• stumble
  • youtube
  • linkedin

Archives for : UID

#AadhaarHearing -Will the SC save present and future Indians from Cyber-Biometric Panopticon ?

On 21 April 2017, when Justice AK Sikri headed Bench of Supreme Court heard two cases Writ Petition (Civil) 277 of 2017 by Major General (Retd) Sudhir Vombatkere and Bezwada Wilson, leader of Safai Karamachari Andolan besides another petition filed by CPI leader Binoy Viswam related to violation of rights due to amendments in the Aadhaar Act, 2016 through Finance Act, 2017 enacted as a Money Bill, the questions he asked Attorney General gave a sense of deja vu.
Some four years ago, the then Chief Justice AK Sikri headed Bench of  the Punjab and Haryana High Court Bench had heard a case related to biometric Unique Identification (UID)/Aadhaar and passed an order dated 19 February 2013 wherein he had noted that the petition challenging mandatory requirement of Aadhaar “raises a pure question of law”. In its order, the Bench headed by Justice Sikri observed, “In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards.”
However, since the Executive Order of Union Territory of Chandigarh was withdrawn, the case too was disposed of on 2 March 2013 with a two-page order.  In this way the attempt to make. Aadhaar mandatory, which has emerged as an act of bullying by the government agencies and turning citizens into subjects by making right to have fundamental rights conditional on biometric identification was stopped in the tracks. In a setback to efforts to bulldoze Aadhaar and related schemes, following the direction issued to the Union of India and Union Territory of Chandigarh by 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filed in the High Court against Union of India and others, the Executive Order for making UID/Aadhaar mandatory was withdrawn.
In the current case, notably, Maj Gen Vombatkere, who retired as Additional Director General Discipline and Vigilance in Army Headquarters, has prayed that the Supreme Court should declare that Section 139AA of the Income Tax Act, 1961 (as introduced by Section 56 of the Finance Act, 2017) as ultra vires, unconstitutional, null and void and in particular violate Articles 14, 19 and 21 of the Constitution of India.
Section 139AA of the Income Tax Act inserted by the Finance Act, 2017, makes Aadhaar mandatory for filing Income Tax Returns (ITR).
As a consequence, Aadhaar has been made mandatory for obtaining permanent account number (PAN), continued validity of PAN and for filing of return under the Income Tax Act. He has also prayed that the Court should pass an order allowing filing of income tax return of individuals without Aadhaar number. He has also sought directions that no citizen of India be coerced to obtain an Aadhaar number and that the program under the Aadhaar Act is entirely voluntary even for assessee under the Income Tax Act, 1961. It has been contended that provision of biometrics has no reasonable relationship with the objectives of the Aadhaar Act as it ends up creating a wrongful classification among taxpayers.
While hearing the case, Justice Sikri asked the Attorney General as to how government can compel anyone to get Aadhaar when there are interim orders of the Constitution Bench.
In his reply, what Attorney General said was something, which was already stated by Ravishankar Prasad, the Minister of Law, Electronics and Information Technology, on 10 April 2017 during the Short Duration Discussion on Aadhaar in the Rajya Sabha. He said, “There is no stay by the Supreme Court. We are being governed by a mandate of the Aadhaar Act passed by the Parliament.”
He added, “I am very clear in my understanding of law that if the Parliament enacts a law and unless the Court stays the operation of that law, this law will hold the field and that is what that it holding the field.”
The minister referred to interim orders of the Supreme Court saying they were passed in 2015 and the Aadhaar Act came in 2016, assented by the President and became effective. He took the position that “My understanding of law is very clear that an interim order is only for the purposes of interim arrangement till the Parliament structures it. It is not a judgment. It has been referred to a Nine-Bench or Seven-Bench. Maybe, this law will also be considered.”
Notably, the Aadhaar Act became effective after it was notified on 12 September 2016 in Gazette of India.
It is germane to observe that the Minister feigned ignorance about the order of the Division Bench of Supreme Court dated 14 September 2016 in the matter of Writ Petition (Civil) 686 of 2016 wherein, the Court reiterated the Constitution Bench’s order dated 15 October 2015. The order reads: “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”.
While making his submission Attorney General too seemed to suffer from selective amnesia regarding Court’s order dated 14 September 2016 passed after two days of the notification of the Aadhaar Act. It is an established constitutional norm that the last order of the Supreme Court is the law of the land.
Like the Minister, the Attorney General referred to an irrelevant order of the Supreme Court dated 6 February 2017 in Lokniti Foundation Vs Union of India case. The fact is that in its counter affidavit in the Court, the Attorney General stated that biometric Aadhaar is voluntary. This submission, which has been reproduced in the order of Chief Justice of India headed two-Judge Division Bench including Justice NV Ramana stated, “Currently Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection.”
In its petition, Lokniti Foundation, the petitioner had prayed that “The Aadhaar Card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100% verification of mobile phone” but pursuant to Attorney General’s submission, it is apparent that the Bench decided to adhere to Constitution Bench’s order that keeps biometric Aadhaar Number voluntary.
Misquoting this very order, the Minister misinformed the Rajya Sabha that “there is the system of Aadhaar-enabled verification for SIM card for the user. I have got the copy of the order. The Supreme Court has approved it as a very good system, which has been incorporated.”
Notably, drawing on the same misrepresentation, the Department of Telecommunications (DoT) under Ravishankar Prasad has issued a circular dated 23 March 2017 making Aadhaar mandatory “regarding 100% E-KYC based re-verification of all existing subscribers” in the name of for “Implementation of Supreme Court orders”.
It is evident that the Minister and the Attorney General will have us believe that two-Judge Bench’s order will prevail over the five-Judge Constitution Bench’s order.
The Minister’s exercise in misrepresentation was once again exposed by Jairam Ramesh in the Rajya Sabha wherein he pointed out that the Minister “did not mention that there was a Supreme Court Order after the Act was passed on 14 September, 2016” and he underlined that “he quotes selectively from the 2015 Supreme Court Orders. Nowhere in those Supreme Court Orders does it say that the Supreme Court’s Orders are contingent on Parliament passing an Act.”
Maj Gen Vombatkere have argued, “The State should ensure unhindered compliance of a person’s obligation to pay income tax. Whether or not an individual is willing to part with his or her core biometric information is completely irrelevant to the discharge of this legal obligation, which is based on an objective criterion of the total income earned by a person.”
He has submitted that, “The impugned provision violates Article 14 of the Constitution of India and is palpably arbitrary and illegal inasmuch as it creates an artificial impermissible classification between those persons who have parted with biometrics and those who have not parted with biometrics for the purpose of payment and collection of income tax.”
In the light to this submission, the Court is likely to apply the doctrine of prohibition of “unconstitutional condition” which means any stipulation imposed upon the grant of a governmental privilege that in effect requires recipient of the privilege to relinquish some constitutional right. The submission demonstrates that it is unreasonable in a special sense that Aadhaar takes away or abridges the exercise of a right protected by the Constitution.
Apparently, under some external influence, Central Government’s stance has been insincere from the every outset. The total estimated budget of the biometric Aadhaar number project has not been disclosed till date. In any case, unless total estimated budget of the project is revealed all claims of benefits are suspect and untrustworthy.
After the trashing of Aadhaar by Lok Sabha’s Parliamentary Standing Committee on Finance and later by Rajya Sabha, the Court too will now have the opportunity to see through the coercive and unconstitutional nature of Aadhaar number project on 26 April 2017 when the case of Major General Vombatkere and others is scheduled to be decided by the Bench headed by Justice Sikri.
Meanwhile, the original case Writ Petition (Civil) No. 494 of 2012 filed by Justice KS Puttaswamy (Retd.) has been clubbed with 13 more petitions seeking scrapping of Aadhaar, which requiressetting up of Constitution Bench awaits the decision of the 44th Chief Justice of India despite admitted “urgency” by 42nd Chief Justice headed Constitution Bench after 43rd Chief Justice failed to set it up during his tenure.
Citizens in general and legal fraternity in particular ought to note that from now on when Supreme Court says, “its urgent”, it means the matter can wait at least for one and a half year!
Is it the case that the decision to set up Constitution Bench will be taken after July 2017 by the 45th Chief Justice?
(The author is Member, Citizens Forum for Civil Liberties (CFCL). He had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. He is editor of

