By Gopal Krishna*
Some 639 organizations registered over 1.88 lakh employees, over 5000 active devices in contempt of Supreme Court’s Constitution Bench order on the subject of 12-digit biometric Unique Identification (UID)/Aadhaar Number. This has been revealed by a government document titled “Aadhaar: Dynamics of Digital Identity”. The Court reiterated its order on September 14, 2016 after the passage of The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 underlining the fact that the order is the fact that the last order of the Supreme Court is the law of the land.
The Court’s three judge bench expressed concern about collection of biometric data by private and foreign agencies on January 5, 2017. In case any Indian resident or agency is facing problems due to any order which are making biometric Unique Identification (UID)/Aadhaar Number compulsory, one can use the order to save oneself from illegitimate, illegal and unconstitutional instructions or circulars.
The UID/Aadhaar Enrolment continues to make a promise to Indian residents that “Aadhaar Enrolment is free and voluntary.” It is available at https://uidai.gov.in/images/uid_download/enrolment_form.pdf. Besides Supreme Court, Punjab and Haryana High Court’s observation in a written order compelled central government to withdraw its circular making UID/Aadhaar mandatory.
In a blatant disregard of Court’s directions, Ministry of Finance, Government of India has communicated a Common Strategy to be adopted by Banks to achieve the targets under Aadhaar Seeding in mission mode. Department of Financial Services (DFS), Ministry of Finance, Government of India vide letter F.No. 21(23)/2014-FI (MISSION) dated 13.07.2016 has fixed the timelines for achieving 100% Aadhaar seeding of all the accounts and common strategies to be adopted by all the banks have also been communicated.
Government of India has informed that Aadhaar will be used as identifier for all centrally funded scholarship schemes and the amount will be directly transferred to aadhaar linked bank account. Hence, schools have also been directed to collect aadhaar mandate and send the same to concerned bank branches. All the banks are requested seed the aadhaar received from schools on priority basis. Such violation of Court’s order is recorded in the minutes of State Level Bankers’ Committee, Puducherry convened by Indian Bank, a Public Sector, Government of India Undertaking. The minutes are available at http://www.indianbank.in/slbc/SLBC19082016agenda.pdf
The existing legal provisions as per Court’s order and the Aadhaar Act 2016 do not provide for seeding of UID/Aadhaar with any scheme or project.
It is instructive to observe that Election Commission of India is the only agency that has complied with the Supreme Court’s orders in letter and spirit. There is a compelling logic for the Court to consider passing an order to follow the order of the Election Commission as a template should. The Commission revised its order dated February 27, 2015 on August 13, 2015. Its revised order reads: “All further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently under NERPAP shall be suspended with immediate effect till further directions from the Commission. In other words, henceforth no more collection of Aadhaar Numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP.” NERPAP stands for National Electoral Rolls Puriﬁcation & Authentication Programme. The revised order is available at http://eci.nic.in/eci_main1/Current/NERPAP-AADHAAR_14082015.pdf
The list of notifications and circulars issued by the UIDAI (https://www.uidai.gov.in/beta/legal-framework/acts/notifications.html and https://www.uidai.gov.in/beta/legal-framework/acts/circulars.html) indicate that there were no steps taken to strictly follow all the earlier orders passed by this Court commencing from September 23, 2013.
The application programming interfaces (API) Aadhaar authentication usage from (https://uidai.gov.in/images/FrontPageUpdates/aadhaar_authentication_api_1_6.pdf), copy of the web page http://jeemain.nic.in/webinfo/Public/Home.aspx and the UIDAI press release of 29.11.2016 indicates they have directed regional centres to enrol Joint Entrance Examination aspirants on priority. This is discriminatory and vindicates the apprehensions expressed by National Human Rights Commission (NHRC) in its submission before the Parliamentary Standing Committee on Finance that had examined and trashed the Aadhaar Bill 2010.
The Aadhaar authentication description (https://uidai.gov.in/images/authentication/d2_authentication_framework_v1.pdf page 4) ignores modification of its authentication framework and consequently the forms/circulars/likes/API so as to not compulsorily require the Aadhaar number. A copy of the UIDAI events webpage https://www.uidai.gov.in/beta/media-center/aadhaar-in-news/events-workshops.html that indicates that the UIDAI is running Sensitization Workshop on Aadhaar Seeding and Authentication Services every fortnight. A circular K-11022/188/2015-UIDAI(Auth-II) that also indicates that the UIDAI has not restricted its activities to those permitted by the Court.
The UIDAI webpage for its advertisements (https://www.uidai.gov.in/beta/media-center/media/advertisement.html) that clearly ignores indicates that it has ignored the requirement to 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 UID/Aadhaar Number.
The Aadhaar authentication description (https://uidai.gov.in/images/authentication/d2_authentication_framework_v1.pdf page 4) that has ignored modification of its authentication processes and APIs so that Aadhaar identification cannot be insisted upon by the various authorities. The URL athttps://www.uidai.gov.in/beta/authentication/aadhaar-financial-inclusion/aadhaar-seeding.html shows UIDAI has undertaken multiple activities to ensure Aadhaar seeding in facilitated in various scheme databases.
The Introduction to Aadhaar Authentication from its Authentication API (https://uidai.gov.in/images/FrontPageUpdates/aadhaar_authentication_api_1_6.pdf page 3) show that ignores any modification of its authentication API or KYC frameworks so that the production of an UID/Aadhaar Number will not be condition for obtaining any benefits otherwise due to a citizen.
The operation model overview for the Aadhaar authentication (https://www.uidai.gov.in/beta/authentication/authentication/operation-model.html) that continues to ignore altering its authentication and KYC services to ensure that the Aadhaar card Scheme remains purely voluntary and it cannot be made mandatory.
