Hon’ble Chief Justice of India (CJI)
Supreme Court of India
AUGUST 26, 2016
With due respect this is to humbly draw your urgent attention towards Hon’ble Court’s website which continues to state Writ Petition (Civil) 494 of 2012 filed by Justice K.S.Puttaswamy (Retd) to be a “FIVE JUDGES BENCH MATTER” as of August 26, 2016, this is manifestly inappropriate because of the order of Hon’ble Court’s Bench of five judge headed by Chief Justice of India directing: “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest” in its order dated October 15, 2015. This letter is pursuant to my letter to you dated January 26, 2016.
We submit that the gnawing concerns expressed in the petition have been reiterated in several Writ Petitions filed in the Hon’ble Court and many Hon’ble High Courts in supreme national interest. These concerns were initially echoed by late Justice VR Krishna Iyer, Prof. Romila Thapar, Prof. Upendra Baxi, late S R Sankaran and other eminent citizens in a Statement of Concerns dated September 28, 2010 and reiterated in August 2015 in a Public Statement by Prof. Anil Sadgopal, noted educationist, Prof. Kalpana Kannabiran and other concerned citizens. The urgency of these concerns has been underlined by the Hon’ble CJI.
We submit that on August 11, 2015, the first order of three judge bench headed by Justice Chelameswar had directed “the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders” for authoritative decision “by a Bench of appropriate strength” disregarding the vehement opposition of Shri Shyam Divan and Shri Gopal Subramanium and, learned senior counsels on behalf of the petitioners to the suggestion that this batch of matters is required to be heard by a larger bench. This Bench allowed itself to be persuaded by the suggestion of the learned Attorney General that this batch of matters is required to be heard by a larger Bench of this Court as these matters throw up for debate important questions – (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. It is therefore submitted that these batch of matters are required to be heard and decided by a larger bench of at least five Judges in view of the mandate contained under Article 145(3) of the Constitution of India.
We submit that Article 145(3) states that the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
We submit that the three judge bench observed: “All the matters require to be heard finally. List all matters for final hearing after the Constitution Bench is over” in its August 11, 2015 order. It implies that all the petitions, transfer petitions and applications are pending before the Hon’ble Court awaiting the decision of the Constitution Bench in the matter of Right to Privacy.
Given the fact that the Hon’ble Court’s October 15, 2015 order was by a five judge bench, it is being understood that the formation of nine or 11 judges Constitution Bench has become necessary. A care reading of previous judgments underlines that Hon’ble Court does not need to send the matter of Right of Privacy to a bench larger than five judges, because five judges can interpret the rulings by six judge bench in Kharak Singh v. State of UP and others, and the seven judge ruling in Maneka Gandhi v. Union of India & Another, validate the five judge bench of Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, Government of India, New Delhi & Ors, and confirm the three judge ruling in Gobind v. State of M.P. & Another, in R. Rajagopal & Another v. State of Tamil Nadu & Others, Sharada v. Dharampal, Selvi & Ors vs State Of Karnataka & Anr and the two judge District Collector v. Canara Bank cases. The eight judge ruling in M.P. Singh & Others v. Satish Chandra & Others case is clearly inapplicable, and the five judge bench can assert that it does not need to be overruled to decide that there is a Right to Privacy.
We wish to draw your attention towards the observation of Parliamentary Standing Committee on Finance on The National Identification Authority of India (NIAI) Bill, 2010 in its 48 page report. At page no. 28 it reads: “The Committee are constrained to point out that in the instant case, since the law making is underway with the bill being pending, any executive action is as unethical and violative of Parliament’s prerogatives as promulgation of an ordinance while one of the Houses of Parliament being in session.” At page no. 32, it reads: “the United Kingdom shelved its Identity Cards Project for a number of reasons, which included:- (a) huge cost involved and possible cost overruns; (b) too complex; (c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs.” It is noteworthy that it took cognizance of the Report of the London School of Economics on UK’s Identity Projectinter-alia which states that “…..identity systems may create a range of new and unforeseen problems……the risk of failure in the current proposals is therefore magnified to the point where the scheme should be regarded as a potential danger to the public interest and to the legal rights of individuals”. As these findings are very much relevant and applicable to the UID scheme, they should have been seriously considered, the Parliamentary Standing Committee on Finance observed. Citizens Forum for Civil Liberties (CFCL) had appeared before this Parliamentary Committee to give its testimony.
In the matter of now rejected National Identification Authority of India (NIAI) Bill, 2010, “NHRC’s views on the NIAI Bill, 2010″ in the Human Rights Newsletter (Vol. 18 No.8, August 2011) reveals that UID/Aadhaar Number has dangerous ramifications is quite relevant in this regard. NHRC’s view was presented to the Parliamentary Standing Committee (PSC) on Finance. The PSC submitted its report to the Parliament.