Related posts

SC #AadhaarHearing – The Constitution is not a Charter of Servitude , argues Advocate Shyam Divan

“How can you engraft a provision into the Income Tax Act making Aadhaar mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary,” argued Mr Shyam Divan, lawyer for petitioners

Two writ petitions challenging the latest amendment to the Income Tax Act ar being heard at the Supreme Court by a bench comprising of Justice A.K. Sikri and Justice Ashok Bhushan.

The amendment in question introduces Section 139AA that makes submission of one’s Aadhaar/UID — a 12-digit biometrics-based identity number for residents —  mandatory when filing of income tax returns and obtaining and retaining the Permanent Account Number (PAN), both of which will be implemented from July 01, 2017 onwards.
Thus, the amendment makes it a penal offence to not enrol for Aadhaar/Unique Identity Number if one is an income tax payer in India.

The first petition was filed by CPI Leader Binoy Viswam, who is represented by Senior Advocate Aravind Datar, and the second one was filed by retired Major General Sudhir Vombatkere and Dalit activist Bezwada Wilson, who are represented by Senior Advocate Shyam Divan. Attorney General Mukul Rohatgi, and others are representing for Union of India and UIDAI.

Today, on April 27,  senior Advocate Shyam Divan argued the matter highlighting major problems with the Aadhaar project and spoke of seminal issues vital to the nature of relationship between the citizen and the state.

He covered bodily integrity, discrimination, personal autonomy and choice in the context of Aadhaar being made mandatory for PAN cards.

He explained that the petitioners in this case are conscientious objectors to the Aadhaar project. They are law abiding citizens who wish to pay tax, but do not wish to get Aadhaar. There are many like them.

Further, the amendment to the Income Tax Act discriminates between those who have Aadhaar and those who do not want to get Aadhaar. Both classes of people want to pay taxes but those who do not wish to get Aadhaar will face penal consequences. The government’s move violates Article 14 of the Constitution, which guarantees the right to equality. Aadhaar acts as an “electronic leash” and creates the potential for constant and continuous surveillance, he argued.

The Aadhaar project itself has been riddled with scandals. Divan read out a list of government websites that are leaking Aadhaar numbers and financial details of individuals.

We have seen massive data leaks across 12 government websites including the Jharkhand Directorate of Social Security which displayed the Aadhaar numbers and bank account numbers of over a million pensioners. 34,000 private enrolment agencies were blacklisted by the UIDAI itself.

In such a situation people are compelled to enrol through various manipulative coercive exercises of this government when it links vital services to this biometrics-linked number when the Aadhaar Act makes Aadhar purely voluntary.  The Aadhaar Enrolment Form itself states that Aadhaar is consensual and voluntary.

Divan pointed out that citizens in Rajasthan had been denied food rations because of Aadhaar biometric failures. He questioned if we lived in a State where citizens are denied will be denied ration because of Aadhaar failures. Shockingly, children and even new-born babies are being forced to enroll in Aadhaar. (The government is forcing parents, and it has made essential to have Aadhaar even in children’s schemes such as school education and mid-day meal lunches before the age of free consent). Consent must be free and informed.

Mr. Divan explained what was at stake in this matter. He said that since the matter was referred three Chief Justices had not been able to constitute a bench to hear the question of whether privacy is a fundamental right. In the interim there could not be a fait accompli situation.


The Aadhaar project alters the relationship between the State and the individual. It is an issue of civil liberty, Mr Divan argued.

The Attorney interrupted these arguments and asserted that the right to privacy could not be argued. Justice Sikri said that Mr. Divan was only explaining the context of the matter.

