Aadhaar Programme Will Hollow Out Constitution: Petitioners To Top Court

Agencies
January 18, 2018

New Delhi, Jan 18:  Terming Aadhaar as "an electronic leash", a senior lawyer on Wednesday told the Supreme Court that the government could completely destroy an individual by "switching off" the 12-digit unique identifier number.

The argument was made before a five-judge Constititution bench headed by Chief Justice Dipak Misra which commenced hearing on a batch of petitions challenging the constitutional validity of the government's flagship Aadhaar programme and its enabling Act of 2016.

However, the bench, also comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, countered senior advocate Shyam Divan, asking whether the state "cannot say that it has every right to find out the number of schools, children or the real beneficiaries of a welfare scheme and verify the real beneficiaries of huge funds which it is spending, it needs Aadhaar number. This is a valid argument."

It posed whether the government does not have the right to say that it was spending crores of rupees on welfare schemes and needed to verify whether benefits reached the needy and the leakages or pilferage of resources stopped.

The bench also asked what will happen to the biometric data collected before the Aadhaar Act, 2016 -- whether they will be destroyed if the petitioners challenging the validity of the Aadhaar programme succeeded.

Mr Divan, who opened arguments on behalf of petitioners, said that through a succession of "marketing stratagems" and by employing "smoke and mirrors", the government has rolled out a "little understood" programme that seeks to "tether every resident of India to an electronic leash".

"This leash is connected to a central database that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the State to stifle dissent and influence political decision making," he argued.

Mr Divan said that "the State is empowered with a 'switch' by which it can cause the civil death of an individual. Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual."

He said the petitioners are certain that if the Aadhaar Act and the programme were allowed to operate "unimpeded", it would "hollow out" the Constitution, particularly the great rights and liberties it has assured to its citizens.

Mr Divan is representing several petitioners like former Karnataka High Court judge Justice KS Puttaswamy, several activists Aruna Roy, Shantha Sinha and veteran CPI(M) leader VS Achuthanandan.

Mr Divan, who argued through the day and would continue his submissions tomorrow, said "a person cannot avail the facility of a welfare scheme, if the finger prints do not match the templates set by UIDAI," he said, adding that for seven years, biometric data of individuals were collected without any legal framework but only on executive orders.

Moreover, over three crore citizens have not been able to register their biometric data, he said and asked how can the government exclude such a big part of the population who could not be registered without any fault on their part, from availing benefits.

Mr Divan contended that at its core, Aadhaar alters the relationship between the citizen and the State and diminishes the status of the citizen.

Observing that the case at hand was unique as the programme was itself without any precedent, the senior lawyer said "no democratic society has adopted a programme that is similar in its command and sweep. There are few judicial precedents to guide us. The closest foreign cases have all been decided in favour of the citizens, repelling the invasive programmes by the State."

He said this case was about a new technology that the government has sought to deploy and a new architecture of governance has been built on this technology.

A people's Constitution will transform into a State Constitution, Mr Divan said and asked whether the Constitution allowed the State to embrace this new programme or whether the key document repudiates "the giant electronic mesh that Aadhaar was creating."

He also expressed concern over extending the Aadhaar platform to private corporations, the degree of tracking and extent of profiling will "exponentially increase".

"Rights freely exercised, liberties freely enjoyed, entitlements granted by the Constitution and laws are all made conditional. Conditional on a compulsory barter. The barter compels the citizen to give up her biometrics 'voluntarily', allow her biometrics and demographic information to be stored by the State and private operators and then used for a process termed as 'authentication'," he said.

Mr Divan said the Constitution balances rights of an individual against the State interest and "Aadhaar completely upsets this balance and skews the relationship between the citizen and the State...".

"The Constitution is not a charter of servitude. Aadhaar, if allowed to roll out unimpeded reduces citizens to servitude," Mr Divan said.

Just before the end of the hearing, he said that if Aadhaar Act is upheld, then in the alternative, no citizen should be deprived of any right or benefit for lack of an Aadhaar card.

The top court had on December 15 last year extended till March 31 the deadline for mandatory linking of Aadhaar with various services and welfare schemes of all ministries and departments of the Centre, states and union territories.

A nine-judge constitution bench of the top court had last year, held that Right to Privacy was a Fundamental Right under the Constitution. Several petitioners challenging the validity of Aadhaar had claimed it violated privacy rights.

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News Network
November 15,2024

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Union minister Amit Shah on Friday, November 15, said PM Narendra Modi will amend the Waqf Act despite opposition from leaders like Uddhav Thackeray and Sharad Pawar.

"Modi ji wants to change the Waqf Board law, but Uddhav ji, Sharad Pawar and Supriya Sule are opposing it," Shah said, addressing a rally at Umarkhed in Maharashtra's Yavatmal district.

"Uddhav ji, listen carefully, you all can protest as much as you want, but Modi ji will amend the Waqf Act," he said. Shah said there are two camps in the November 20 Maharashtra assembly polls, one of 'Pandavas' represented by the BJP-led Mahayuti and the other of 'Kauravas' represented by Maha Vikas Aghadi.

