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New petition in SC challenges linking #Aadhaar with bank account and phones

Laxmi Prasanna| TNN | 

THIRUVANANTHAPURAM: A new writ petition has been filed in the Supreme Court challenging the linking of Aadhaar with one’s bank account to mobile phones. The writ filed on behalf of noted gender activist and writer Dr. Kalyani Menon Sen is expected to be heard after Diwali holidays. This is the recent writ after a spate of petitions led by retired Justice K. S. Puttaswamy.

“The current writ petition numbered as WP [C] No. 1002/2017 is filed in public interest under Article 32 of the Indian Constitution to raise issues which endanger Fundamental Rights of Indian citizens, protected under Articles 14, 19 and 21 of the Constitution. It is filed on behalf of Dr Kalyani Menon Sen and is likely to be heard by the Supreme Court after Diwali holidays,” Senior counsel Vipin Nair told TOI . This petition challenges Rule 2(b) of the Prevention of Money-laundering (Maintenance of Records) Second Amendment Rules, 2017 (Impugned provision), which seeks to amend Rule 9 of the Prevention of Money-laundering (Maintenance of Records) Rules, 2005, issued under the Prevention of Money-laundering (PMLA) Act 2005, he said.

By virtue of this Impugned Provision, submission of Aadhaar Number has been made mandatory for individual clients, companies, partnership firms and trusts for opening bank accounts, maintaining existing bank accounts, making any financial transactions of and above Rs. 50,000; and crediting foreign remittance into ‘small accounts’. Existing bank account holders have been directed to furnish Aadhaar numbers before Dec 31 this year. Non-compliance with this provision will render the concerned bank accounts in-operational indefinitely, subject to submission of the Aadhaar Number and Permanent Account Number (PAN), he said.

The petition further seeks to challenge the Circular issued on March 23 this year by the Telecommunication department wherein it has been made mandatory for all mobile phone holders to link their mobile phone numbers with Aadhaar.

This petition appeals to the court to issue an appropriate order to declare that the impugned circular issued on March 23 this year is null and void and totally unconstitutional as it violates the fundamental rights of the Indian constitution. It also seeks the court to issue an order declaring that based on such a provision, the mobile phones of subscribers will not be made in-operational and future applicants will not be forced to submit their Aadhar numbers. It also pleads before the court to seek clarification from such companies or respondents who enforce such rules even when the program under Aadhaar Act is entirely voluntary. It also seek to issue an order to ensure that biometric, fingerprints and iris scans are the personal property of the citizens and not that of the state or some company infringing the privacy of the individual.

https://timesofindia.indiatimes.com/india/new-petition-in-apex-court-challenges-linking-aadhaar-with-bank-account-and-phones/articleshow/61145283.cms

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Chandigarh – Abortion services denied if you do not have Aadhaar #Vaw

The woman could not undergo an ultra sonography (USG) as she could not furnish her Aadhaar card.

The linking of Aadhaar to seek abortion services poses risk of life to the life of a woman, doctors at Post Graduate Institute of Medical Education and Research (PGIMER) at Chandigarh have stated. According to the latest paper published in British Medical Journal (BMJ), a 28-year-old housemaid was forced to seek services from an unqualified quack after being turned away by the government hospital at Chandigarh, because she did not have an Aadhaar card.

After having not menstruated for two-and-a-half months, she realised she was pregnant and visited a government dispensary. Weighing 45 kilos, the woman already had three children.

The woman could not undergo an ultra sonography (USG) as she could not furnish her Aadhaar card. She asked the government doctor to provide her with an oral abortion drug, but she was refused that without a USG. She was then directed to a private diagnostic centre for a USG but it was too expensive. One can get an abortion in a private centre without furnishing Aadhaar card. But, she needed the consent of her husband who would not approve. “A week later, she came back to the clinic where I was posted, profusely bleeding. Her heart rate and blood pressure had gone awry,” said Dr Sudip Bhattacharya, author of the BMJ paper.

She had visited an unqualified local physician after being refused abortion services at the government hospital. The quack had conducted the abortion very poorly, and she had to undergo hospitalisation and had to be transfused blood to recover.

The housemaid had earlier also had two induced abortions, without the knowledge of the husband, a daily wager who was against abortion and also against using any form of contraception to prevent pregnancy.

The present case, however, represents only the tip of the iceberg, as many such incidents occurring in daily practice remain unnoticed and undocumented.

India’s maternal mortality is 239 deaths of pregnant women per 1,00,000 live births, as compared to those of developed countries that have 12 per 1,00,000 live births. Linking of Aadhaar for seeking abortion services is just adding more woes to a poor woman’s plight, the BMJ paper argues.

Bureaucratic procedures like this act as impediments for a woman to access safe abortion services, it says.

“Our patient also initially sought safe abortion services from a government hospital, but was denied because of bureaucratic restrictions, including the requirement for proof of identity and her husband’s signature. on certain proforma before she could even be registered as a patient. This case demonstrates how as far as poor people are concerned, the approach to safe abortion services in India can be described as ‘one step forward and two steps backward’,” Dr Bhattacharya said.

“Paradoxically, the access of underprivileged women to safe abortion services has been reduced in India, despite societal modernisation and technological advances.

There is an urgent need to remove the bureaucratic bottlenecks (procedural barriers) hindering the access of unfortunate women to safe abortion services.”

AT A GLANCE
  • Linking of AADHAR for seeking abortion services is just adding more woes to a poor woman’s plight, the BMJ paper argues.
  • 4.2 crore women with unintended pregnancies undergo induced abortions worldwide
  • 50% procedures are unsafe and 68,000 women are dying of unsafe abortion
  • India’s maternal mortality is 239 deaths of pregnant women per 1,00,000 live births, as compared to those of developed countries that have 12 per 1,00,000 live births.
  • http://www.dnaindia.com/india/report-aadhaar-a-problem-for-women-seeking-abortions-2554206

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India – Read how this man’s ITR, #Aadhaar and PAN card were misused to secure loans

 

Do you file ITR every year? Do you have an Aadhaar card? Do you possess PAN card? If the answers to these questions are yes, then this is one story which you can’t afford to miss.

By:  |
Big fraud. (Photos from PTI and stock pics)

Do you file ITR every year? Do you have an Aadhaar card? Do you possess PAN card? If the answers to these questions are yes, then this is one story which you can’t afford to miss. It is the story of a big fraud activity showcasing deep proof of how our identity-related documents – Income Tax Return, Aadhaar Card and PAN card were misused. Reportedly, one 33-year-old Rajesh Panchal, an officer, became a victim of such a big fraud. Panchal filed an FIR at Navrangpura police station in Gujarat’s Ahmedabad against three persons under IT Act for misusing his documents, according to a report in Ahmedabad Mirror. The report says that by misusing copies of the ITR, Aadhaar and PAN documents, the fraudsters tried to secure loans from various banks in the city in the name of Rajesh Panchal. Panchal’s documents were taken by hacking his email ID and password.

What actually happened?

This big incident of fraudulent activity came to light after an alert banker called up Rajesh Panchal to verify the ITR, Aadhaar and PAN documents. Panchal received a call on Oct 7 from Cosmos bank. The bank wanted to verify his role as guarantor for someone seeking a car loan. Panchal was shocked to know this. Panchal reacted that he did not stand as guarantor for anyone. Later, the bank manager called Panchal for meeting and showed him copies of his Aadhaar card, PAN card and ITRs of two years. A person identified Kaushik Shukla had applied for a car loan and showed Panchal as guarantor.

Not only this, it was nothing less than a huge shock when Panchal got to know that his documents were misused to secure loans from seven other banks too.

Taking up the matter, police registered an FIR against the persons named Mahendra Chopra, Rajeshkumar and Kaushik Shukla, adds the report.