The Aadhaar Act itself does not allow Aadhaar to be made mandatory. Section 3 creates a right that entitles citizens to get Aadhaar but there is no duty to obtain an Aadhaar number. “How can you engraft a provision into the Income Tax Act making it mandatory when the Aadhaar Act itself makes Aadhaar purely voluntary,” said Mr Divan. 

Mr. Divan returned to the question of bodily integrity. He said “my fingerprints and iris are mine and my own. As far as I am concerned, the State cannot take away my body. This imperils my life.

He cited judgments and jurisprudential literature that “others cannot act in a way that subjects my body to their interests”. He explained bodily integrity in the context of the intrinsic wrongfulness of slavery which takes away the body and liberty. The use of a person’s body can only be for their own objects. 

When asked whether this argument would apply to passports, Mr. Divan responded that biometric collection could only apply to a narrow limited situation, such as passports, or identification of prisoners. Biometrics could not be collected wholesale and stored in a central depository. He said that the Aadhaar programme went against the concept of limited government.

He said that regular routine activities including buying a car, selling property, opening a savings account, would become contingent on the provision of biometric linked information. He said “how can someone ask for fingerprints for carrying out routine activities.”

The bench asked whether this argument would apply to the mandatory provision of PAN as well. Mr. Divan explained that PAN cards are not intrusive of our bodies whereas Aadhaar is.

Mr. Divan said “this is the kind of case where we have to read the Preamble to the Constitution”. In reading the Preamble he emphasised that the people of India give the Constitution to ourselves. “The Constitution of India is not a Charter of Servitude”

The Aadhaar project is unworkable, unreasonable, void, colourable and discriminatory. 

Mr. Divan’s arguments will conclude tomorrow after 2pm. The Attorney General will reply to these arguments next Tuesday.

For more information, email [email protected]

Related posts

#Aadhaar Hearing: Number tagging used to happen in Nazi concentration camps- Day 2

Updates from Supreme Court – Day 2

After an eventful Day 1Senior Advocate Shyam Divan commenced his arguments on Day 2 on making #Aadhaar mandatory for filing Income Tax Returns.

  1. Shyam Divan rattling off statistics on identity theft in arguments; quotes the Angela Merkel example
  2. “[Is the state] by an electronic leash, going to walk us around like a dog for the rest of our life?”
  3. “Seems like Shyam Divan wants stealthily slip in arguments on privacy issues in #Aadhaar” AG Rohatgi objects vociferously
  4. “Nowhere in the world such number tagging is done. It used to happen in [Nazi] concentration camps”
  5. Sr. adv. Shyam Divan cites doctrine of informed consent as a barrier to leaking of sensitive data like fingerprints
  6. The very object of the provision is discriminatory, between persons who have parted with bio metrics and those who don’t
  7. Day 2 hearing concludes; To resume tomorrow, Shyam Divan to continue.

Gautam Bhatia (@@gautambhatia88), Advocate, has been live tweeting each of the arguments from the Supreme Court. Here are his tweets (Best to read from bottom up)

Related posts

#AadhaarHearing in SC linking Aadhaar and Income Tax Returns -Day 1

April 26, 2016 -On an otherwise uneventful day at the Supreme Court, Court room 7 garnered the limelight, thanks to the two petitions challenging the Constitutional validity of Section 139AA of the Income Tax Act (IT Act). The said Section makes Aadhaar mandatory for filing Income Tax Returns.

The two petitions filed by three petitioners were argued by two Senior Advocates before a Bench of Justices AK Sikri and Ashok Bhushan.

The first petition has been filed by CPI leader Binoy Viswam. The petition was drawn and filed by advocate Sriram P. Senior Advocate Arvind Datar appeared for Viswam.

The second petition has been filed by SG Vombatkere, a retired Indian Army Officer and Bezwada Wilson, founder and convenor of Safai Karmachari Andolan. The petition was drawn by advocate Udayaditya Banerjee and filed by M/s. KJ John & Co with Senior Advocate Shyam Divan appearing for the two petitioners.

Below are the excerpts from the hearing that happened today


As soon as the hearing began, Attorney General Mukul Rohatgi made a submission which, it seems was anticipated by the petitioners. He submitted that challenge to Aadhaar based on right to privacy as a facet of Article 21 is already pending before the Supreme Court. He further stated that an Article 32 petition cannot lie if the said ground of violation of right to privacy as fundamental right is not taken.

“Article 32 will lie only in case of violation of fundamental rights. If there is no challenge regarding right to privacy then why come to Supreme Court”?, he said.

However, Senior Advocate Shyam Divan responded to it by saying that they are challenging the vires of section 139AA on the ground of violation of Articles 14, 19 and 21 and they will not raise the right to privacy issue.

“We will not argue on privacy issue at all”.

The Hearing

Arvind Datar for Binoy Viswam

Datar appearing for Viswam, proceeded to make his submissions. He began his submissions by saying that the provision was not part of the original Finance Bill.

“There is nothing in the Finance Minister’s speech on why this provision was inserted.”

He contended that the Central government had given an undertaking to the Court that it will not make Aadhaar mandatory except for certain social welfare schemes.

“How can they then go ahead and make it mandatory under the Income Tax Act?”he asked.

One of Datar’s main contentions was that Aadhaar is not mandatory under the Aadhaar Act and hence it cannot be made mandatory under IT Act.

“Unless the parent Act, that is, Section 3 of Aadhaar Act is amended to make it mandatory, it cannot be made mandatory under IT Act.”

Besides that, he also relied on the orders of the Supreme Court in the main case challenging the validity of Aadhaar. As per the orders, the Court had directed that the scheme is voluntary and cannot be made mandatory till the issue is finally settled by the court.

“Undertaking by the Union of India says that except for some social welfare schemes, it will not be mandatory. Moreover, it is not a mere undertaking now because there is an order to that effect by a Constitution Bench of this Court”, he said.

Datar was particularly critical of the proviso to Section 139AA, which states that in case of failure to intimate the Aadhaar number, the permanent account number (PAN) allotted to the person shall be deemed to be invalid.

