On 23 September 2013, the Supreme Court passed an interim order to the effect that an Aadhaar card or number, as envisioned in the ambitious Unique Identification Project (UID), could not be made a mandatory requirement for availing essential services from the government. This was in response to the Public Interest Litigation filed by Bangalore-based retired Justice K S Puttaswamy in the Supreme Court. Expectedly, the order has shaken up the government's plans and has also created confusion among citizens, especially in view of the fact that many states and state agencies had of late been insisting that citizens enrol themselves for the UID number, as that would be necessary to enjoy certain services and subsidies.
The final hearing and order of the apex court on the matter is pending yet, but Bangalore-based newsmagazine Citizen Matters (also published by Oorvani Media) recently caught up with Justice Puttaswamy to understand the concerns raised by him on the Aadhaar card in the PIL filed. In this conversation, the 88-year-old petitioner says that collecting biometric details for issuing a card, which merely states that one is a resident of India, is invasion of privacy under Article 21 of the Indian Constitution. Here are excerpts from the interview.
Why did you file the PIL in the Supreme Court against UIDAI? Is there any instance or reason which led you to do so?
There are a few contentions which led me to file the PIL. There is no parliamentary approval for UIDAI. As a matter of fact, a bill - the National Identification Authority of India Bill, 2010 - was brought before the parliament. It was referred to the Select Committee (which consists of 30 members including lawyers, IAS officers, ministers and representatives of every political party). These 30 members examined the bill in detail and rejected it saying that it has serious flaws, including invasion of privacy. The committee said that the bill was constitutionally invalid. Normally they should have brought out a fresh bill, by removing the flaws before issuing the Unique Identification Cards (UIC). But they did not do so. Instead, the central government very curiously issued an Executive Order for issue of UIC.
One more objection is that private agencies are collecting all biometric data required.
You filed the PIL in December 2012, but UIDAI started enrolling people much ahead of it. Why was there a delay?
I learned about the Select Committee rejection from Rama Jois, who is a good friend of mine. I then decided to approach the Supreme Court under Article 32 of the Indian Constitution. The article guarantees an individual the right to approach the Supreme Court directly for any infraction of fundamental rights. The individual can approach the court through a petition.
[ Click here to read the summary of Parliamentary Committee report on Aadhaar, compiled by PRS India.]
What are the loopholes in the government's bill in your opinion?
The biggest loophole is that private agencies have been given the task of collecting personal details, fingerprints and iris. Another point is that this is not a card which proves that I am a citizen of India; it merely says that I am a resident of India. It is a residential card. In USA too, they have a Citizenship Card but the data is collected by the government and the card is issued by the government too.
But Passport Seva Kendras are also being operated by private firms. In Bangalore, a tech firm runs the front-end process of collecting, checking and processing forms at the PSKs. The forms have a lot of personal information of citizens. Is that not a privacy worry?
I am not aware of private companies collecting details for the Passport Authority. But if they are doing it, that is bad. I feel very sorry for the government and the department.
What are the concerns you have raised in the PIL?
The grounds on which I have urged are:
The executive orders should not have been made when the Select Committee in its wisdom has rejected the bill. They should have made a fresh bill and sent it to the Parliament for approval again.
It invades my right to privacy, which is guaranteed to me under Article 21, which gives me the right to lead a dignified life.
They want to issue the card even to illegal immigrants. Every second resident in Guwahati is an illegal immigrant. There are many such in Kolkata and also in Sirsi. These are all refugees from Bangladesh and other neighbouring nations. One can only imagine, how many such immigrants could be there in all, when you take into account Bangalore, Delhi and other places. Unfortunately, these form the vote banks of political parties. Thus the government seems to be hurriedly pressing for it.
Why do you think collection of biometrics is an invasion of privacy? Fingerprints and iris details are also being collected by the RTO for issuing driving licence smart cards. One also has to give his fingerprints while registering a property.
I am not aware of the driving licence procedure. When I got my driving licence, all I had to do was pass the test and give my residential address. In my opinion, this is sufficient. In the case of property registration, nobody has ever objected to it. This has been going on since the British Raj. Then again, it is backed by the Indian Stamp Act and the Registration Act. It is therefore regulated.
But the UIDAI is neither regulated nor backed by any bill. There was also an attempt to bring in a law, when the UIDAI was to start operations, but it was not accepted by the select committee headed by Yashwant Sinha.
Is your main objection to the way in which Aadhaar is being implemented, or do you see inherent flaws in the UID provisions themselves?
It is both. It is public money which is being wasted and many voices of people objecting to this have also been ignored. The scheme is being implemented without any analysis.
You have also questioned the safety of data, so does this mean that data is presently being leaked or misused or not handled correctly by UIDAI? Are there any cases which you can quote on this?
I am worried about the safety of Indians. Any data can be stolen with the help of advanced technology. The data collected are all important documents. Private agencies want to make profits quickly, so if they want, they can easily sell the data.