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India wake up – Bank Aadhaar linking: RBI never issued any order, reveals RTI

Even as banks are on an overdrive to push customers to link their Aadhaar numbers to bank accounts on the threat of suspending accounts, the Reserve Bank of India (RBI) has told us that it has never issued any such directions. This was in response to a Right to Information (RTI) Act application filed by me. The RBI’s emphatic RTI response makes it clear that the decision is entirely that of the central government.
The RBI’s response says, “The Government has issued a Gazette Notification GSR 538(E) dated 1 June 2017 regarding Prevention of Money laundering (Maintenance of Records) Second Amendment Rules, 2017, inter-alia, making furnishing of Aadhaar (for those individuals who are eligible to be enrolled for Aadhaar) and permanent number (PAN) mandatory for opening a bank account. It may be noted that Reserve Bank has not yet issued instruction in this regard”.
Responding to a specific query on providing copy of the file along with file notings regarding mandatory linking of Aadhaar number with bank accounts, the Reserve Bank stated it “has not issued any instruction so far regarding mandatory liking of Aadhaar number with bank accounts.”
When explicitly asked if RBI had taken permission from the Supreme Court for mandatory linking of bank accounts with Aadhaar number, especially when the apex court had restricted its usage for six schemes, the Reserve Bank stated that is has not filed any petition before the SC.”
Replies from RBI clearly show that it is the Narendra Modi-led National Democratic Alliance (NDA) government, which is frightening and coercing people into linking bank accounts with Aadhaar, under the pretext of preventing money laundering. This reasoning is quite bizarre because it seems to treat every bank customer as money launderer and criminal involved in money laundering, unless they link their Aadhaar number with bank account.
Experts have questioned the legal validity of this action and even moved the Supreme Court alleging contempt of its orders. The SC has restricted usage of Aadhaar to six schemes, where the government is providing some benefits or subsidy to individuals.
The Gazette Notification (GSR 538(E)) is also in contravention with the orders passed by five-judge Bench of the Supreme Court as well as Aadhaar Act 2016. In its order on 15 October 2015, the apex court had said:
“After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11 August 2015, if we add, apart from the other two Schemes, namely, PDS Scheme and the LPG Distribution Scheme, the Schemes like the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11 August 2015. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23 September 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.”
Earlier, the RBI itself had raised serious concerns on Aadhaar in terms of terror financing and money laundering before reluctantly agreeing to the use of the UID in 2011.
The Gazette Notification issued by Department of Revenue under the Ministry of Finance, for mandatory linking of bank accounts and Aadhaar number is in contravention of the Aadhaar Act. Especially, Section 7 of the Aadhaar Act states furnishing of Aadhaar to establish identity for receipt of subsidy, benefit or service for which expenditure is incurred from Consolidated Fund of India.
An individual bank customer, in most cases, uses own money to open or operate the account and not from the Consolidated Fund of India. Also there are a large number of taxpayers, who are not even eligible to receive any subsidy or benefits from any Central Ministry or State Government. Yet, they too are forced to link their self-financed bank account with Aadhaar number.
One circular (No 23111/Gen/2017/Legal-UIDAI dated 15 September 2016) issued by Ajay Bhushan Pandey, Chief Executive of UIDAI about Section 7 says the Central Ministries or State Governments, who wants to use Aadhaar should issue a notification stating the service, benefits or subsidies from the Consolidated Fund of India, which require the beneficiary’s Aadhaar authentication or furnishing proof of Aadhaar. (See image below).
Linking a bank account with an Aadhaar number has no advantage either to the bank or the customer. This is because the customer’s PAN number, which has been issued by the Income Tax Department, is already linked to majority bank accounts. The PAN number actually provides much more information than the Aadhaar number and is linked with all financial instruments of the banks’ customers.
In addition, banks are mandated to strictly follow know-your-customer (KYC) procedure for all its customers. For KYC, the RBI considers passport, driving licence, PAN card, Voter’s ID card issued by the Election Commission of India, job card issued by NREGA duly signed by an officer of the State Government, and letter issued by the Unique Identification Authority of India (UIDAI) containing details of name, address and Aadhaar number as six officially valid documents (OVDs). Explaining the OVDs, RBI says, customers, at their option, can submit one of the six OVDs for proof of identity and proof of address.
What is more serious in this mandatory linkage business is the Government thinking and treatment to every bank customer as money launderer without Aadhaar. That too when the Government machinery has several tools at their disposable to identify any bank account that is used for money laundering purpose.
One such tool used by the Income Tax Department is procuring statement of financial transaction or reportable account (FTRA), previously called as Annual Information Return (AIR). Under FTRA, banks had to furnish information on cash deposits or cash withdrawals (including through bearer’s cheque) aggregating to Rs50,000 or more in a financial year, in or from one or more current account of a person. Additionally, post offices, NBFCs, companies, mutual funds, registrars or sub-registrars, Regional Transport Officers (RTOs), District Collectors and stock exchanges also have to submit high value transactions to the I-T Department.
If the government has all tools and capability to identity money laundering taking place in bank accounts, why then it is forcing each and every account holder to link Aadhaar, which is illegal as it contravenes the Supreme Court orders.
One Dr Kalyani Menon Sen had already filed a petition in the Supreme Court against mandatory linking of Aadhaar with bank accounts and mobile numbers, says a report from The Hindu.
The petition challenges Rule 2(b) of the Prevention of Money-laundering (Maintenance of Records) Second Amendment Rules, 2017 for mandatory submission of Aadhaar number for individual clients, companies, partnership firms and trusts for opening of bank accounts, maintaining existing bank accounts, making financial transactions of and above Rs50,000 and crediting foreign remittance into ‘small accounts’.
The petition says the Government’s move to link bank accounts and mobile numbers with Aadhaar number violates fundamental Right to Privacy and equates citizens, including the elderly, women and students, with money launders.
The apex court is scheduled to hear several linked cases on Aadhaar in November. Hope it considers this forceful linking of bank account with Aadhaar number as well.
http://www.moneylife.in/article/bank-aadhaar-linking-rbi-never-issued-any-order-reveals-rti/51926.html

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India – #Aadhaar Act contravenes right to life and personal liberty

Aadhaar-related schemes and the Aadhaar Act exist on the assumption that Right to Privacy is not a Fundamental Right. The SC’s verdict has totally demolished this flawed assumption, says Dr Gopal Krishna.

 

Illustration: Uttam Ghosh/Rediff.com.

Thomas Jefferson, the third President of the United States, had written in 1787 that ‘if once people become inattentive to the public affairs, you and I, Congress and assemblies, judges and governors shall become wolves’.

In the concluding paragraph of his 122-page-long order as part of the landmark verdict of the nine-judge Constitution Bench of the Supreme on Right to Privacy, Justice R F Nariman wrote, ‘This reference is answered by stating that the inalienable Fundamental Right to Privacy resides in Article 21 and other fundamental freedoms contained in Part III of the Constitution of India’.

In the opening paragraph of his order, Justice Nariman states, ‘A three-judge bench of this court was dealing with a scheme propounded by the government of India popularly known as the Aadhaar card scheme. Under the said scheme, the government of India collects and compiles both demographic and biometric data of the residents of this country to be used for various purposes.

‘One of the grounds of attack on the said scheme is that the very collection of such data is violative of the ‘Right to Privacy’. Aadhaar scheme refers to the 21st century version of Panopticon called Central Identities Data Repository of Unique Identification (UID)/Aadhaar numbers which is an automatic identification and surveillance project.’

Justice Nariman recalled the decision in the Peter Semayne v Richard Gresham (1604) in the United Kingdom to underline that ‘every man’s home is his castle and fortress for his defence against injury and violence, as well as for his repose’.



His cited decision of William Pitt, the Elder which reads: ‘The poorest man may in his cottage bid defiance to all the force of the Crown. It may be frail, its roof may shake, the wind may blow through it, the storm may enter, the rain may enter, but the King of England cannot enter, all his force dare not cross the threshold of the ruined tenement.’

If they are not allowed by the Constitution to enter even the huts of Indians, how can they or their government be allowed to intrude into their body through biometric identification based on ‘biometric information’, meaning photograph, finger-prints, iris scan, or such other biological attributes’ as per Section 2 (g) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016?