Datar argued that this would mean that PAN would be invalid retrospectively. This was, however, refuted by Attorney General Mukul Rohatgi who clarified that it would be invalid only prospectively.

Datar’s contentions regarding violation of Article 14 was, however, met with constant questions by the Bench. The Bench observed that if the Legislature takes a decision to replace PAN with Aadhaar, that would only be a matter of policy unless the issue of privacy is involved.

“Suppose PAN is replaced by Aadhaar, and there is no issue of privacy, then will your challenge stand?” Justice Sikri queried.

Datar said that the provision discriminated against individual assesses, since partnership firms etc. can continue to file IT returns without Aadhaar.

He also raised the issue of arbitrariness. Though arbitrariness is usually used as a ground to strike down administrative actions, Datar contended that it can be used to challenge primary legislations too. He relied on the case of Mardia Chemicals to buttress his argument.”

Datar concluded his arguments before the Court rose for lunch.

Shyam Divan for SG Vombatkere and Bezwada Wilson

Divan submissions today were largely on the background of Aadhaar and how it does not merit a place under the current Constitutional setup.

“The petitioners understanding is that the State in India, under this Constitution has no right over their bodies. In a totalitarian State, an individual is just a number, but that is not the case in India.”

Divan submitted that the State cannot coerce into taking fingerprints and iris scans. He also cited examples of how fingerprints and iris scans were misused in Germany by taking high resolution photographs during press conference with the same being used to hack into information on defence department.

“My finger print and iris scan are mine. The all-powerful Republic of India cannot coerce me into parting with it for paying taxes”, he submitted.

Divan cited the dangers of finger prints and iris scans being used by the State to act as an “Electronic leash”.

“There is no bargain permitted under our Constitution by which the State can say ‘Give me your fingerprint and I will tether you electronically’.”

Besides, Divan also drew the attention of the Court to the fact that the data was collected through private third parties and not government offices.

“These private parties have to be given my personal information, which could be misused. 34,000 of such enrollers were recently scrapped and 3.84 lakh Aadhaar numbers were cancelled. It shows that it is a very porous and inefficient system.”

Divan will continue his arguments tomorrow after which Attorney General Mukul Rohatgi will make his submissions on behalf of the Union of India.

Related posts

Now, Aadhaar data public on PM Awas Yojana, Gujarat govt department websites #AadhaarFail

In the first, Aadhaar numbers of beneficiaries of Pradhan Mantri Awas Yojana (PMAY), which is under the Union Ministry of Housing and Urban Poverty Alleviation, were available on its website.

Aadhaar data, PM Awas Yojana, gujarat government, Pradhan Mantri Awas Yojana, aadhaar number, aadhaar mandatory, PMAY, indian express news, india newsGujarat Chief Minister Vijay Rupani. (File Photo)AFTER AADHAAR numbers of beneficiaries of at least three different government services appeared on the websites of their respective departments in the last three days, two more such incidents emerged on Tuesday.

In the first, Aadhaar numbers of beneficiaries of Pradhan Mantri Awas Yojana (PMAY), which is under the Union Ministry of Housing and Urban Poverty Alleviation, were available on its website.

In the second such case, the Department of Social Justice Justice and Empowerment of the Gujarat government had at least two documents with names, addresses and Aadhaar numbers of hundreds, if not thousands, of students that can be viewed publicly on the department’s website.

In the case of PMAY, putting in any random number in the “By Other ID” search option on its website brings up many beneficiaries along with their name, father’s name, city of residence, age, caste and Aadhaar numbers.

Even photographs of some of the beneficiaries are published next to their Aadhaar numbers.

In Gujarat, a list of 32,979 students who had received scholarship under the Post-Matric Scholarship for Minority Communities in 2013-14, and a list of 2,607 students who received Merit-cum-Means Scholarship for the same year are easily accessible on the Social Justice Department’s website.

In both these lists, Aadhaar numbers of many students, although not all, are mentioned along with their name, address, mobile phone number, parents’ names, bank account details and the institutions where they study.

In the last three days, Aadhaar numbers of PDS beneficiaries in Chandigarh, Provident Fund beneficiaries of Swachh Bharat Mission under the Water and Sanitation Ministry, and of lakhs of pensioners paid by the Jharkhand government had appeared on websites of their respective departments.

According to reports in other media and on Twitter, at least nine cases have come to light in April alone in which Aadhaar data appeared in public on websites of different government authorities across the country. These government agencies include the Punjab Minority Welfare Department, Bihar Minority Welfare Department, Mahatma Jyotiba Phule Telangana Backward Classes Welfare Residential Educational Institutions Society, Kerala Scholarship Egrantz, Khadi and Village Industries Commission, and Kerala Sevana Pension Site.

Aadhaar data on websites of some of these departments continue to exist even after the leaks have been reported.

Now, Aadhaar data public on PM Awas Yojana, Gujarat govt department websites

Related posts

#AadhaarFail -Days after Jharkhand breach, govt websites continue to bleed Aadhaar data



A woman getting her eyes scanned as part of the procedure to procure an Aadhaar card.(HT File Photo)

Days after Hindustan Times reported a data breach of over a million Aadhaar numbers from a Jharkhand government website, at least four more instances of similar leaks on other government websites have come to light.

These breaches come at a time when the Supreme Court is hearing a set of petitions challenging a controversial government decision to make it mandatory to seed Permanent Account Numbers (PAN) with Aadhaar numbers for filing income tax returns.

“We have taken the Jharkhand incident very seriously,” said Ajay Bhushan Pandey, CEO of the Unique Identification Authority of India (UIDAI), noting that publishing UID numbers was illegal, “Appropriate action will be taken against those responsible under the Aadhaar act.”

The unsecure websites investigated by HT include a scholarship database in Uttar Pradesh, a public distribution system website in Chandigarh, a pensioners dashboard in Kerala and a Swach Bharat Mission website maintained by the Ministry of Water and Sanitation, which cumulatively compromise the digital identities of thousands of citizens.