Echoing NHRC’s view on “need for protection of information” and “the possibility of tampering with stored biometric information” in paragraph 5 (page no. 7 of the NHRC newsletter) and “disclosure of information in the interest of national security” mentioned in paragraph 9 (page no.8 of the newsletter), the Central Government’s Approach Paper for Legislation on Privacy dated October 13, 2010 admits, “India does not currently have a general data protection statute” as per information received from Union Ministry of Personnel, Public Grievances and Pensions through Letter Reference No.071/1/2010/-IR dated October 18, 2010.
On UID Number, the Approach Paper on Privacy Bill stated, “Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralized manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage. However, all this is likely to change with the implementation of the UID Project. One of the inevitable consequences of the UID Project will be that the UID Number will unify multiple databases. As more and more agencies of the government sign on to the UID Project, the UID Number will become the common thread that links all those databases together. Over time, private enterprise could also adopt the UID Number as an identifier for the purposes of the delivery of their services or even for enrolment as a customer.” The Approach Paper on Privacy Bill discloses, “Once this happens, the separation of data that currently exists between multiple databases will vanish.” This poses a threat to the identity of citizens and the idea of residents of the state as private persons will be forever abandoned.
In their testimony before the Parliamentary Standing Committee on Finance on June 29, 2011, Shri Rajiv Sharma, Secretary General, NHRC, Shri A.K. Garg, Registrar (Law), NHRC and Shri J.P. Meena, Joint Secretary (P&A), NHRC expressed their concerns. The report presented to the Parliament on December 13, 2011 records, “The Committee heard the representatives of the National Human Rights Commission on “The National Identification Authority of India Bill, 2010”. The major issues discussed during the sitting broadly related to nature, objective and beneficiaries of aadhaar number; possible discrimination and specific provisions that are required to be built in; safeguards needed for securing the stored information by the proposed National Identification Authority of India; implications of the provisions of the Bill on the individual‘s right to privacy, etc.”
We submit that Government has admitted before this Parliamentary Standing Committee that the issue of unique identification numbers may involve certain issues, such as (a) security and confidentiality of information, imposition of obligation of disclosure of information so collected in certain cases, (b) impersonation by certain individuals at the time of enrolment for issue of unique identification numbers, (c) unauthorised access to the Central Identities Data Repository (CIDR), (d) manipulation of biometric information, at page no. 7 of the report.
The Parliamentary Committee observed, “The collection of biometric information and its linkage with personal information of individuals without amendment to the Citizenship Act, 1955 as well as the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, appears to be beyond the scope of subordinate legislation, which needs to be examined in detail by Parliament” at page no. 30 of the report.
It noticed that a project namely, Bharatiya – Automated Finger Print Identification System (AFSI), was launched in January, 2009, being funded by the Department of Information Technology, Ministry of Communications and Information Technology, for collection of biometric information of the people of the country. Asked to clarify as to whether the biometric information (finger prints) being collected under the Bharatiya – AFSI project could also be used by the UIDAI, the Ministry have submitted that-
“The biometrics required for the aadhaar project are iris, ten finger prints and photograph. To ensure uniqueness of the individual, it is essential that the biometrics captured are as per the specifications laid down by the Biometrics Standards Committee. The quality, nature and manner of collection of biometric data by other biometric projects may not be of the nature that can be used for the purpose of the aadhaar scheme and hence it may not be possible to use the fingerprints captured under the Bhartiya-AFSI project.”
We submit that as a consequence foreign transnational corporations like Accenture, Safran Group and Ernst & Young has been given the task with regard to biometric data of Indian residents.
We submit that UIDAI had set up a Biometrics Standards Committee which revealed that ‘the biometrics will be captured for authentication by government departments and commercial organisations at the time of service delivery.’ The commercial organisation mentioned herein is not defined. The working paper of the UIDAI revealed that the ‘UID number will only guarantee identity, not rights, benefits or entitlements’. It is also said that it would not even guarantee identity, it would only provide ‘aid’ in identification. In fact it makes right to having rights conditional on having biometric aadhaar.
We submit that Biometrics Standards Committee had categorically stated that UID/aadhaar’s is meant only for “civilian application” but the order on aadhaar enabled biometric attendance system has been extended to defence employees as well. The fact remains UID was first adopted by USA’s Department of Defence, later by NATO. It has subsequently been pushed through World Bank’s etransform Initiative in partnership with France, South Korea, Gemalto, IBM, L1, Microsoft, Intel and Pfizer. L1 was a US a company when it got a contract from UIDAI but it got purchased by French Conglomerate Safran Group after security clearance by US Government. This constitutes breach of national security as no such clearance was granted by Government of India. Some of these companies have partnership with Chinese Government as well.
We submit that across the globe very stringent data privacy law has been framed wherein one’s personal data cannot be used by anyone including the government without your specific consent. But in India there is no data protection law. Aadhaar is akin to a piece of collar which the transnational powers want to tie on the neck of Indian citizens. Government has allowed itself to be misled and it has failed to protect personal sensitive information which has already gone to foreign companies.
