy issue and he would move the World Bank to have other countries emulate it.

Legal battles continue

Between the continued denial, confusing statements meant to advocate faith in the programme and FIRs being filed against whistleblowers, privacy activists were not convinced by the way the government and the UIDAI were handling the reports of Aadhaar data leaks. Emboldened by the Supreme Court’s Right to Privacy verdict, they decided to move the court to settle the Aadhaar matter once and for all. While the court was hearing petitions concerning Aadhaar on a case-by-case basis for a while, it was in the Fall of 2017 that the apex court agreed to hear a plea on thevalidity of the Aadhaar Act and set up a 5-judge bench to hear all petitions on the programme.

One of the first things the apex court did was have the deadline for linking Aadhaar with various schemes to March 31, 2018. Soon after, the UIDAI asked all banks to expedite linking of Aadhaarto bank accounts but said it was in line with the order the SC gave.

As 2018 rolled around, all eyes turned to the apex court as it was to give its verdict on two major matters in the country: Babri Masjid and Aadhaar. Not long after resuming operations, the apex court pulled up the UP government over Aadhaar for homeless people, asking them if the people did not exist for the government. All this, as the UIDAI introduced tools like facial ID and virtual ID as ‘shields’ to protect user data.

During the legal battle around Aadhaar, the petitioners against it relied on arguments surrounding people being forced to part with personal data without any guarantee of safeguards to get an Aadhaar card, an argument that did not hold much weight with the apex court.

The Supreme Court of India

The apex court held that there was a need to balance an individual’s privacy and the State’s responsibility and that the Aadhaar Act could not be declared unconstitutional because of citizens being denied services for want of the ID card. All the while, the Centre maintained that it would not deny people their due if they lacked an Aadhaar.

In March, the apex court indefinitely delayed the last date for linking Aadhaar to services, until the bench handling the petitions delivers its verdict.

Continuing its arguments, the Centre quoted Rajiv Gandhi’s statement that only 15 paise of each rupee spent for the people actually reaches them to defend Aadhaar.

In March, the apex court expressed concern about bringing people “face to face” with authorities through Aadhaar, saying that the State should reach them to accord the benefits of welfare schemes. Later, the apex court and the Centre had a strong exchange in regards to the Supreme Court order of mandatory verification of SIMs and how the Centre used it as a tool to make Aadhaar mandatory for the task. Finally, in May, the apex court decided to reserve its verdict on the Aadhaar matter.

https://www.deccanherald.com/national/aadhaar-act-verdict-history-693614.html

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Mumbai – Gay blood donors to be asked about sex life

Mumbai:

A new and more exhaustive blood donor screening questionnaire will now require male donors to answer questions about their sexual behaviour and whether they have multiple partners. While a ban on gay men donating blood has existed in India for decades, this is the first time that the form spells out these questions in black and white.

Blood banks in the city recently received the updated format from the state arm of the National Blood Transfusion Council that, in October 2017, had revised its guidelines pertaining to selection of blood donors. The guidelines reiterate that gay and bisexual men, transgenders and female sex workers can never donate blood as they have a higher risk of contracting HIV and Hepatitis B and C. The ban also applies to individuals suffering from chronic illnesses such as cancer, organ failure, allergies and respiratory ailments.

Staffers at the blood banks said the new questionnaire, designed on the lines of developed nations, has put them in a spot. The earlier format cursorily asked whether the donor had a reason to believe he or she may be infected by hepatitis, malaria, HIV or Aids, or any venereal disease. The new one mandates blood collectors to ask if the donor has “multiple sex partners or engaged in male to male sexual activity”.

SC verdict has no role here, says NACO official

Detailed donor profiling will not be a cakewalk though, say stakeholders. “It is going to be tricky for us, but it’s also essential to keep such patient-history forms as truthful and scientific as possible. Such questions are asked in most developed countries,” a blood transfusion officer told TOI. An estimated 200 people in Maharashtra get HIV every year through the transmission route, though that number has steadily declined. Another staffer of a public blood bank said with the new Supreme Court order decriminalizing homosexuality, it is possible that more men could reveal their relationship status.

Dr Shobini Rajan, in charge of blood safety at National Aids Control Organisation (NACO), said the new questionnaire merely intends to strengthen pre-donation screening as blood units are subjected to tests only after collection.

“Effectively, we have just reviewed the document and changed the wordings keeping in line with the Drugs and Cosmetics Act. The Act is clear that donors cannot be at a high risk of contracting infections and donate blood too,” she said, adding that the Supreme Court verdict had no role to play here. “That’s a change in law. We have to see if it brings about any behavioural change,” she said.

Ashok Row Kavi of Humsafar Trust, though, said there are issues of confidentiality that need to be addressed better. “Are gay men simply supposed to give away such intimate details in a public blood camp? While such questions are necessary for screening, they also have to create an environment where a person feels comfortable to share,” he said, adding that banks much seek the help of gay community counsellors.

Kavi further said that world over the debate has long shifted from permanently prohibiting gay men from donating blood to 12-month exclusions, where they are prohibited for 12 months after sexual activity. “It’s time we begin such discussions here,” he said

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