Some of these websites were taken down after HT reporters approached the relevant authorities for comment, but in other cases, the confidential information is still online and available for all to see.

“I just do not understand why and how this is happening,” said Jairam Ramesh, a senior Congress leader who has been critical of the Aadhaar rollout, “The only word I can use to describe this is ‘atrocious’.”

In Jharkhand, the UIDAI moved swiftly to shut down the website. On Monday, state officials sought to implement an additional layer of security to protect those whose identities have been compromised by the leak.

You cannot see the Aadhaar numbers anymore on the website. We are working on a One-Time Password (OTP) system for added security,” said Jharkhand social welfare secretary MS Bhatia, explaining that Aadhaar holders seeking to access the website will now get an OTP prior to logging in.

“The leakage instances show that the technical readiness of the government is just not in place to tackle a project of this scale,” said Apar Gupta, a Supreme Court lawyer and a petitioner in the Aadhaar cases, “This has been happening across state governments and departments.”

Gupta explained that central government notifications to seed discreet databases with Aadhaar numbers had created sensitive aggregations of citizen data at the state-level. “But these notifications have no guidance whatsoever about the data security protocols that need to be followed,” Gupta said.

In the absence of central guidance, each state department has created its own unique way of storing the data, often with the help of private software companies.

Pandey, the UIDAI CEO, said the ministry of Electronics and Information Technology has written to all state governments and the ministries asking them not to display such information. “If they do, they will have to face action,” he said.

Yet activists noted that in each data breach, the UIDAI and state authorities acted after user identities had already been compromised, and provisions in the Aadhar Act mean that citizens have no legal recourse to this intrusion.

“A person by himself does not have any recourse to ensure that leak is closed and for legal action for improper disclosure of personal information,” explained Gupta, the lawyer, ”Only the UIDAI authorities can register a case.”

“The UID numbers leaked in Jharkhand could be used for the next fraud based on identity-theft,” said Sunil Abraham, Executive Director of the Centre for Internet and Society, noting that authorities are investigating the use of Jan-Dhan accounts for money laundering during demonetisation. “At a bare minimum, the UIDAI should issue new ID numbers to protect those affected by the data breach.”

Pandey, however, said issuing new UIDs was not an option.

“Our track record has no case of identity of theft or financial loss and if anything comes, we have the ability to track the culprit,” Pandey said.

When asked if this unblemished track-record had ever been independently audited, Pandey demurred.

“Whosoever is supposed to audit us is auditing us,” Pandey said, “But the names can’t be disclosed due to security reasons.”

Related posts

Bovine Intervention: Here Comes a Unique ID Number For Cows #WTFnews

Centre wants UID for all cows with details of horn, tail, breed, age

Bovine Intervention: Here Comes a Unique ID Number For Cows

Representative image

New Delhi: Buoyed by the success of unique identification number for humans, the Centre has decided to create a similar UID for cows.

While talks about such a move last year were met with amusement and criticism, the government has now made its intentions clear at the highest level.

In a submission to the Supreme Court on measures to be taken for cow protection and to stop smuggling of cattle across the IndiaBangladesh border, the Centre has said that a committee, headed by joint secretary, home ministry, has been formed to find out ways to generate UID for each cow in India.

The UID will have details like age, breed, sex, lactation, height, body, colour, horn type, tail switch and special marks of the animal. While the responsibility for care of abandoned animals will lie with the state governments, the Centre is planning shelter homes in each district to accommodate at least 500 abandoned cows. The panel has suggested that the state governments will have to fund these facilities for cows.

The government has also recommended special care for cows beyond the age of milking. Centre has also proposed a scheme for farmers in distress, to discourage them from selling their cattle after its milking age.

The central government told the Supreme Court on Monday that it wants an Aadhaar-like unique identification system for cows to track their movement and prevent inter-state and inter-country smuggling. Adducing a report by a committee appointed by the Union Home Ministry, Solicitor General Ranjit Kumar told a bench led by Chief Justice of India J S Khehar that the Centre has approved the recommendations in principle. The bench posted the matter for detailed hearing on Tuesday.

The committee, headed by a Joint Secretary in the MHA, was constituted after the apex court prodded the government to stop smuggling of cattle, especially through the porous borders with Nepal and Bangladesh. “Each animal (should) be tagged with a unique identification number with proper records of identification details such as age, breed, sex, lactation, height, body, colour, horn type, tail switch, special mark etc,” says the report.

It points out that the Ministry of Agriculture has devised a tamper-proof method for identification of cattle, using polyurethane tags with a unique identification number sequence. “This may be made mandatory for all cows and its progeny throughout India for all cattle that is owned. Already, mass tagging of cattle for insurance purpose is being done by Livestock Development Boards and Animal Husbandry Department of state governments,” it says.

The committee has proposed that a state-level databank should be set up, which may be linked with a national online database for registered cattle. “The protocol for such registration may be notified by the Ministry of Agriculture and also allocation of suitable budget for the registration of cattle in a phase-wise manner across the country. A nodal officer may be appointed as the Registrar of Cattle Premises, appointed in each state under the Registration of Cattle Premises Rules, 1978, under the Prevention of Cruelty to Animals (PCA) Act,” says the report.

Amid the nationwide debate over attacks by “gau rakshaks”, the committee has recommended that “all cattle being transported may have identification tags” and that “no animal transportation may be permitted without ‘fitness to move certificate’ to be issued by registered veterinary officers.”

Calling for a uniform law for cow preservation and protection in India, the committee has also proposed restrictions on “private inter-state trade/ transportation of cattle” and said that “only government agencies may be allowed inter-state trade/ transportation.”

Favouring increased penalty under the PCA Act, it has said that “penalty to be increased from Rs 50… make all offences under the Act cognizable.”

Pointing out that cattle smuggling is a by-product of the dairy industry, the report says: “Barren cows or bulls or low-yielding animals are sold to organised smugglers or are abandoned on the roads from where they are captured and smuggled to international borders. Such sales and abandonment of cattle is rampant and without any onus or responsibility on the part of the cattle owner.”