All the concerned ‘individuals clothed with the powers of the State’ are accountable for their acts of omission and commission and in the court of present and future generations in their life time.

Justice Nariman records the argument of Attorney General K K Venugopal wherein he submitted that ‘between the right to life and the right to personal liberty, the former has primacy and any claim to privacy which would destroy or erode this basic foundational right can never be elevated to the status of a Fundamental Right’.

Having done so, he observes, ‘We do not find any conflict between the Right to Life and the Right to Personal Liberty…The Right to Personal Liberty being an extension of the Right to Life.’

Justice Nariman wrote, ‘We see no antipathy whatsoever between the rich and the poor in this context. It seems to us that this argument is made through the prism of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, by which the Aadhaar card is the means to see that various beneficial schemes of the government filter down to persons for whom such schemes are intended.’

He rejects the attorney general’s argument, observing that ‘the Right to Privacy would be found, inter alia, in Article 21 in both ‘life’ and ‘personal liberty’ by rich and poor alike primarily against state action’.

The contentions of the state of Gujarat saying ‘if information is already in the public domain and has been parted with, there is no privacy right’ had also been debunked.

It is quite sad and unbecoming of the state government to have attempted to mislead the court by bringing an outdated test of ‘reasonable expectation of privacy’ from United States Supreme Court.

Justice Nariman’s order notes that this submission draws from the judgment in Katz v United States (1967) and Miller v United States (1976), which are outdated because US Congress enacted Right to Financial Privacy Act, 1978 to neutralise it, nipping an alarming tendency of attaching privacy in relation to property and not to the person.

The Gujarat government failed to inform the court that in Minnesota v Carter (1998), the US Supreme Court found the Katz test ‘notoriously unhelpful test’.

Justice Scalia criticised the application of this test saying, ‘In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz case) is that, unsurprisingly, those ‘actual (subjective) expectation[s] of privacy that society is prepared to recognise as reasonable’, bear an uncanny resemblance to those expectations of privacy that this court considers reasonable.’

‘This self-indulgent test provision does not guarantee some generalised ‘right of privacy’ and leave it to this court to determine which particular manifestations of the value of privacy ‘society is prepared to recognise as ‘reasonable’,’ he said.

Our Supreme Court has referred to criticism of the proposition that if there is voluntary parting of information there is no Right to Privacy in District Registrar & Collector, Hyderabad v Canara Bank (2005) with approval.

Justice Nariman recalls the significance of the dissenting judgment by Justice Louis Brandeis in Olmstead v United States (1928). Justice Brandeis held that ‘in the application of a constitution, our contemplation cannot be only of what has been but of what may be’.

The original Bench is now seized with the CIDR-related petitions and is likely to hear them in the first week of November… The court must step in before the neglected spark of biometric identification burns the house.

‘The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping. Ways may someday be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions,’ Justice Louis Brandeis had said.

His view was held as the correct view of the law in 1967.

Citing James Otis, a late 18th century jurist, Justice Brandeis cautioned against placing ‘the liberty of every man in the hands of every petty officer’ even in the face of much lesser intrusions than wiretapping. Such intrusions are ‘subversive of all the comforts of society’ in the words of Lord Camden, Chief Justice of the King’s Bench in early 18th century.

It emerges that the Right to Privacy which is part of the Right to Life and Liberty cannot be placed in the hands of officers of Unique Identification Authority of India, ministry of electronics and information technology and related ministries. It cannot be contended that the Indian Constitution does not afford protection against such invasions of individual security through CIDR based mass surveillance.

Justice Nariman’s order recalled the seminal judgment of Justice K K Mathew in Gobind v State of Madhya Pradesh (1975) wherein he observed, ‘Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet.’

He added, ‘Of course, privacy primarily concerns the individuals. It therefore relates to and overlaps with the concept of liberty.’

In the context, of CIDR of Aadhaar numbers violation of privacy primarily concerns the personal sensitive information of the whole nation comprising of present and future generation of citizens including present and future soldiers, Presidents, prime ministers, national security advisors, chief ministers, legislators, security officials and judges. Therefore, it is deeply connected with national security.

The attorney general and additional solicitor general, in particular, argued that given the fact that ‘our statutes are replete with a recognition of the Right to Privacy’ there is no need to recognise it as a Fundamental Right.

Additional Solicitor General Tushar Mehta cited ‘provisions of the Right to Information Act, 2005, the Indian Easements Act, 1882, the Indian Penal Code, 1860, the Indian Telegraph Act, 1885, the Bankers’ Books Evidence Act, 1891, the Credit Information Companies (Regulation) Act, 2005, the Public Financial Institutions (Obligation as to Fidelity and Secrecy) Act, 1983, the Payment and Settlement Systems Act, 2007, the Income Tax Act, 1961, the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, the Census Act, 1948, the Collection of Statistics Act, 2008, the Juvenile Justice (Care and Protection of Children) Act, 2015, the Protection of Children from Sexual Offences Act, 2012 and the Information Technology Act, 2000’ to contend that since these statutes already protect the privacy rights of individuals, it is unnecessary to read a Fundamental Right of Privacy into Part III of the Constitution.

Justice Nariman rejected their argument saying, ‘Statutory law can be made and also unmade by a simple parliamentary majority. In short, the ruling party can, at will, do away with any or all of the protections contained in the statutes mentioned hereinabove.

‘Fundamental Rights, on the other hand, are contained in the Constitution so that there would be rights that the citizens of this country may enjoy despite the governments that they may elect.’

The observations of Justice Nariman, Dr Ambekar and Jefferson assume great significance because Aadhaar Act 2016 imposes burdens on present and future generations and makes absolute the right to have Fundamental Rights subject to biometric identification.

He observed, ‘The recognition of such right in the Fundamental Rights chapter of the Constitution is only a recognition that such right exists notwithstanding the shifting sands of majority governments.’

According to him, in the Indian context, a Fundamental Right to Privacy would cover at least three aspects, namely: Privacy that involves the person, ie when there is some invasion by the state of a person’s rights relatable to his physical body, such as the right to move freely; Informational privacy which does not deal with a person’s body but deals with a person’s mind, and therefore, recognises that an individual may have control over the dissemination of material that is personal to him. Unauthorised use of such information may, therefore lead to infringement of this right.’

And, lastly, ‘the privacy of choice, which protects an individual’s autonomy over fundamental personal choices’.

He cites John Stuart Mill’s thesis On Liberty (1859) saying, ‘In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.’

Mill’s cited observation contends that the appropriate region of human liberty comprises, the inward domain of consciousness; demanding liberty of conscience in the most comprehensive sense; liberty of thought and feeling; absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.

Despite citing Mill’s thesis that underlines the existence of individuals’ ‘absolute freedom’ and ‘his independence is, of right, absolute’, Justice Nariman observes, ‘But this is not to say that such a right is absolute.’

He may have to revisit this proposition in the light of the authorities he has cited and his own decisions.

Justice Nariman overruled the majority judgment in Additional District Magistrate, Jabalpur v Shivkant Shukla (1976) — wherein a Constitution Bench of the Supreme Court ‘arrived at the conclusion (by majority) that Article 21 is the sole repository of all rights to life and personal liberty, and, when suspended, takes away those rights altogether’ —  citing previous verdict and Seervai’s Constitutional Law of India.

In the ADM Jabalpur case, the majority comprised of then Chief Justice A N Ray and Justices Hans Raj Beg, M Hameedullah, Y V Chandrachud and P N Bhagwati, while Justice H R Khanna wrote the minority verdict.

Justice Nariman records that ‘the majority opinion was done away with by the Constitution’s 44th Amendment two years after the judgment was delivered’.

‘By that Amendment, Article 359 was amended to state that where a proclamation of emergency is in operation, the President may by order declare that the right to move any court for the enforcement of rights conferred by Part III of the Constitution may remain suspended for the period during which such proclamation is in force, excepting Articles 20 and 21,’ he said.

