Aadhaar Scheme itself is bad and this leads to departing from determinist system to probabilistic system- Shyam Divan in Supreme Court.
January 18, 2018
Hearing of Writ Petitions challenging implementation of Aadhaar Card started
in Supreme Court continued today also. Yesterday, while addressing the Court Attorney General informed
the court that there are 27
Writ Petitions related to Aadhaar card pending in the court four hearing. He
suggested that it will be good if the court fixes specific time limit for
counsels to complete their argument.
But Mr. Shyam Divan, Senior Advocate appearing for a batch of petitioners said that because of
complexity and modules made it is difficult to maintain time. He said that
Aadhaar project has been challenged and it has already sped 7 years. Even the
Statues itself is under challenge. The Statues cover some part of projects not
all. He said that he will be arguing for 3 petitioners have who filed petitions
in 2013, 2016 and 2017.
He submitted to the court that said that Aadhaar scheme will track citizens and influence their behaviour.
It Diminishes status off citizen. The citizen is denied most essential services
after implementing Aadhaar. It completely upsets constitutional balance. Every
day transactions are being recorded by the state.
He added that the Aadhaar act has been passed as a money bill. Some of the
important points to be considered are whether aadhaar database compromises
national security. What is the consequences of breaching order of this court.
Elements of aadhaar not within the act. Different authorities have already
issued 139 notifications under aadhaar act without considering the fact that
there is a stay from the apex court for implementation of aadhaar scheme. Actions
of Union of India mandating aadhaar link to mobile, pan are without considering
the case pending in the Supreme Court.
He said that Personal body autonomy of citizens should not be hampered. Right
of citizens should left alone.
On 18.1.2009 UAID was constituted. For 7 years worked under an administrative
direction. In September 2010 the program launched. In 2013 the Supreme Court
said its order that no person should suffer by the implementation of Aadhaar
scheme. All the authorities were directed to modify forms etc. The Supreme Court
allowed use of Aadhaar number for few schemes and directed that information
should not be used for any other purpose. The Court also directed that Union of
India will strictly follow all orders passed by the court. As per the order the
Aadhaar card is not mandatory till final order in this matter.
But from January 2017 onwards Union of India issued various notifications to
make aadhaar mandatory. Section 139aa of the Income tax was introduced. On
23.3.2017 notification issued for mobile verification. On 1.6.2017 it introduced
for prevention of money laundering, made it mandatory for bank account for
investment and life Insurance Policies. As per the act Aadhaar card is voluntary
but it is being implemented as compulsory. Now the verdict of right to privacy
is also there.
Large no of people working in field found that Aadhaar is using for extrusion.
Those who are doing manual works are not able to register their biometrics. In
village areas citizens are required to travel to particular area of long
distance for authentication. This creates unnecessary inconvenience to aged and
physically challenged people.
He also said that some times people need to give finger print 3 or 4 times. The
person may not be able to understand whether the account has been debited more
than one time as the finger print is giving more than one time. He informed the
court that 3 retired officers of Indian military have filed petition and warned that implementation of Aadhaar will be a threat to national security.
While implementing the Aadhaar scheme initial expectation was that rejection due
to duplication will be very law. But actually it is 6.23 crore as on 15.1.2017.
He said that for verification a deterministic system should be there. UIDAI
capture 10 finger prints, iris scan and photo. They don't compare identity.
They will assess it on the basis of value judgment, which do not work 100%.
This leads to departing from determinist system to probabilistic system. Further
there was no Government control when the information was collected. The process
initiated without statutory backing. This whole program is completely bad till
the statues come into force. The statute cannot be with retrospect effect. His
answer to the question of court that if somebody travels to other country they
will have record biometrics was that in other countries it will be recorded at
entry point only and is not a a continuous process.
He added that design of Aadhaar scheme itself is bad. If the identity is stolen,
it cannot be replaced. The argument that it will work as identity is not
sustainable as there was only less than 3 lakh persons were in India without any
identity documents in 2015. In fact United Kingdom has already abandoned the
project. The larger question arises if the speaker certifies a bill as money
bill whether the court can question it.
The other issue raised by Mr. Shyam Divan, Sr. Advocate is that scanning at the time of making Aadhaar card was done with high quality HD cameras but at the time of verification of aadhaar data low quality scanners are being used in different centers. It may cause rejection. Further the following points are also important:
1.Integrity of the process
2.Integrity of information
3.Integrity of Inversion of fundamental rights
4.Privacy concern Personal autonomy and information Compulsory seeking information
i). There is nothing in the form which suggests it is voluntary.
ii). No mention of biometrics in the form for preparing aadhaar
iii). No of declaration and verification are there.
All the information are being to given to private parties and There is no
government verification there at all. Further Uidai has no contract with the
agent. There is no statutory requirement and it is entirely private. As per
aadhaar policy a resident can enroll with an introducer if no valid documents
are available. Even Bank statements and pass book etc going to private party.
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