The panel has suggested that “state governments bordering Bangladesh may prohibit livestock markets within 20 km distance from international borders.” It has also recommended that state governments should be responsible for the safety and care of abandoned animals. Each district should have a shelter home with a capacity to house at least 500 abandoned animals to help reduce smuggling, and such units should be funded by the states.

That’s not it. Toll free helplines are being set up where people will be asked to report any suspicious trafficking of cows.

According to sources, India has nearly 47 million indigenous and cross-bred cows. Each of these cows will get a 12-digit UID, which will help the government in tracking their movement and productivity.

Related posts

Aadhaar: On 139AA of Finance Bill what is at stake?

The matter of 139AA is not simply about linking the Aadhaar number to a permanent account number (PAN). It is about upholding rule of law and the dignity of the Supreme Court.
The apex court in its orders of 15 October 2015 noted that “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”.
On 23 September 2013, the SC had ordered, “no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar Card voluntarily”. In the matter of CRL 2524 of 2014 on 24 March 2014 the apex court had reiterated that “no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/ circulars/ likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith”.
In its order of 11 August 2015, the Court ordered that Aadhaar may not be used for any purpose other than the PDS Scheme, for the distribution of foodgrains, and cooking fuel, such as kerosene and LPG. This was extended to allow its use for 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) in its orders of 15 October 2016. The court also stated that the information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose.
On 14 September 2016 in the matter of WP 686 of 2016 the court stayed the operation and implementation of  that or Pre-Matric Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-cum-Means Scholarship Scheme to the extent they have made submission of Aadhaar mandatory.
The Supreme Court’s mind on Aadhaar has been unambiguous and consistent.
The Attorney General’s Promises
The Attorney General submitted to the court, on 11 August 2015, that to settle the legal position regarding the existence of the fundamental right to privacy, this batch of matters on Aadhaar is required to be heard by a larger Bench. He framed the questions before the bench as – (i) whether there is any “right to privacy” guaranteed under our Constitution. (ii) If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy. In doing so he caused the Court to place these matters before the Chief Justice of India to be referred to be examined and authoritatively decided by a Bench of appropriate strength.
The apex court further noted that the Attorney General stated that the Union of India would ensure that Aadhaar cards would only be issued on a consensual basis, which shall however not be used for any purpose other than a social benefit schemes. The Attorney General also stated that the respondents do not share any personal information of an Aadhaar cardholder through biometrics or otherwise with any other person or authority. This statement allays the apprehension for now, that there is a widespread breach of privacy of those to whom an Aadhaar card has been issued. It was further contended on behalf of the petitioners that there still is breach of privacy.
The Attorney General’s Acts
Despite the directions of the Court there have been hundreds of violations of the orders of the apex court. In 2017, more than 60 gazette notifications have been issued linking various programs with Aadhaar or mandating it. Authorities have not modified their forms/circulars/likes so as to not compulsorily require the Aadhaar number. Aadhaar card requirement has not been kept as purely voluntary. Aadhaar numbers have been used for purposes other than for the schemes permitted by the court. Information associated with the Aadhaar number has been shared with several government agencies as well as private parties. No advertisements, processes, procedures, Memorandum of Association (MOA), technology, framework, API have been amended to ensure explicit, unambiguous and clear steps to comply with the court’s orders. Many government agencies and private companies have been coercing the enrolment for Aadhaar. Crores of people continue to suffer from the Aadhaar.
Even while the matter was sub-judice and the apex court orders were explicit about maintaining status quo till the final decision of the Court, The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was introduced on the advice of the Attorney General as a Money Bill. The Act violates the status quo, is preemptive and subverts the petitions pending before the Supreme Court.
As if this were not enough, in the WP 607 of 2016 filed by Lokniti praying for a definite mobile phone subscriber verification scheme, the Attorney General filed an affidavit describing “Aadhaar based e-know-your-customer (E-KYC) for issuing mobile connections introduced on 16 August 2016 wherein the customer as well as Point of Sale (PoS) Agent of the telecom service provider (TSP) will be authenticated from Unique Identification Authority of India (UIDAI) based on their biometrics and their demographic data received from UIDAI is stored”.
The Attorney General omitted to mention to the bench that such use of Aadhaar was already a violation of his promise to the Court and the orders of the Supreme Court in the petitions on Aadhaar pending with it. The Court was misled into believing that existing subscribers can be verified in a similar manner and the process will be completed within one year. There was no effort by the Attorney General to either point out to the court its restrictions on the use of Aadhaar or to let the petitioners in the Aadhaar matter and have their say.
In March 2017, in a surprise addendum to the Finance Bill, under advise of the Attorney General, the union government introduced Section 139AA. Section 139AA requires linking the PAN card to an Aadhaar number to file income tax returns (ITRs) and allow the PAN to remain valid. This too is in contempt of the orders of the Supreme Court, is preemptive and subverts the process of justice.
In testimony of the fears placed before the court and contrary to the promise of the Attorney General to the court, the last two months have witnessed several data leaks that indicate the sharing of UID information across government agencies. The UIDAI continuing to service the partner agencies for KYC and authentication beyond the permitted usage also points to information sharing that is beyond government. As noted by the court, the petitioners’ fears of violation of privacy have been vindicated.
Questions of Rule of Law and the Balance of Power
Is the Attorney General above the Rule of Law? Is his word and interpretation law that must go unchallenged? Can the power of the Supreme Court not extend to hold the Attorney General responsible for commissions and commissions? Has the Attorney general used tactics that have preempted and subverted justice? Who is responsible for the national and public interest that may have been compromised in the process? Has the balance of power of the executive and judiciary been upset by the blatant contempt of the courts orders? Do the orders of the court matter to maintain the rule of law?
We the people of India have waited patiently and long as the justice, equality, liberty and fraternity promised to us by the constitution is kept from us.
(Dr Anupam Saraph is a renowned expert in governance of complex systems and advises governments and businesses across the world. He can be reached @anupamsaraph.)