Taking cognisance of the constitutional amendment, he observes, ‘On this score also, it is clear that the right of privacy is an inalienable human right which inheres in every person by virtue of the fact that he or she is a human being.’

In the ADM Jabalpur case, the majority held that: ‘Liberty is confined and controlled by law, whether common law or statute. It is in the words of (Edmund) Burke a regulated freedom. It is not an abstract or absolute freedom’ incorrectly assuming that Constitution was the sole repository of the right to life and liberty.

Given the fact that this verdict has been overruled, how can it be inferred that the Right to Privacy, as part of Right to Life and Personal Liberty, is not an absolute right?

Mill’s thesis and Justice Nariman’s observations reminds one of what Dr B R Ambedkar had said in his last address to India’s Constituent Assembly on November 25, 1949.

Dr Ambedkar said, “I do not say that Fundamental Rights can never be absolute and the limitations set upon them can never be lifted.”

He recalled the words of Thomas Jefferson, saying, “We may consider each generation as a distinct nation, with a right, by the will of the majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.”

Citing Jefferson, Ambedkar contended that the ‘State cannot make laws and impose burdens on future generations, which they will have no right to alter; in fine, that the earth belongs to the dead and not the living’.

It emerges that the Aadhaar case is deeply linked with the verdict in the ADM Jabalpur case and the Constitution’s 44th Amendment, because the CIDR entails linking Aadhaar number with essential services and citizens’ entitlements, benefits and services, making the right to have rights, including right to life and personal liberty, dependent on biometric data.

As per Section 2(R) of the Aadhaar Act 2016 ‘records of entitlement’ means records of benefits, subsidies or services provided to, or availed by, any individual under any programme.

As per Section 2(f) of the Act ‘benefit’ means any advantage, gift, reward, relief, or payment, in cash or kind, provided to an individual or a group of individuals.

As per its Section 2(w) ‘service’ means any provision, facility, utility or any other assistance provided in any form to an individual or a group of individuals. As per Section 2(x) ‘subsidy’ means any form of aid, support, grant, subvention, or appropriation, in cash or kind, to an individual or a group of individuals.

It emerges that the Right to Privacy which is part of the Right to Life and Liberty cannot be placed in the hands of officers of Unique Identification Authority of India, ministry of electronics and information technology and related ministries.

If these provisions are read with Section 23(2)(g), it is clear that powers and functions of Unique Identification Authority of India and ministry of electronics and information technology includes the power of ‘omitting and deactivating of an Aadhaar number and information relating thereto in such manner as may be specified by regulations’ through subordinate legislation as and when they deem it appropriate.

It means that the Aadhaar Act is worse than the overruled verdict in ADM Jabalpur case because it has empowered the central government to cause civil death of anyone it does not like and has deprived citizens the right to compliant as was done by ADM Jabalpur in pursuance of the Presidential Order dated June 27, 1975 under Article 359(1).

As per Section 47 (1) of the Aadhaar Act, ‘No court shall take cognisance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.’

This takes away the right of the ‘residents’ and citizens to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution.

Aadhaar Act turns every ‘resident’ and citizen of India into guinea pigs in the laboratory of foreign biometric technology companies by empowering the UIDAI for ‘promoting research and development for advancement in biometrics and related areas, including usage of Aadhaar numbers through appropriate mechanisms’.

Against such a backdrop, the observations of Justice Nariman, Dr Ambekar and Jefferson assume great significance because Aadhaar Act 2016 imposes burdens on present and future generations and makes absolute the right to have Fundamental Rights subject to biometric identification.

In fact, Aadhaar-related schemes and the Aadhaar Act exist on the assumption that Right to Privacy is not a Fundamental Right. The court’s verdict has totally demolished this flawed assumption.

Dr Ambekar cites Mill to caution ‘all who are interested in the maintenance of democracy’, not ‘to lay their liberties at the feet of even a great man, or to trust him with powers which enable him to subvert their institutions’.

It is an argument which is relevant because it is evident that gullible citizens are being made to ‘lay their liberties at the feet of’ the owners of a great database of Aadhaar numbers.

The court must step in before the neglected spark of biometric identification burns the house.

In his order Justice Nariman has recorded how the A-G ended up contending that ‘the Right to Privacy cannot be claimed when most of the aspects which are sought to be protected by such right are already in the public domain and the information in question has already been parted with by citizens’, for advancing the argument that collection of personal sensitive information like biometric data for the CIDR is a non-issue.

The order also records the uncivil act of Centre for Civil Society, an NGO, in contending that the Right to Privacy ‘ought not to be elevated in all its aspects to the level of a Fundamental Right’ for posterity.

Notably, Venugopal had represented this NGO in this very case on an earlier occasion before becoming the A-G.

He has also recorded that states of Kerala, Karnataka, West Bengal, Punjab and Puducherry broadly supported the petitioners who were seeking scrapping of Aadhaar because it violates Right to Privacy.

Justice Nariman concludes his order saying, ‘The later judgments of this court recognising privacy as a Fundamental Right do not need to be revisited. 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.’

The original Bench is now seized with the CIDR-related petitions and is likely to hear them in the first week of November. It must be remembered that the first petition against the CIDR project was filed on October 18, 2012, after almost two years of the launch of the project.

Subsequently, over two dozen cases are pending in the Supreme Court seeking scrapping of the Aadhaar Act and the CIDR scheme for the last five years.

Rarely does it happen that public institutions do not pretend to be surprised in situations where ‘Fundamental Rights’ of citizens go to the dogs ‘on account of some ill-conceived’ delay in judgments.

The verdict in the reference case of Right of Privacy in the CIDR matter reveals that our judges have not become wolves because at least some people and few lawyers remain attentive to the public affairs.

This decision follows the footprints of stalwarts like Justice Louis Brandeis, Justice Radhabinod Pal, Justice Fazl Ali, Justice Subba Rao, Justice Jagmohan Lal Sinha and Justice H R Khanna.

Academia and citizenry does not hold similar opinion about those who gave verdicts in Union Carbide Corporation v Union of India and in ADM Jabalpur v Shivkant Shukla cases.

When a list of good and not so good judges will be prepared, their names will feature prominently. Their own questionable verdicts have emerged as an exercise in self-indictment. Post retirement statements of self pity will be of no help.

All the concerned ‘individuals clothed with the powers of the State’ are accountable for their acts of omission and commission and in the court of present and future generations in their life time.

All the judges who adjudicate on issues of life and death remain judges only till the time they deliver their judgment. After their decision, it is they and their verdict which remains under scrutiny. They get the opportunity to adjudicate once but they and their decisions are judged forever.

http://www.rediff.com/news/column/aadhaar-act-contravenes-right-to-life-and-personal-liberty/20171017.htm

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Linking Of Aadhaar To Heartbeat: A Positive Step

 

aadhaar-image

I linked my Aadhaar to my PAN card.
Then I linked my PAN card to my bank account.
Then I linked my Aadhaar to my bank account.
Then I linked my Aadhaar to my tax return.
Then I linked my Aadhaar to my LPG gas connection.
Then I linked my Aadhaar to my mobile phone.
Then the Government issued a decree ordering
that all persons must link their Aadhaar to their heartbeat
within three months or face discontinuation of the heartbeat.
Unfortunately, I was not able to link my Aadhaar to my heartbeat
on the Central Cardio-Monitoring System
due to technical glitches and the monumental pile-up
so my heartbeat was discontinued and I died
on DD/MM/YYYY termination time: 06:04:32.

Now, looking back from heaven or hell or wherever,
I contemplate the 23,482,154 persons who died like me
for failure to comply with the edict
and I scan the voices of well-paid apologists—
TV pundits, newspaper columnists, sociologists—
who claim the Aadhaar-Cardio linkage
was a bold, courageous, totally justified experiment
that will yield many long-term benefits, just like demonetisation,
even though the Aadhaar-Cardio Program did cause some
“inconvenience to the common man”
just like demonetisation which also killed countless people
through job loss, wrecked businesses, shattered lives, cash-starved farms,
lack of food and medicine.
Up here or down here
in heaven or hell or wherever,
there is no Aadhaar
there is no PAN
there is no heartbeat
there is no inconvenience to the common man (or woman)
except the dread of having to go back to join the sheeple.