The API Aadhaar authentication usage from (https://uidai.gov.in/images/FrontPageUpdates/aadhaar_authentication_api_1_6.pdf) that have not been modified to restrict the access of the authentication and KYC services. A copy of the list of live Authenticated User Agencies (AUA), Authentication Service Agencies (ASA), e-KYC User Agencies (KUA) indicates that hundreds of private parties have been allowed by the UIDAI to access the Aadhaar number and associated data thus not restricting the use of the Aadhaar number. UIDAI web pagehttps://www.uidai.gov.in/beta/authentication/aadhaar-financial-inclusion/aadhaar-as-financial-address.html shows that UID/Aadhaar Number is being promoted as a financial address. The UIDAI web pagehttps://www.uidai.gov.in/beta/authentication/aadhaar-financial-inclusion/aadhaar-authentication-for-financial-transactions.html promotes Aadhaar authentication for financial transactions to promote electronic payments.
A Press Note titled 10 crore Aadhaars linked to Bank Accounts issued by the UIDAI indicates that they have not restricted the use of the UID/Aadhaar Number. One spreadsheet on the National Payments Corporation of India (NPCI)’s website highlights that the UIDAI has been providing authentication and KYC services to the National Payments Corporation of India, a non government company for various banking services including:
- APBS Credit (Disbursement based on UIDAI No.) including ACH Debit, ACH Credit, NACH Credit and NACH Debit.
- CTS Cheque Clearing
- RuPay Card usage at (POS)
- RuPay Card usage at (eCom)
- AEPS (Inter Bank) Txn over Micro ATM (e.g. Cash withdrawal/ Cash Deposit)
- AEPS (Inter Bank) Txn over Micro ATM (e.g. Balance inquiry/ Mini statement etc.) including AEPS (Intra Bank) UIDAI Authentication over Micro ATM, eKYC Verification (Successful Txn) and Demographic Queries(Authenticated UID)
- Account No. Verification Service under ACH including Old Account Confirmation (OAC) service under ACH, Customer NACH (Earlier ECS) Mandate Processed, Aadhar Mapper Enabled Services (AMES), Aadhar Status Verification Services, Aadhaar OverDraft Verification Service (AOVS), Aadhaar Seeding Queries
The operation model overview for the Aadhaar authentication (https://www.uidai.gov.in/beta/authentication/authentication/operation-model.html) indicates that there is no provision to verify the written consent of any person to share biometric information.
It may be noted that UID/Aadhaar Number and related schemes are presently under challenge before the Supreme Court of India vide a batch of petitions led by W.P (C) 494/2012 and the Court after hearing the parties has passed a series of interim orders starting the 23rd September 2013 and the last of which was passed on 15.10.2015 which,inter alia, states as follows.
“4. We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013.
5. 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.”
It is noteworthy that in the related case the Supreme Court in SLP (CRl) 2524/2014, Unique Identification Authority of India Vs CBI passed an order dated 24.3.2014 which reads as follows:
“More so, 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. Tag and list the matter with main mater i.e. WP (C) No. 494/2012.”
It is eminently clear that all the orders of Supreme Court are still in force as per Court’s order of October 15, 2015 and they will remain in force till the time Court itself does not waive them. The Court’s order makes it clear that UID/Aadhaar Number remains voluntary.
It must be noted that whenever circulars and letters of central and state government agencies been challenged and contested they have consistently withdrawn their circulars and letters. University Grants Commission (UGC), Union Ministry of Human Resource Development, Government of India has “clarified that any student who have applied or wishing to apply for scholarship/fellowship shall not be denied benefit thereof due to non availability of Aadhaar No./Card.” The revised PUBLIC NOTICE dated September 14, 2016 is available at http://www.ugc.ac.in/pdfnews/7057426_UGC-Clarification-reg-AADHAAR-14.09.2016.pdf.
It must also be noted that responding to 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 has been withdrawn. In its order the bench of Justice A K Sikri, Chief Justice and Justice Rakesh Kumar Jain dated February 19, 2013 had not 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 Court had 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.”
In view of the Court’s orders, the relevant facts regarding UID/Aadhaar Number are as under:
- UID/Aadhaar cannot be made compulsory because of orders of Supreme Court even after ‘coming into force’ of Aadhaar Act, 2016
- Passage of the Act by Parliament does not automatically imply that any agency can make UID/Aadhaar compulsory disregarding Court’s orders.
- Even after notification of ‘coming into force’ of Aadhaar Act, 2016, UID/Aadhaar, it cannot be made compulsory unless Supreme Court waives its order on request from the Union of India.
Therefore, no one can be asked to produce UID/Aadhaar Number for Government subsidies/Scholarships/Fellowships and for Attendance. Given the fact that the order of Court dated September 14, 2016 was passed after the enactment of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, it becomes crystal clear that Court’s order is the law which is in force.
This revised order of the Election Commission is a model order. It demonstrates how to comply with Court’s order in letter and spirit. All the 639 organisations who are implementing Aadhaar related schemes and systems are under a legal obligation to issue similar orders.
It is unbecoming of a government to be proven repeatedly wrong in the highest court of law. It signals illegitimate advances of the State which does not wish to be limited by Constitution of India. Supreme Court’s September 2016 order refers to the order of the Chief Justice of India headed 5-Judge Constitution Bench dated October 15, 2015 that keeps UID/Aadhaar Number voluntary since September 2013.
*Citizens’ Forum for Civil Liberties (CFCL), which has been campaigning against surveillance technologies since 2010, appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010