Related posts

Details of over a million Aadhaar numbers published on Jharkhand govt website #WTFnews

Jharkhand has over 1.6 million pensioners, 1.4 million of whom have seeded their bank accounts with their Aadhaar numbers to avail of direct bank transfers for their monthly pensions. Their personal details are now freely available.

Aadhaar number

(HT File Photo)

Digital identities of more than a million citizens have been compromised by a programming error on a website maintained by the Jharkhand Directorate of Social Security.

The glitch revealed the names, addresses, Aadhaar numbers and bank account details of the beneficiaries of Jharkhand’s old age pension scheme.

Jharkhand has over 1.6 million pensioners, 1.4 million of whom have seeded their bank accounts with their Aadhaar numbers to avail of direct bank transfers for their monthly pensions.

Their personal details are now freely available to anyone who logs onto the website, a major privacy breach at a time when the Supreme Court, cyber-security experts and opposition politicians have questioned a government policy to make Aadhaar mandatory to get benefits of a variety of government schemes and services.

When HT reporters logged onto the site, they could drill down to get transaction-level data on pension paid into scores of pension accounts

The publishing of Aadhaar numbers is in contravention of Section 29 (4) of the Aadhaar Act. Earlier this year, the Unique Identification Authority of India (UIDAI) blacklisted an Aadhaar service provider for 10 years for publishing the Aadhaar number of MS Dhoni, former captain of the Indian cricket team.

The authority has also filed at least eight police complaints in the past month against private parties for “illegally collecting” Aadhaar numbers of citizens – information that the Jharkhand government has now put into the public domain. UIDAI did not respond to queries sent by HT.

Bhatia declined to comment on the legal implications of publishing this information.

“Will the CEO of UIDAI take any action against the government of Jharkhand for making this dataset public? And if they don’t, does that mean they condone this act?” said Pranesh Prakash, policy director at the Centre for Internet and Society.

The data breach, senior Congress leader Jairam Ramesh said, “makes a complete mockery of all that Jaitley and Ravi Shankar Prasad have said in Parliament.”

Problems with Aadhaar-based authentication and enrollment, Ramesh added, had also meant that many vulnerable people had been denied their legally mandated welfare entitlements.

At present, the Supreme Court is considering the legality of a government decision to make it mandatory to provide an Aadhaar number when filing income tax returns.

In Jharkhand, officials were surprisingly sanguine about the breach, suggesting that they had been aware of the situation for several days.

“We got to know about it this week itself. Our programmers are working on it, and the matter should be addressed very soon,” said MS Bhatia, secretary of the state’s social welfare department

Related posts

Four recent cases in which Centre has violated Supreme Court orders on #Aadhaar

Supreme court, Summer vacation, Memorandum

The Executive v. Judiciary debate has once again re-ignited, thanks to the recent developments concerning Aadhaar. While the recent notifications by the Central Government making Aadhaar mandatory for Income Tax filing, mobile connections etc. seem to be in clear violation of the orders of the Supreme Court, they are not isolated examples.

On one hand, the leaders of the government have been vocal about democracy’s triumph, but on the other hand, their government has failed to respect the orders of the apex court.

Below are four important cases in the recent past in which the Centre has openly defied the dictate of the Supreme Court.


This case definitely tops the list. The Central government has been coming out with one notification after another in clear violation of the orders passed by the Supreme Court.

The August 11, 2015 order of the Supreme Court states that obtaining Aadhaar shall not be mandatory. It states:

“1. The Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card;

2. The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen”

The order also clarifies that Aadhaar can be “used” by the Centre for PDS and LPG distribution schemes. This interim order of August 11 was subsequently modified by another order passed on October 15. By this, the Court extended the permission to use Aadhaar for MNREGA, Employees Provident Fund, National Social Assistance Programme and Prime Minister’s Jan Dhan Yojana.

However, both the orders, though giving permission to the Centre to use Aadhaar for the exempted schemes, do not talk about permission to make it mandatory. In fact, both the orders spell out that Aadhaar is a voluntary scheme and it cannot be made mandatory until the matter is finally decided by the Supreme Court.

On January 3 and January 4 this year, the Centre issued two notifications making Aadhaar number compulsory for MNREGA and EPS. This was in clear violation of two aforementioned interim orders passed by the Supreme Court.

Immediately after the two notifications were issued, the matter was mentioned on January 5 before Chief Justice Khehar by one of the petitioners through Senior Advocate Shyam Divan. Though Divan sought an early hearing in the matter, the court brushed aside the same and declined this request for the time being.

Fresh from the confidence of non-interference by the apex court, the Centre has now moved into top gear. They have now made it mandatory to have Aadhaar to file Income Tax Returns and to apply for PAN Number.

And that is not all. The Department of Telecom has also now issued a circular to Telecom companies directing them to link all mobile numbers to Aadhaar.

Interestingly, the circular by DoT says that this has been done pursuant to an order of the Supreme Court. The Supreme Court order referred to by the DoT circular was passed by a Division Bench in a petition filed by NGO Lokniti Foundation. The said order and its interpretation are itself open to debate.

However, if the said order is interpreted to the effect that it mandates verification of mobiles subscribers then it will be in clear violation of the earlier order passed by larger Benches of the Court in the Aadhaar case. Interesting indeed.

Today, the Supreme Court again turned down the plea by Senior Advocate Shyam Divan for an urgent hearing while also remarking that the interim orders of the Court which states that Aadhaar is not mandatory but only voluntary is only with respect to social welfare schemes.

NJAC case: Memorandum of Procedure

Perhaps the most blatant show of defiance by the Centre. This one might not be very well known outside the legal fraternity since judicial appointments is still a topic of discussion confined largely to legal circles.

Hence, some background.

On, October 16, 2015, a Constitution Bench of the Supreme Court struck down the National Judicial Appointments Commission as unconstitutional. Subsequently, in what was unprecedented, the court invited suggestions for improving the Collegium system. Based on the inputs received, the court on December 16, 2015 passed an order by which it left the task of amending the Memorandum of Procedure (MoP) to the Central government.