"Uddhav Thackeray claims that his Shiv Sena is the real one. Can the real Shiv Sena go against renaming Aurangabad to Sambhajinagar? Can the real Shiv Sena go against renaming Ahmednagar to Ahilyanagar? The real Shiv Sena stands with the BJP," Shah said.

"Rahul Baba used to say that his government would credit money in the accounts of the people instantly. You were unable to fulfil your promises in Himachal, Karnataka, and Telangana," he said.

Shah said the Mahayuti alliance has promised that women will get Rs 2,100 per month under the Ladki Bahin Yojana. "Kashmir is an integral part of India and no power in the world can snatch it away from us," Shah said.

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News Network
November 12,2024

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The Taliban regime has appointed Ikramuddin Kamil as the acting consul in the Afghan mission in Mumbai, Afghan media has reported.

It is the first such appointment made by the Taliban set up to any Afghan mission in India.

There was no immediate comment from the Indian side on the appointment that came.

The Ministry of Foreign Affairs of Afghanistan has announced the appointment of Kamil as the acting consul in Mumbai, the Taliban-controlled Bakhtar News Agency reported on Monday, citing unnamed sources.

"He is currently in Mumbai, where he is fulfilling his duties as a diplomat representing the Islamic Emirate," it said.

The appointment is part of Kabul's efforts to strengthen diplomatic ties with India and enhance its presence abroad, the media outlet said

Kamil holds a PhD degree in international law and previously served as the deputy director in the department of security cooperation and border affairs in the foreign ministry, it said.

He is expected to facilitate consular services and represent the interests of Afghanistan in India, the report added.

Kamil's appointment comes days after the external affairs ministry's point-person for Afghanistan held talks with the Taliban's acting defence minister, Mullah Mohammad Yaqoob, in Kabul.

Sher Mohammad Abbas Stanikzai, the Taliban's deputy foreign minister for political affairs, also posted on X about Kamil's appointment.

The appointment of Kamil is seen as part of efforts to facilitate consular services to the Afghan population in Mumbai.

There has been almost negligible presence of diplomatic staff at the Afghan missions in India.

Most of the diplomats appointed by the Ashraf Ghani government have already left India.

In May, Zakia Wardak, the seniormost Afghan diplomat in India, resigned from her position after reports emerged that she was caught at the Mumbai airport for allegedly trying to smuggle 25 kg of gold worth Rs 18.6 crore from Dubai.

Wardak had taken charge as the acting ambassador of Afghanistan to New Delhi late last year, after working as the Afghan consul general in Mumbai for more than two years.

She took charge of the Afghan embassy in New Delhi last November, after the mission helmed by then ambassador Farid Mamundzay announced its closure.

Mamundzay, who was an appointee of the Ghani government, had moved to the United Kingdom.

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News Network
November 13,2024

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New Delhi: The Supreme Court took a firm stance on ‘bulldozer justice’ today, affirming that the Executive cannot bypass the Judiciary and that the legal process must not prejudge the guilt of an accused. In a significant judgment, the bench led by Justices BR Gavai and KV Viswanathan set new guidelines for demolition practices, responding to petitions challenging the controversial bulldozer actions taken against individuals accused of crimes.

The rise of this practice, termed 'bulldozer justice,' has seen authorities in various states demolish what they claim to be illegal structures belonging to accused individuals. However, multiple petitions questioned the legality and fairness of this approach, bringing the matter before the court.

Justice Gavai highlighted that owning a home is a cherished goal for many families, and an essential question was whether the Executive should have the authority to strip individuals of their shelter. “In a democracy, the rule of law protects citizens from arbitrary actions by the state. The criminal justice system must not assume guilt,” stated the bench, underscoring that due process is a fundamental right under the Constitution.

On the principle of separation of powers, the bench reinforced that the Judiciary alone holds adjudicatory powers and that the Executive cannot overstep these boundaries. Justice Gavai remarked, “When the state demolishes a home purely because its resident is accused of a crime, it violates the doctrine of separation of powers.”

The court issued a strong warning about accountability, stating that public officials who misuse their power or act arbitrarily must face consequences. Justice Gavai observed that selectively demolishing one property while ignoring similar cases suggests that the aim might be to penalize rather than enforce legality. “For most citizens, a house is the product of years of labor and dreams. Taking it away must be an action of last resort, thoroughly justified,” he said.

In its directives under Article 142 of the Constitution, the Supreme Court established new demolition guidelines. These include:

Mandatory Show-Cause Notice: No demolition should occur without first issuing a show-cause notice. The person served has a minimum of 15 days or the duration stated in local laws to respond.

Transparency of Notice Content: The notice must include specifics about the alleged unauthorized construction, the nature of the violation, and the rationale for demolition.

Hearing and Final Order: Authorities are required to hear the response of the affected individual before issuing a final order. The homeowner will have 15 days to address the issue, with demolition proceeding only if no stay order is obtained from an appellate authority.

Contempt Proceedings: Any breach of these guidelines would lead to contempt proceedings. Officials who disregard these norms will be personally accountable for restitution, with costs deducted from their salaries.

Additionally, the court mandated that all municipal bodies establish digital portals within three months, displaying show-cause notices and final orders on unauthorized structures to ensure public transparency and accountability.

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