NOTE: Neither the Indian Government nor UIDAI (Unique Identification Authority of India) has issued a directive requiring each person to link his or her Aadhaar card number with specific bodily functions (circulatory, excretory, pulmonary, reproductive, etc.), to the best of my knowledge. This piece is purely a work of fiction. There is no undue cause for alarm as yet.

FACT: Mobile phone companies in India in recent weeks have been sending menacing, illegitimate text messages to their customers warning them to register their Aadhaar number with the mobile phone company or face deactivation of service. (“As per Government directive, it is mandatory to link Aadhaar with your mobile number. Visit your nearest mobile retail outlet/retailer now.”) A high court or the Supreme Court has yet to decide whether the mobile phone companies can force you to provide them with your fingerprints (“Your mobile service provider insisting on linking Aadhar? It’s illegitimate if not illegal”. India Today, October 5, 2017 (http://indiatoday.intoday.in/story/aadhaar-mobile-service-provider/1/1061878.html) If the Supreme Court approves the telecom companies’ demand, expect long lines outside the mobile phone companies’ retail outlets—lines that may dwarf the lethal crowds gathered outside banks due to Modi’s immoral demonetisation disaster which killed 150 people and probably thousands more.

Walt Gelles, an American writer currently living in India, is the author of Options: The Alternative Cancer Therapy Book (Penguin Random House/Avery) and has published articles at GlobalResearch.ca, OpEdNews, and other websites.

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Jharkhand girl starving to death shows ‘ #Aadhaar savings’ built on gross exclusions

The poor and vulnerable are dismissed as ‘ghosts’ and ‘frauds’ while authentication errors lead to many going hungry.

India has not only slipped three points on the global hunger index, falling behind North Korea and Iraq, it has also started witnessing children being starved to death because their ration cards were not “linked to Aadhaar”. A report by the portal Scroll.in claims that an 11-year-old girl in Jharkhand went without food and died eventually because her family didn’t have Aadhaar-linked ration cards and they were denied food items by the Aadhaar-driven PDS.

This, despite PM Modi and his retinue of ministers and supporters going on and on about “Beti Bachao, Beti Padhao”.

That this denying of food and ration because the cards weren’t connected to Aadhaar is a gross violation of the Right to Life, Food Security Act and Aadhaar’s own “voluntary” nature by law, and the Supreme Court guidelines on the PDS-UID link, goes without saying. However, what’s even more tragic is that this could be foreseen by civil rights activists and commentators, reporting on the “Aadhaar exclusions” months in advance.

Santoshi Kumari, the 11-year-old girl who died of starvation, had gone without food for nearly eight days when she succumbed to it. Her family’s ration card was cancelled because it wasn’t linked to their Aadhaar number, while mid-day meals at her school weren’t available because of Durga Puja holidays, says the report. As a result, Santoshi Kumari hadn’t had a morsel of food for over a week, even though her family was eligible to avail food rations as per the Food Security Act, but was denied rations for six months because their card wasn’t Aadhaar-linked.

As the Centre is hell bent in linking Aadhaar to almost every service, public and private, in India, the gross violations of fundamental rights, and the resultant exclusions have been documented meticulously. In states like Jharkhand and Rajasthan, the poor have been left out of the Aadhaar-driven PDS because of “authentication failures”. Civil rights activists Aruna Roy and Nikhil Dey have repeatedly drawn our attention to the hard facts on the ground – how the poor and the vulnerable are denied rations, work, services, skills training, even pregnancy care because they lack Aadhaar.

aadhaar-pds_101617020358.jpgPhoto: Press Trust of India

The policy framers riding Aadhaar mania treat the poor and marginalised as just 12-digit numbers of the UIDAI, and are least concerned when reports of unpardonable exclusions come forward. As the Jharkhand starvation death demonstrates, “deleting” those without Aadhaar from PDS lists is exactly how exclusions are presided over, with no concern towards the elderly, the infirm, those unwilling to get Aadhaar because of its several deficiencies. This, despite the individuals/families having ration cards/other identity proofs.

Welfare economist Jean Dreze has also been quoted in a number of reports on how “Point of sales” (PoS) machines installed at distribution outs are not able to authenticate the fingerprints of many, especially those daily wagers doing hard physical work and have calloused hands as a result. A large number of National Food Security Act (NFSA) beneficiaries are therefore left out of the welfare network, particularly in Jharkhand’s Ranchi district, because of Aadhaar. Dreze notes that the errors leading to exclusions occur at multiple points – the PoS machine, network connectivity, biometrics, remote servers, or mobile networks.

Not just in states like Jharkhand, even in Delhi Aadhaar-based PDS has seen a rise in exclusions. Though the claims are often of cracking down hard on corruption as well as efficiency, the ground reality is one of huge disruptions in lives of poor and the vulnerable who are cut off mercilessly from availing the benefits they are legally entitled to.

In fact, the government was criticised heavily when it decided to link essential welfare services/PDS/mid-day meals to Aadhaar, and letting children go hungry if they didn’t have UID. A DailyO columnist had written then: “In a country which has the highest number of malnourished children in the world, denying hungry kids the most important (and often the only) meal of the day because they do not have a particular identity card is not only shameful, it’s inhumane, and a recipe for humanitarian disaster.”

“Instead of prioritising children’s health, ensuring that they get nutrition benefits, improving the quality of the meals and implementing safeguards and rules for high quality food, the government is hell bent on taking away the meagre morsel that the children could get under the mid-day meal scheme as part of free schooling under Right to Education,” the article said.

uidai_101617020423.jpgPhoto: Reuters

The lack of empathy pointed out is at the heart of the Jharkhand starvation death of the 11-year-old Santoshi Kumari. However, those at the helm of Aadhaar, particularly Nandan Nilekani, have been boasting about “Aadhaar savings”, claiming about 9 billion US dollars have been “saved” because Aadhaar eliminated “frauds” and “ghosts” in the system.

In fact, a number of think-pieces and analytical reports have dissected the claims made by UIDAI, as well as the World Bank, which has been praising Aadhaar as an “efficient” welfare delivery programme, overlooking the gross negligence, the privacy breaches, the unpardonable exclusions as well as the Aadhaar frauds and commercial exploitation of Aadhaar-related data that have been amply reported by various media outlets.

Despite SC’s orders to the contrary, the Aadhaar juggernaut is on a rampage, trampling India’s poor, marginalised, elderly, the infirm and now the children. How will the UIDAI, which doesn’t even allow individuals and victims of Aadhaar to lodge complaints against it, or the government of Narendra Modi that’s imposing the Aadhaar condition on citizens’ right to life, liberty, food, education, privacy and other fundamental rights, defend itself against this unpardonable crime – starving a girl child to death?

http://www.dailyo.in/politics/aadhaar-jharkhand-welfare-schemes-uidai-pds-girl-child-starvation/story/1/20101.html

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#Aadhaar made compulsory for Ex-Servicemen’s Contributory Health Scheme (ECHS) its illegal-What can you do ?

To

The Managing Director

Ex-Servicemen’s Contributory Health Scheme (ECHS)

Delhi Cantonment

New Delhi-110010

By E-mail to: <[email protected]>;

Subject: Mandatoriness of Aadhaar for ECHS and Contempt of Rule of Law and the orders of the Supreme Court of India

Sir,

1. I am a member of the ECHS, with Membership Reg No.HY0000271, w.e.f 17/09/2004.

2. I have learned from the Officer -in-Charge ECHS Polyclinic, Mysuru, that Veteran ECHS members need to provide their Aadhaar number for their referral to empanelled hospitals / clinics or military hospitals, and that the software for the referral process cannot proceed without insertion of the Aadhaar number. Naturally, this requirement has been incorporated after due orders / circulars / directions from ECHS HQ.

