UID and NPR violate security, privacy and subverts constitution, say Justice Puttaswamy & Justice M. Rama Jois, Supreme Court issues notice

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UID and NPR violate security, privacy and subverts constitution, say Justice Puttaswamy & Justice M. Rama Jois, Supreme Court issues notice

States must withdraw from the MoU signed with questionable UIDAI  

Central Govt’s orders akin to ordinance used to bye-pass the legislative power, Justice Puttaswamy

Questionable nature of UID-NPR initiatives merit probe by media

New Delhi December 1, 2012: The Writ Petition (Civil) of Justice K S Puttaswamy, former judge of the Karnataka High Court that was heard on November 30, 2012 before Hon’ble Supreme Court’s bench of Chief Justice Altamas Kabir and Justice J. Chelameswar echoed some of the concerns raised by seventeen eminent citizens like Justice V R Krishna, Justice A P Shah, Prof. Upendra Baxi and the findings of the Parliamentary Standing on Finance in the matter of the implementation of world biggest ever biometric data based identification exercise. The bench issued an order in the case of Justice Puttaswamy (retd) VERSUS Union of India saying, “Issue notice on the writ petition as also on the prayer for interim relief. Leave is given to the petitioners to add additional grounds." The order is attached. 

The petition refers to a letter of a member of Parliament, Rajya Sabha, Justice M. Rama Jois, addressed a letter to the Prime Minister in this regard on 19.01.2011 pointing out to the constitutional impropriety of issuing Aadhar Numbers even when the Bill aforesaid was pending before the parliament. But surprisingly, to the said letter, he received a reply dated January 29, 2011 simply stating that the Prime Minister has received his letter without replying to the points raised in his letter.

Justice Puttaswamy is a former Judge of the Karnataka High Court since 1977 and after retirement he was Vice Chairman of Central Administrative Tribunal, Bangalore Bench, Bangalore. He was Chairman of Andhra Pradesh Administrative Tribunal, Hyderabad and also Chairman, Andhra Pradesh Backward Class Commission. The petitioner wants that the executive and legislature must function within the frame work of the Constitutional provisions so that Government “does not circumvent the legislature to avoid discussion, debate and voting in the Parliament and thereby render the legislature redundant or purposeless.”

The writ petition submitted, “the petitioner states that collecting Biometric information as a condition precedent for the issue of Aadhar number is an invasion of the right to privacy of citizens and therefore this can be done only by the law enacted by the Parliament and beyond the executive power.”

Taking note of the fact that “Aadhar number is issued under Section 3 of the (UID) Bill to a non citizen on the ground that he is residing in this Country, he becomes entitled to the fundamental rights guaranteed under Article 14 and 21 of the Constitution as fundamental rights under Article 14 and 21 are available to all persons in India and consequently also right to a remedy under Article 32 of the constitution of India”, the petition submits, “it is a matter of great security concern for the nation also. When such is the magnitude of the provisions of the Bill, still it is sought to be implemented by the exercise of executive power without any discussion, debate and the approval by both the Houses of the Parliament.” The petition refers to an appeal to parliamentarians – Reasons why you should oppose the UID published by Indian Social Action Forum (INSAF).

The petition asks the Supreme Court, “what is the contours of the executive powers of the Central Government under Article 73 and whether the executive power vested in the Union can be exercised so as to adversely affect the fundamental right to privacy and in a manner so as to bye-pass the legislative power of the Parliament? And render the Bill Purposeless. “The petitioners are constrained to state that the subject matter involved in the Bill is of serious consequences to the right to privacy of the citizens of the Country and also right to secrecy of their personal matter and involves colossal expenditure to the Union.”

It asks “whether the executive power could be used in a manner so as to make the legislative power redundant or in other words, whether by the exercise of executive power, the executive can circumvent the Parliament? However, having regard to the far reaching importance of the matter which is highly controversial and involves colossal expenditure, which is sure to become a waste if and when the Parliament rejects the Bill, or for any reason the scheme becomes impracticable rendering the enormous money spent till then a National Waste.”

The petition prays Hon’ble Supreme Court for issuance of “a writ in the nature of mandamus restraining the respondents from issuing Aadhaar Numbers by way of implementing its executive order dated 28.01.2009 which tantamount to implementing the provisions of the National Identification Authority of India Bill, 2010 pending before the Parliament until and unless the said Bill is considered and passed by the parliament and becomes an Act of parliament.” On the grounds that “The scheme formulated by the Central Government in its notification dated 28.01.2009 constituting Unique Identification Authority of India [UIDAI] and authorizing it to issue aadhaar numbers which adversely affect the fundamental right to privacy flowing from Article 21 of the constitution, cannot be implemented unless it becomes a law enacted by the Parliament.”

On the ground that “When the Government has introduced the National Identification Authority of India Bill, 2010 in the Rajya Sabha for the same purpose for which the executive order dated 28.01.2009 was issued, and the same has been rejected by the Standing Committee, Finance, to which it was referred, can still implement its executive order without bringing the Bill for consideration before the Parliament for purpose of discussion, debate and passing by it and before it became an Act of parliament.”

It may be noted that two UID related petitions are pending in the High Courts in Tamil Nadu and Maharashtra as well.

Citizens Forum for Civil Liberties (CFCL) has been campaigning against unregulated biometric, surveillance and identification technology companies since 2010 and had appeared before the Parliamentary Standing Committee, Finance in this regard. Justice M. Rama Jois, MP, Rajya Sabha had shared his views with the Parliamentary Committee as well.

CFCL has consistently underlined that the silence of the States which are quite vocal about threats to federal structure from Union Home Ministry‘s National Counter Terrorism Centre (NCTC) and National Intelligence Grid (NATGRID) that integrates 21 sets of databases in the matter of the creation of UID’s Centralized Identities Data Register (CIDR) disregarding the fact that Planning Commission’s CIDR and Home Ministry’s National Population Register (NPR) is inexplicable.

Given the fact that convergence of citizens’ personal sensitive information is being converged and is making right to have citizens’ rights dependent on State’s whims and fancies at the behest of ungovernable technology companies, States must un-sign the MoUs they have signed with the UIDAI whose legality is questionable to protect the rights of the citizens of their respective States. Although belated legislative assemblies, councils, panchayati raj institutions, Gram Sabhas, universities etc must examine the illegality and illegitimacy of biometric data based identifications of citizens and put a stay on the implementation of UID and NPR related projects. 

Media houses ought to consider deploying legal minds to examine the questionable nature of world's biggest biometric database (UID-NPR initiatives). If it is not done it will bring disrepute when students of journalism will undertake content analysis of the reporting of the issue which has seminal importance for the present and future generations.

 For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL) Mb: 9818089660, E-mail: krishna1715@gmail.com