The MoP is a document which sets out the procedure for appointment of judges to High Courts and the Supreme Court. It was first prepared pursuant to the directions of the Supreme Court in the Second Judges case.

Since it is an exercise to be carried out by the government in furtherance of a Supreme Court judgment, it is merely a step for implementation of the Court’s judgment. In other words, it is not a right that the Executive has, but merely a task left to them to enforce a judicial order. The order of December 16 itself makes this clear:

“It was at this stage of our reflection, that the learned Attorney General made an impassioned submission, not in any obstructive manner, but as a matter of faithful assistance, suggesting that we should desist from pursuing the contemplated course of action. In this behalf it was pointed out, that theformulation of the Memorandum of Procedure was an administrative responsibility which fell in the executive domain.

..we were also informed by the Attorney General, that the MoP and amendments therein, had always been prepared by the Government of India in consultation with the President of India and the Chief Justice of India. This practice, we were informed, had been consistently adopted, in consonance with the directions contained in paragraph 478 of the Second Judges case.

In order to allay any fear that may be entertained by any of the stakeholders, it was submitted that the same procedure would be adopted now, if the task was entrusted to the executive. We are in complete agreement with the suggestion of the learned Attorney General.”

However, contrary to the submissions of the Attorney General on December 16, 2015, what the Centre did and continues to do has baffled legal experts and commentators alike.

In what has literally been a tug-of-war between the two wings of the State, the MoP has gone back and forth. The disagreement between the two was pronounced during the tenure of former Chief Justice of India TS Thakur. After his retirement, conflicting reports have been published; Times of India reported that the CJI has agreed to the ‘National Security’ clause, but Indian Express subsequently reported the opposite.

Whatever be the factual position, the law as it currently stands does not entitle the Union to bargain with the CJI on the MoP.

It is due to this reason that I consider it surprising that the Supreme Court has not re-opened the NJAC case – in which it had passed the December 16 order – and hauled up the officials of the Ministry of Law and Justice.

This was precisely what the late Senior Advocate Anil B Divan said at a panel discussion organised by Vidhi Centre for Legal Policy and the Campaign for Judicial Accountability and Reforms on August 31, 2016.

Divan was very categorical in his remarks, stating that the Supreme Court should recall its order by which it had left it to the Centre to finalise the MoP. He also said that the matter should be dealt with by the Supreme Court on the judicial side given that the Centre is not co-operating with the drafting of the MoP. He said,

“It is a judicial order, recall that order.”

Despite this, the Supreme Court has refused to take up the issue on the judicial side as the back and forth over the MoP continues.

Patiala House: Bar and Police refusing to obey the Bench?

The events began on February 15 of last year when a bunch of lawyers had held the Patiala House District court to ransom. The reason was that JNU student Kanhaiya Kumar, charged with sedition, was being brought to the court for trial. A big group of lawyers gathered inside the court premises and thrashed students from JNU and journalists who had come to report the proceedings. The hearing was, therefore, postponed to February 17.

Meanwhile, social activist and JNU alum ND Jayaprakash filed a PIL in Supreme Court the very next day, i.e. February 16, seeking, amongst other things, a direction the Union Home Ministry and Delhi Police to ensure the safety and security of persons inside the Patiala House court premises during the trial of Kanhaiya Kumar.

The petition was taken up for hearing on February 17 at 10.30 am the same day when the trial in Patiala House court was slated to be taken up.

The Court then passed an order regulating the entry of people inside the Patiala house court room where the hearing was slated.

The Court in its order also stated the following:

“We are also informed that there is a possibility of a large gathering of various groups including the students and political parties at the Court when the matter is taken up. We are inclined to agree with such anticipation and we, therefore, deem it appropriate to direct the Commissioner of Police, Delhi to take such appropriate measures as he may deem fit to maintain the law and order situation in accordance with law.”

Despite the clear direction to regulate entry of people into Patiala House and to take steps to maintain law and order, lawyers once again ram amok with the police remaining mute spectators.

The Court subsequently called for a report from the Delhi Police on why it was unable to control the hooliganism despite a strict direction to that effect. The Delhi Police had its own version of the story. But the fact that there was a clear disobedience of the Supreme Court’s order by the police under the Union Home Ministry remains as clear as daylight.

Judicial Appointments case: Justices Valmiki Mehta and MR Shah

This is one case in which there were no formal judicial orders which were disobeyed by the Centre. However, each and every hearing in the PIL filed by one Anil Kabotra witnessed gripping exchanges between former Chief Justice TS Thakur and Centre’s lawyers.

On August 12 of last year, Justice Thakur was clearly upset by the fact that the transfer files of Justice Valmiki Mehta of the Delhi High Court and Justice MR Shah of the Gujarat High Court were not being cleared. He threatened to withdraw judicial work from the two judges if the transfer was not given effect.

“Recommendations for transfer of Justice M R Shah from Gujarat High Court and Justice Valmiki Mehta from Delhi High Court were sent in February and March. These have not been given effect to. If this is the approach of the Union government, then we would have no option but to withdraw judicial work from these transferred Judges”, he said.

Two months down the line, Justice Thakur stepped on the gas and warned the Centre that it will summon top bureaucrats from the Prime Minister’s Office. This development came about after Attorney General Mukul Rohatgi submitted data relating to files cleared by the Centre. Rohatgi told the court that out of the eight recommendations pertaining to the Allahabad High Court, two had been cleared.

Thakur CJ was visibly unimpressed, commenting that it appeared that the government wanted a “confrontation”. Timely intervention by the Attorney General helped the Centre hold Justice Thakur at bay.

After Justice Thakur’s retirement this January, his successor disposed of the petition noting that sufficient progress has been made. However, if newspaper reports are to be believed, Justices Mehta and Shah will continue in their respective parent High Courts, as the Centre has returned their transfer files to the collegium.

Even as the Centre continues to defy the court’s orders, it remains to be seen whether the apex court will take a stern stand on this trend.

Related posts