3. I would like to bring to your kind attention that the ECHS system based upon this order denies a Veteran ECHS member of necessary, even perhaps vital, medical attention if he/she does not possess an Aadhaar number. You may kindly appreciate that a simple medical problem can snowball into a life-threatening situation or even death, because of denial of timely medical attention in an appropriate medical facility, for the sole reason that the Veteran ECHS member does not have an Aadhaar number.

4. I am bringing this matter to your very urgent and special notice because the Hon’ble Supreme Court of India has, in its Order dated 23.09.2013, stated that “… no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory.

5. Further, a five-member bench headed by the then Chief Justice of India in its Order dated 15.10.2015, had reiterated all its previous orders. In particular I would draw your kind attention to the fact that the Court stated:

(a) “After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister’s Jan Dhan Yojana (PMJDY) and Employees’ Provident Fund Organisation (EPFO) for the present, it would not dilute the earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015”.

(b) “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from23.09.2013”.

(c) “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”.

6. You may kindly note that if a Veteran ECHS Member suffers deterioration of his health, even perhaps death, due to lack of timely and appropriate medical attention for the sole reason that he/she does not have an Aadhaar number, it will not only bring a bad name to the ECHS but may also attract criminal legal action against the official who issued the order, since it would be in contempt and violation of the orders of the Hon’ble Supreme Court of India concerning Aadhaar enrolment being voluntary and not mandatory.

7. In light of the foregoing, and now that the order of the Hon’ble Supreme Court of India has been brought to your attention, I very urgently request you to immediately rescind the order making Aadhaar number necessary for referral of Veteran ECHS members to empanelled hospitals / clinics or military hospitals, and amend the software in the ECHS Polyclinics accordingly, lest some unfortunate Veteran is affected adversely by the order.

8. I request acknowledgement of receipt of this letter by email to me at <[email protected]>.

Yours faithfully,

Maj Gen S.G.Vombatkere (Retd)

Copies by Email to:

1. The Hon’ble Chief Justice of India, ℅ Chief Justice’s Conference Secretariat, Supreme Court of India, Tilak Marg, New Delhi-110 001. Email: <[email protected]>;

2. Directorate of Indian Army Veterans, c/o AG’s Branch, IHQ of MoD (Army), New Delhi-110010. Email: <[email protected]>; <[email protected]>;

3. Adjutant General, IHQ of MoD (Army), South Block, New Delhi-110011. Email: <[email protected]>;

4. Chief of the Army Staff, South Block, New Delhi-110011. Email: <[email protected]>;

5. Chief of the Naval Staff, South Block, New Delhi-110011. Email: <[email protected]>;

6. Chief of the Air Staff, Vayu Bhavan, New Delhi-110011. Email: <[email protected]>; <[email protected]>;

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Lost in transition: Has linking #Aadhaar to government welfare schemes made it difficult for beneficiaries to avail of aid?

Aadhaar is now compulsory for 87 government welfare schemes. HT reviews how this decision is working on the ground for two of the biggest schemes of this kind

Niha Masih
Hindustan Times
(Ravi Choudhary/HT PHOTO)

What does Anita, a slum dweller in Delhi, have in common with Muniya Devi, a villager in Jharkhand? They subsist on two of the government’s biggest social welfare schemes – the National Food Security Act (NFSA) and the Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA, also known as NREGA) respectively.

But both face exclusion from these rights guaranteed under law because of Aadhaar. Not because they don’t have an Aadhaar card but due to problems stemming from linking it to welfare schemes.

Last year, after the passing of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, the government has made Aadhaar compulsory for at least 87 government welfare schemes – from pensions and scholarships to fertilizer and LPG subsidy.

The main argument is that Aadhaar provides a foolproof mechanism to check fake or ghost beneficiaries, reducing corruption and saving money.

Through ground reports, RTI responses and court documents, HT reviewed the impact of this linkage to the schemes which the Centre spends most on – the NFSA, which provides subsidised ration to poor households and NREGA, which guarantees employment to rural households for at least 100 days a year.

The Missing Link To Getting Food Security

In April 2015, Tosif Khan, a fair price shop owner selling subsidised ration under the NFSA received a sleek Point of Sale machine from the Delhi food and civil supplies department. The government was testing new Aadhaar-enabled biometric machines and Khan’s shop in Chandni Chowk had been selected amongst 42 shops for the pilot project. Through the machines, the beneficiaries would get ration after their biometrics matched with those given for Aadhaar. The government claimed it would automatically weed out ghost or fake beneficiaries.

But Khan’s machine developed a snag and stopped charging about a year later. On September 8, he sent a one-line email to the central district’s assistant commissioner of food department, saying, “Sir, device mein charging nahi ho rahi hai” (Sir, the device is not charging). The reply came the same day. The terse email read: “To hum kya karein” (So what should we do?).

After that Khan went back to using manual entries for providing ration – exactly the opposite of what the pilot project was testing.

THE FACT ON FAKE

It was reported in April that the government had deleted many ‘fake’ NREGA job cards after verifying Aadhaars. An RTI filed by economist Jean Dreze, however, revealed that only four per cent of the job cards that were deleted were fake.

94,09,448
TOTAL NUMBER OF DELETED CARDS

He wasn’t the only one to face problems. Another shop-owner (speaking on the condition of anonymity) who runs a fair price shop near the Delhi airport told HT that lack of cellphone network was a perpetual problem in operating the machine.

In his case, when the machine developed a fault, the government directed him to the manufacturing company. The company in turn told him that their contract was over and hence they were not responsible. He too, then went back to manual entries.

The failure rate of the government pilot was more than 50 per cent – of the 42 shops where the machines were tested, only 18 remained till the end. Yet, the Delhi government is about to roll out mandatory use of machines at all fair price shops from November.

Delhi Food Commissioner, KR Meena dismissed these as standalone examples. He said there was not enough awareness within the department since the pilot was limited. “Last time, our contract with the company was only for a year, so there were maintenance issues with the machines. This time we have a five-year contract with BHEL. They will be required to provide repair work within two hours of any complaint,” he said.

But the Delhi Rozi Roti Adhikar Abhiyan says that unreliable machines point to a bigger problem – people who don’t get ration due to biometric failures or mismatch.

They estimate that in Delhi about 12 per cent of eligible beneficiaries may have been excluded in one year because of biometric failure. But the state government says they have no data on it.

To address the problems posed by the machines tested, the government is banking on more advanced ones. Meena says, “With the new machine, if fingerprint biometrics don’t match, there will be an iris scan mechanism. If even that doesn’t work, then a mobile-based pin system will be used where a one-time password will be sent to the beneficiary’s phone number.”

Slamming this, Anjali Bhardwaj of the Delhi Rozi Roti Adhikar Abhiyan, says reliance on untested technology to curb corruption is misplaced. “The pilot of the Delhi government showed several problems – including network connectivity, biometric failures and without explaining how these issues have been addressed they are scaling it up.”

But exclusion is not caused by machine failures alone. Thirty-year-old Anita, living in a slum in south Delhi has spent three years trying to get ration for her autistic son, Nitin. The nine-year-old child did not have an Aadhaar card when Anita applied.

She is unable to take up a job as Nitin cannot be left alone. The family depends on the erratic income of her husband who works as a labourer and monthly subsidised food grains. Anita made three trips to an Aadhaar enrolment centre before the child could give his biometrics.

“He used to get scared of the machine and run away. But after all that effort when the Aadhaar card came, I was told his name still cannot be added to the ration card as the quota was full,” says Anita as she tries to hold Nitin in her lap. She was also unable to avail disability benefits for Nitin due to lack of Aadhaar.

Several such stories came to light when the Delhi Rozi Roti Adhikar Abhiyan took the government to court in February this year against Aadhaar being made mandatory for ration.

The Delhi High Court in September directed the government to start providing ration to Anita’s children, along with 40 other affected families.