Nandan Nilekani, the chairman of UIDAI, is a very professional man and has sound knowledge in the field of technology, but does he know the legal aspects?
Are not other government document schemes such as passport, ration card etc., equally vulnerable to theft of data, loss of privacy etc? Why is Aadhaar alone riskier?
Because, it is being done by private agencies. If it is done by government agencies, where the staff is well-trained, well-equipped and legally backed, it is fine.
Private operators are contracted to the government under legal terms. If they violate privacy, the government can act against them. If the entire work is done by government staff themselves like you say, why do you think they are incorruptible? What if they sell out data for money?
Private operators are always bad; there is always a possibility of data being leaked. The present government also is not trustworthy. There is no legal or government backing to Aadhaar. Today anyone can get an Aadhaar card, whether Indian or not.
You know the status of government record-keeping, especially when handling citizen data entry like voter cards, ration cards etc. Everything from names to spellings to age, etc. is entered wrong. There are people in Bangalore's voter rolls who are 4000+ years old. Will you trust data entry by the government data entry staff for a Citizenship Card project?
There are errors everywhere. They could be man-made at times or printing errors at others. This 4000+ age that you are speaking about is a printing error.
A Citizenship Card is a simple card and is regulated by the Citizenship Act. It is not issued on the back of executive orders alone, like Aadhaar is. Errors can happen there too. But since it is backed by an act, it is trustworthy, like the Voters' ID card, Ration Card and so on.
If the flaws pointed by the Select Committee are removed and a proper Citizenship Card is issued, as per Parliament orders, then it is ok.
One of the reasons Aadhaar was originally promised was to cutback on massive duplication of cards issued for benefits - like ration cards, BPL cards, Antyodaya cards etc. If there is one unique non-replicable ID for a citizen, then that person cannot masquerade and get multiple benefit cards. Is the systematic weeding out of beneficiary duplication not a good thing?
Yes, that was the main idea - to have just one card for everything, instead of multiple cards. We have to wait and watch now, to see what the final outcome will be. The SC case hearing is coming up...
The SC has passed only an interim order, so is it possible that the Court might overturn its decision, when passing the final judgment?
I cannot say what the Supreme Court's final decision on the petition will be, but it does not seem likely that they will reverse the order. The Supreme Court does not entertain all PILs, they go by the genuine ones as there are many instances where PILs are filed merely out of political interest.
The Supreme Court will not be guided by political motives. They will go by the validity of the executive order and approach the issue from a constitutional point of view.
An interim order is as decisive as a final order. So presently, all these government schemes cannot be imposed on people. And if it is done, it would be counted as contempt of court.
In the interim order, the SC rules that UID cannot be made mandatory for essential services. What are these essential services?
The interim order does not mention any names of schemes. But under this, no one can insist on Aadhaar for any government schemes like ration card, bank account, cash transfer, issue of LPG subsidies and so on. It cannot be issued to immigrants either.
Even if this particular ruling stays, how much of a victory is it for the anti-UID activists? For example, what if banks demand UID as part of KYC or interest credits tomorrow, because those are not government services?
If, after the interim orders or the final order, any one demands an Aadhaar card, a complaint can be made against that person. The Supreme Court clearly says that it is voluntary for people to have an Aadhaar card. It cannot be imposed upon people.
What will happen if the bill is passed in Parliament, before the final order of the SC?
I am confident that the Parliament will not approve the bill. It cannot, or rather will not, compel citizens to part with their fingerprints and iris data. If the Parliament had agreed to it and then cards were being issued, I would have then challenged the act itself in the Supreme Court.
Do any of your family members have an Aadhaar card?
No. None of my family members - wife, two sons and two daughters - have an Aadhaar card.
Can action by civil society groups/legalists actually lead to nullification/abandonment of the whole scheme? But is that even desirable, given the huge resources spent on it?
The government has spent over Rs 50,000 crore for the issue of Aadhaar cards to citizens. A lot of time and energy have also been spent on this, but in the end, it is not even an identity proof. That is one of the reasons why we have appealed to the court to quash it.
In a nutshell, given all that has been done till now, what is the best possible future scenario for Aadhaar that you propose, and how likely is it?
In my view, with changes in the Bill, the Aadhaar card can be converted into a Citizenship Card. The executive order of the Parliament can change and the government may also venture into issuing Citizenship Card. But if Aadhaar is quashed, then the card which people have will become another bit of waste paper and the data which is already with the private agencies and the UIDAI will continue to be a matter of great concern.
How can the government make the most of the data collected from over 50 crore Indians? What do you suggest?
The government can use all this data to check how many illegal immigrants there are in India and send them back. There are many who speak Arabic, Bangla (not Bengali) and Islamic Urdu. My hunch is that there are over 4-5 crore illegal immigrants in India and Bangalore houses around a lakh. Their prime source of money is from the Arab and Gulf countries. Some could even be terrorists.
If a concerted effort is made, if there is an honest, hard working, dedicated, sincere and concerned official or government, a proper database of illegal immigrants is easy to prepare.