It must be recalled that Dr. Manmohan Singh as Prime Minister had distributed Unique Identification (UID)/ Aadhaar numbers among the villagers of Tembhali village in Nandurbar District of Maharashtra on 29th September 2010. “The Aadhaar number will ease these difficulties in identification, by providing a nationally valid and verifiable single source of identity proof. The UIDAI will ensure the uniqueness of the Aadhaar numbers through the use of biometric attributes (Finger Prints and Iris) which will be linked to the number”.
It has now come to light as per a RTI reply of April 2015 that out of 83.5 crore aadhaar numbers issued so far, only 2.19 lakh i.e. 0.03 % comprised of them who did not have a pre-existing ID proof. It shows how Indians were taken for a ride.
It may be noted that even the Identification of Prisoners Act, 1920, of colonial vintage, reads: “The object of this bill is to provide legal authority for taking measurements, finger impressions, footprints and photographs of persons convicted of, or arrested in connection with, certain offences.” According to the Identification of Prisoners Act, 1920, at the time of the acquittal of the prisoner, his biometric data is required to be destroyed. Since 1857, fingerprint identification methods have been used by police agencies in India and around the world to identify suspected rebels, political dissidents and criminals. The method is unfolding to indiscriminately profile citizens in general to identify them. The UID/aadhaar project, however, stores the biometric data forever.
We submit that countries like China, Australia, UK and France have also rejected such biometric data based identification projects. Hon’ble Supreme Court of Philippines has also ruled against Aadhaar like identification project.
We submit that it is apparent that transnational entities and governments captured by them have declared an open war against citizens’ sensitive personal information like biometric data that paves the way for the enslavement of present and future generation of Indians through Aadhaar database that lies on cloud beyond Indian jurisdiction. Such initiatives must be stopped and boycotted else it will spread its tentacles in every sphere of life and mobility in the country.
We submit that there is a compelling logic for Hon’ble Court to reject implicit or explicit support for tracking, profiling, databasing and mortgaging of citizens’ rights and their sovereignty under the dictates of their donors and non-state actors. The biometric idea is aimed at making citizens transparent before the all mighty Governments so that Government, their servant can remain opaque to safeguard the interests of undemocratic and ungovernable social control technology companies.
We submit that in a case of breach of trust Central Government is making aadhaar mandatory by making it structurally irreversible outwitting Hon’ble Court’s directions although the very first promise which legally questionable UIDAI made in its UID/Aadhaar Enrolment Form is/was that it is “free and voluntary”. The fact is that it is neither free nor voluntary. It is not free because the foreign companies involved are admittedly charging Rs 2.75 per enrolment. So far Hon’ble Court has only repeated UIDAI’s own promise of Aadhaar being “voluntary.”
We submit that although Constitution Benches have started sitting since January 15, 2016 after your intervention, birth of Constitution Bench for Right to Privacy and Aadhaar case continues to experience labour pains. Hon’ble Court’s website as of August 26, 2016 states that Aadhaar case is a “Five Judges Matter” but among the 10 Constitution Bench cases listed for hearing, it finds no mention despite the fact that a five judge bench headed by Chief Justice of India wrote, “Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest”. Unless these words are accorded due respect and attention, the meaning of these words of Hon’ble Court will suffer grave irreparable erosion.
The experience of UID/Aadhaar demonstrates that NHRC’s concerns remain valid and the concerns of eminent persons have been vindicated.
In view of the “urgency” admitted and recorded by Hon’ble Court Bench of five judge headed by Chief Justice of India to the Right to Privacy and Aadhaar case, it appears inappropriate that even as the Hon’ble Court is to determine the legal status of Aadhaar, Indian residents are being coerced to accept 12 Digit Biometric UID/Aadhaar Number as a fait accompli, as if Hon’ble Court will have to act like a rubber stamp despite its legality having been questioned by Hon’ble Punjab & Haryana High Court.*
Thanking you in anticipation.
Citizens Forum for Civil Liberties (CFCL)
Mb: 08227816731, 09818089660
*P.S: In a setback to efforts to bulldoze UID/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 Unique Identification (UID)/Aadhaar mandatory was withdrawn.
In its order the Punjab and Haryana High Court bench of Justice A K Sikri, Chief Justice and Justice Rakesh Kumar Jain dated February 19, 2013 had noted that the petition “raises a pure question of law.” Since the Executive Order was withdrawn, the case too was disposed of March 2, 2013 with a two page order. The Order observes, “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.” It is further observed in the order that “Second issue raised in this petition is that vide order dated 5.12.2012, respondent No.3 i.e. Deputy Commissioner, U.T., 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 licence without UID card.” Such attempts to make UID/Aadhaar have 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.