A relieved Anita asks, “Gareeb ka khana ek card ki wajah se lekar sarkar ko kya fayda hua?” (How has the government benefited by taking food from a poor person because of a card?)

(left) (Parwaz Khan/HT PHOTO)

Aadhaar: A Hurdle To Getting Employment?

Muniya Devi, 23, from Bari village, about 90 km away from Ranchi, gave birth to her third child – Lalchand, three months ago. But within a week , she was making a train journey with her husband and children to neighbouring Daltonganj to find work.

While she and her husband broke stones at a construction site for ~200 a day, her eldest son looked after the youngest.They stayed there for two months to earn enough to survive the next few. “There was no other work in the village,” she says quietly. For unlettered and landless families living in remote villages, NREGA work has often been a lifeline. But when that dries up, they must move out.

With Lalchand slung on her tiny waist, she shows me her NREGA job card. According to the manual entry on the card, she last worked in December 2012 under the scheme. But it wasn’t only the lack of work that was the problem. Muniya’s card had been struck off the NREGA list in 2014 and the reason listed was “wants to surrender card”. Muniya stares perplexedly when I tell her. She has no idea when or how that happened. “We are not educated so I don’t know all this,” she mumbles.

James Herenz, of Jharkhand NREGA Watch, alleges that large-scale deletions happened when the state started linking Aadhaar with job cards. “To complete 100 per cent seeding of job cards with Aadhaar, those who didn’t have Aadhaar were simply struck off the list citing various reasons.” Almost two dozen villagers HT met from Bari had their names struck off with no knowledge of it. Total deletions from the village stood at 417. These deletions are important as the Centre has often cited that Aadhaar seeding with NREGA has helped to weed out fake or ghost beneficiaries. But ground reality suggests that many who lost their job cards were eligible for the scheme.

In April 2017, it was reported that the government had deleted over 90 lakh ‘fake’ job cards nationally. Verification involved checking the Aadhaar numbers of beneficiaries. But when economist Jean Dreze filed an RTI with the rural development ministry, only four per cent of the deletions turned out to be fake. Reetika Khera, economics professor at IIT Delhi says, “The focus on Aadhaar-linking in NREGA is a diversionary tactic, ignoring real problems such as difficulty in getting work, delayed wages and low wages.”

For Jharkhand, the RTI numbers show a similar trend. Of the 1.08 lakh deletions, only 2,675 were fake and 13,455 were duplicate. State NREGA commissioner, Siddharth Tripathi admitted that there were problems in the initial seeding exercise. “At that time there was no verification, only collection of Aadhaar data.” To rectify the problems of the first, the state launched a second drive. “Last August, we spent two months linking both Aadhaar and bank accounts to job cards. We helped people who didn’t have them to make new ones. Then, we ran a campaign in every ward to verify these,” says Tripathi.

The new exercise has resulted in deletion of 3.5 lakh cards. However, the department was unable to provide a breakdown of how many of these were fake and how many were deleted for other reasons.

Khera thinks the problem lies elsewhere, “Aadhaar can reduce ‘identity fraud,’ but the government has failed to honestly answer whether identity fraud is the disease that ails welfare schemes. Welfare needs Aadhaar like a fish needs a bicycle.”

http://www.hindustantimes.com/india-news/lost-in-transition-has-linking-aadhaar-to-government-welfare-schemes-made-it-difficult-for-beneficiaries-to-avail-of-aid/story-ds7MGviD19mIwGPUzdH9qM.html

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How #Aadhaar promotes a digital caste system

The linking of biometric UID/Aadhaar number to all public services makes “We, the People of India” worse than slaves, says Dr Gopal Krishna.

The second in a 7-part series.

Illustration: Dominic Xavier/Rediff.com.

While adding some 24-page-long words of concurrence with the opinions of Justices Chelameswar, SA Bobde, Rohinton Fali Nariman and Dr DY Chandrachud in the verdict of  August 24, 2017, on the right to privacy, Justice Abhay Manohar Sapre refers to ‘We, the People of India’ in the Preamble of the Constitution, to the “attack on the legality and correctness of Aadhar scheme” and to the “dignity of the individual”.

The original case pertains to the Central Identities Data Repository of Unique Identity/Aadhaar numbers of Indian residents.

The verdict came as a consequence of a reference made to the Constitution bench to decide the existence of right to privacy as a Fundamental Right.

Justice Sapre observed, “The most important place of pride was given to the People of India by using the expression, We, The People of India, in the beginning of the Preamble. The Constitution was accordingly adopted, enacted and then given to ourselves.”

His pointed reference to the presence of ‘We, the People of India’ assumed great significance if it is read with the definition of ‘resident’ in the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

As per Section 2 (v)  “resident” means an individual who has resided in India for a period or periods amounting in all to 182 days or more in the 12 months immediately preceding the date of application for enrolment.

First in the series: Right to Privacy and the Bhagavad Gita

Notably, the National Identification Authority of India Bill, 2010, which was withdrawn from Rajya Sabha till March 3, 2016 for the introduction of Aadhaar Bill 2016 referred to “We, the People of India” as the ‘resident’ under Section 2(q) as an individual usually residing in a village, rural area, town, ward, demarcated area (demarcated by the Registrar General of Citizen Registration) within a ward in a town or urban area in India.

Interestingly, “We the People” is also the opening phrase of the preamble to the constitution of United States.

In fact this phrase finds place in the constitutions of some 50 countries.

It is “We, the People” who have constituted the Constitution of India.

It emanates from “We, the People” who are parochially being defined by Aadhaar Act as “residents”.

The conclusive assumption about “We” being the first brick of the basic structure cannot be tested or questioned in any court, but Aadhaar Act does the unthinkable by narrowcasting its meaning since September 12, 2016, when the act came into force after more than 100 crore Indians were coerced and enticed to enroll for Aadhaar numbers.

Based on an inquiry into the human condition, renowned psychiatrist Thomas Szasz wrote in The Second Sin that in the animal kingdom, the rule is, eat or be eaten; in the human kingdom, it is define or be defined.

It is clear that “We the People” are being defined in the bill as “residents” in a manner that makes our republic deficit in democracy for some visible and invisible purposes. The legitimacy of this exercise is the subject matter before the court.

The reference made by Justice Sapre to the “attack on legality and correctness of Aadhaar scheme” is reminiscent of the orders of the Punjab and Haryana high court.

In its order dated February 19, 2013, the bench of Chief Justice AK Sikri (currently judge of the Supreme Court), and Justice Rakesh Kumar Jain had noted that the petition against UID/Aadhaar “raises a pure question of law.”

Responding to the direction issued to the Union of India and Union territory of Chandigarh by the 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/Aadhaar was withdrawn.

The HC order dated March 2, 2013, observes, “In this writ petition filed as a public interest litigation, the petitioner has challenged the vires of notification issued by the Union of India for making it compulsory to have UID cards.”

It further observed that “second issue raised in this petition is that vide order dated December 5, 2012, respondent No 3, ie, Deputy Commissioner, UT, Chandigarh has given directions to the Branch In charge Registration-cum-Accountant, office of Registering & Licensing Authority, Chandigarh not to accept any application for registration of vehicle and grant of learner/ regular driving license without UID card” referring to the UID/Aadhaar numbers.

The petition in the Punjab and Haryana high court included the following prayers:

i) Issue a writ in the nature of certiorari to quash executive order dated December 5, 2012, passed by respondent No.3 passed in violation of Motor Vehicles Act, 1988 and Central Motor Vehicle Rules, 1989 vide which UID has been mandatory for the registration of vehicles and grant of learner/ regular driving licence.

ii) A writ in the nature of mandamus directing the Union of India to accept other proofs of identity and address, ie, voter I-card issued by the Election Commission of India, the constitutional body and passport issued by the ministry of foreign affairs, the Government of India and other proofs of address, age prescribed under Rule 4 of Central Motor Vehicles Rules, 1989 for issuance of learning/ regular driving license and for registration of vehicle;

iii) Further it sought direction for the Union territory of Chandigarh and the Union of India not to make mandatory the UID for essential public utility services and accept other documents as proof of identity and address as per the Rules;

The writ petition had emphasised that during the pendency of the petition, executive order dated December 5, 2012, and other similar executive orders vide which UID/Aadhaar have been made compulsory for essential public utility services may kindly be stayed.

In its concluding paragraph the March 2, 2013, order of the high court reads, “Today, short affidavit of M Shayin, IAS, deputy commissioner, UT, Chandigarh is filed stating that the aforesaid instructions have been reviewed and now the insistence of UID card is no longer treated as mandatory.”

It noted in its order that since “this issue is pending before the Supreme Court” it chose not pass any observation on the remaining prayers.

It is evident from this outcome that the moment the court raised the “questions of law” in the matter of UID/Aadhaar scheme, the Union of India realised that its position was not legally defensible and it submitted that “the insistence of UID card is no longer treated as mandatory”.

This case demonstrates that UID/Aadhaar scheme is legally questionable.

Against such a judicial backdrop, Justice Sapre recollected the significance of the Preamble to the Constitution in the UID/Aadhaar case.

“Perusal of the words in the Preamble would go to show that every word used therein was cautiously chosen by the founding fathers and then these words were arranged and accordingly placed in a proper order. Every word incorporated in the Preamble has significance and proper meaning,” observed Sapre.

He noted, “The incorporation of expression Dignity of the individual in the Preamble was aimed essentially to show explicit repudiation of what people of this country had inherited from the past.”

It is clearly a reference to the inhuman caste-related practices which undermined human dignity.

This observation is significant because UID/Aadhaar fixes caste identities through time even after people are dead.

The information held about caste will be fixed to people by the UID/Aadhaar number. Changing an identity will become impossible.

While there are efforts underway for the eradication of the practice of manual scavenging, for rehabilitation of those and then leaving behind the tag of manual scavenger, there can be no justification for making people accept a system that does not allow them to shed their identity and move on.

A number that links up databases of caste identity through convergence with existing databases cannot be good for “repudiation of what people of this country had inherited from the past”.

Jacob Appelbaum, computer security researcher, hacker, activist, and a spokesperson for WikiLeaks, has warned that biometric Aadhaar/UID will create a digital caste system.

He said, “Going by the way it is now being implemented, if you choose not to be part of the system, you will be the modern-day equivalent of an outcast. In theory, you are supposed to have the freedom to choose but in reality, the choice will only be whether to be left out and left behind”.

The promoters of biometric UID/Aadhaar number are promoting digital and biometric caste system and digital and biometric racism.

Notably, Aadhaar Act, 2016 lists breaking into CIDR as an offence but this law criminalises a technological impossibility.

In a bizarre act, it provides that only Unique Identification Authority of India can file a complaint when the data of a resident of India is misused or abused, instead of the victim of abuse.

As per Section 47, “Courts will take cognizance of offences under this act only upon complaint being made by the UIDAI or any officer authorised by it.”

This deprives the victim of a right to file complaint and also undermines the dignity of the individuals although Section 34 of the act states that “Impersonating or attempting to impersonate another person by providing false demographic or biometric information will punishable by imprisonment of up to three years, and/or fine of up to ten thousand rupees.”

Victims cannot file complaint even when someone changes or attempts to change any demographic or biometric information of an Aadhaar number holder by impersonating another person (or attempting to do so), with the intent of i) causing harm or mischief to an Aadhaar number holder, or ii) appropriating the identity of an Aadhaar number holder although it is punishable under Section 35.

Victims of abuse cannot file complaint in cases wherein collection of identity information is done by one not authorised by this act, by way of pretending otherwise despite the fact that the act makes it punishable under Section 36.

Unless authorised by UIDAI or any officer authorised by it, victims cannot file complaint even when there is “Intentional disclosure or dissemination of identity information, to any person not authorised under this act, or in violation of any agreement entered into under this act” under Section 37 although it is punishable.

Unless authorised by the UIDAI — the intentional acts like accessing or securing access to the CIDR; downloading, copying or extracting any data from the CIDR; introducing or causing any virus or other contaminant into the CIDR; damaging or causing damage to the data in the CIDR; disrupting or causing disruption to access to CIDR; causing denial of access to an authorised to the CIDR; revealing information in breach of (D) in Section 28, or Section 29; destruction, deletion or alteration of any files in the CIDR; stealing, destruction, concealment or alteration of any source code used by the UIDAI, will be punishable under Section 38 — victims cannot file a complaint.

Section 39 of the act reads, “Tampering of data in the CIDR or removable storage medium, with the intention to modify or discover information relating to Aadhaar number holder will be punishable”. Thus, it admits that such acts are possible and imminent but the act does not empower the victims of such tampering or removal instead it empowers the UIDAI.

If these provisions made in Aadhaar Act are accepted as the law, the Fundamental Rights guaranteed under the Constitution of India and more particularly the right to liberty under Article 21 would be denuded of vigour and vitality.

It marks the beginning of the end of right to human dignity recognised and promised by the Constitution.

Citizens’ opposition to the CIDR of UID/Aadhaar numbers of Indian residents can be linked to more than a century old world famous Satyagraha of Mahatma Gandhi in order to oppose the identification scheme of the government in South Africa.

On  August 22, 1906, the South African government published a draft Asiatic Law Amendment Ordinance. It  required all Indians in the Transvaal region of South Africa, eight years and above, to report to, a certificate which would then have to be produced upon demand.

The move proposed stiff penalties, including deportation, for Indians who failed to comply with the terms of the ordinance.

Knowing the impact of the ordinance and effective criminalisation of the entire community, Mahatma Gandhi then decided to challenge as it undermined human dignity.

Calling the ordinance a ‘Black Act’ he mobilised around 3,000 Indians in Johannesburg who took an oath not to submit to a degrading and discriminatory piece of legislation.

The UID/Aadhaar case demonstrates how ‘those who forget history are condemned to repeat it’.

The linking of biometric UID/Aadhaar number to all public services is making “We, the People of India” worse than slaves.

This amounts to normalisation of cruelty towards Indian residents, which creates a compelling logic for scrapping this biometric identification exercise.

Now that the Constitution bench has recognised the right to privacy, the original three-judge bench of the Supreme Court which is to pronounce its verdict on UID/Aadhaar should also ponder over following questions:

Will foreign companies like Ernst & Young, Safran, L1 Identities Solution and Accenture that admittedly work with United States security and intelligence agencies who were awarded contracts on  July 30, 2010, for implementation of Aadhaar number protect US national interest or India’s national interest in the aftermath of Patriot Act taking cognisance of disclosures by whistleblower Edward Snowden and Wikileaks?

The manifesto titled 2083: A European Declaration of Independence brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who carried out the heinous attacks on his fellow citizens is actually a unique identity manifesto as well.

This manifesto refers to the word “identity” over 100 times, “unique” over 40 times and “identification” over 10 times. There is reference to “state-issued identity cards”, “converts’ identity cards”, “identification card”, “fingerprints”, “DNA” etc.

Is it not true that only a misanthrope can approve of it?

The deluge of advertising and public relations efforts by biometric identification and surveillance technology vendors have attempted to cloud the minds of judicial, political and media 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. We submit that this entire issue is about denial of Fundamental Rights by the emergence of an unlimited government.”

This constitutes an open declaration of war against citizens’ sensitive personal information like biometric data by transnational entities and governments captured by them paves way for the enslavement of present and future generations through biometric Aadhaar database that lies on cloud beyond Indian jurisdiction.

Can there be any legitimate constitutional or statutory authority which can be empowered to indiscriminately prepare a database based on biometric and electronic profiling of  present and future generation of “We, the People of India” for all time to come? Will such Centralized Identities Data Repository safeguard, enhance or undermine the dignity of “We, the People”?

Such initiatives must be stopped and boycotted, else it will spread its tentacles in every sphere of life and mobility in the country before it is too late.

http://www.rediff.com/news/column/how-aadhaar-promotes-a-digital-caste-system/20171004.htm

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