Supreme Court Judgments in India against biometric ID card
15.07.2014
As if the threat of a Rs100,000 fine and 5-year imprisonment were not enough, the Mauritius National Identity Card (MNIC) unit is now resorting to TV clips threatening the 200,000 people that haven't taken out their new biometric id cards yet that they will not be able to buy a house, get a SIM card or obtain credit to buy a fridge if they do not have the new card after the 15th of September this year. Such threats and practices have already been pronounced illegal by the Indian Supreme Court. The Supreme Court judgements could weigh heavily in the Constitution cases being heard in Mauritius given that Indian Supreme Court judgements are often quoted in Mauritian Courts and carry weight given the shared colonial history and law system and traditions in Mauritius and India.
Mandatory ID card illegal for basic services
There has been huge opposition to the biometric ID card in India that includes fingerprinting, an iris scan and a biometric facial photo. The ID card, called Aadhar card in India was at first introduced as a voluntary ID card to “facilitate” State payments and to diminish corruption in the public sector. It was then made mandatory for public services such as pensions, subsidies on cooking gas, agricultural subsidies for planters, for public sector workers’ wages and for marriage and other civil status registration. So in January 2014, enrolment for this “voluntary” Aadhar card had reached 576.16 million making the Aadhar card database one of the biggest in the world.
In September last year, the Supreme Court made an order to stop public officers refusing public services to people without Aadhar cards. The Supreme Court had to re-issue an Order in March this year as there were so many cases of officers continuing to demand Aadhar cards in exchange for basic cervices. Judge Chauhan who headed the bench declared "I received a lot of letters which say Aadhaar card is mandatory despite court orders. One person in a letter said his marriage is not registered because of the lack of Aadhaar card, (others) say they can't get their properties registered. We had already passed orders saying no one should suffer for not having Aadhaar card," (see article on http://www.dailymail.co.uk/indiahome/indianews/article-2588303/Supreme-Court-demolishes-Aadhaar-card-Judges-rule-card-NOT-mandatory-government-subsidies.html#ixzz37Wgw3gwq)
It is interesting to note that one of the Supreme Court public interest litigations (PIL) was filed by aretired Karnataka High Court judge, Justice KS Puttaswamy, and a retired army general Maj. Gen. (retd) SG Vombatkere.
Goa CIB police seeks access to entire Goa fingerprint database
The Indian experience of ID cards also exposes another terrible danger of biometric id cards that LALIT has warned about: in Goa after a 7-year child was raped in a school, the CIB police (similar to the Mauritian CID) requested access to the entire Aadhar card database of Goa to cross-match fingerprints it had found on the crime scene. A school is an open place used by children, teachers, parents, school staff and visitors. Anyone on the premises could have become a suspect. In the case, even the biometric technology expert defenders of the Aadhar card database admit that there was a 0.057% occurrence of false identification. The case found its way to the Supreme Court. The Supreme Court Order of March this year decreed that a person's data given to one department cannot be shared with another department except with the written consent of that person.
The Unique Identification Authority of India (UIDAI) started out, like the MNIC unit, with arguments that: "The contention that the scheme impinges on the numerous fundamental rights including the right to privacy is denied. The UIDAI seeks only very basic data on demographics like name, age or date of birth, gender and postal address. In case of biometric data, the fingerprint scans and iris are essential to undertake the de-duplication ….". When the UIDAI got confronted with requests from CIB police to give them access to the fingerprints of all adult citizens in a State, it was then that the UIDAI started realising the dangers of centralising personal information and biometric data of citizens. They refused to give CIB and Forensic access to fingerprints and took the issue to Court. The UIDAI fell into the trap of believing government propaganda that privacy of Aadhar card holders would be protected by the State. It seems the MNIC unit is falling into the same trap.
LALIT is has pleasure in publishing a copy of the two Court Orders:
First Supreme Court Order of September 2013:
ITEM NO.5+56 Court No.5 SECTION PIL
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
WRIT PETITION (CIVIL) NO(s). 494 OF 2012
JUSTICE K.S.PUTTASWAMY(RETD)& ANR Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
(With appln(s) for stay)
WITH T.P.(C) NO. 47-48 of 2013
(With appln(s) for stay and office report)
(Appln. for deletion of the name of petitioner no. 1)
T.P.(C) NO. 476 of 2013
(With appln(s) for stay and office report)
W.P.(C) No. 829 of 2013
(With appln(s) for interim relief and office report)
Date: 23/09/2013 These Petitions were called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE B.S. CHAUHAN
HON'BLE MR. JUSTICE S.A. BOBDE
For Petitioner(s) Mr. Anil B. Divan, Sr. Adv.
Mr. Ankit Goel, Adv.
Mr. Ranvir Singh, Adv.
Mr. Sanjay Yadav, Adv.
Mr. Anish Kumar Gupta,Adv.
Ms. Deepshikha Bharati, Adv.
Mr. S.S. Shamshery, Adv.
Mr. Rajeev Kr. Singh, Adv.
Mr. Nachiketa Joshi, Adv.
Mr. P.R. Kovilan Poongkuntran, Adv.
Mrs. Geetha Kovilan, Adv.
Mr. Shyam Divan, Sr. Adv.
Mr. Pratap Venugopal, Adv.
Ms. Meenakshi Chauhan, Adv.
Mr. Varun Singh, Adv.
Mr. Gaurav Nair, Adv.
for M/s. K.J. John & Co.
For Respondent(s) Mr. Mohan Parasaran, SG
Mr. L. Nageshwar Rao, ASG
Mr. Farrukh Rasheed, Adv.
Mr. Alok Mishra, Adv.
Mr. D.S. Mahra ,Adv
-2-
UPON hearing counsel the Court made the following
O R D E R
Issue notice in W.P.(C) No. 829/2013.
Application for deletion of the name of petitioner no. 1 in
T.P.(C) Nos. 47 of 2013 is allowed.
T.P.(C)nos. 47-48 of 2013 and T.P.(C) No. 476 of 2013 are
allowed in terms of the signed order.
All the matters require to be heard finally. List all
matters for final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting
the Adhaar card inspite of the fact that some authority had issued
a circular making it mandatory and when any person applies to get
the Adhaar Card voluntarily, it may be checked whether that person
is entitled for it under the law and it should not be given to any
illegal immigrant.
| (DEEPAK MANSUKHANI) |(M.S. NEGI) |
| Court Master | Court Master |
(Signed order is placed on the file)
Second Supreme Court Order of March 2014
ITEM NO.57 COURT NO.4 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl) No(s).2524/2014
(From the judgement and order dated 26/02/2014 in CRLWP No.10/2014, of The
HIGH COURT OF BOMBAY AT PANAJI)
UNIQUE IDENTIFICATION AUTH.OF INDIA &ANR Petitioner(s)
VERSUS
CENTRAL BUREAU OF INVESTIGATION Respondent(s)
(With appln. for exemption from filing c/c of the impugned Judgment and
office report)
Date: 24/03/2014 This Petition was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE B.S. CHAUHAN
HON'BLE MR. JUSTICE J. CHELAMESWAR
For Petitioner(s) Mr.Mohan Parasaran, SG
Mr.Rakesh Khanna, ASG
Mr. Zohen Hossain, Adv.
Mr. Alok Mishra, Adv.
Mr. D.S. Mahra,Adv.
For Respondent(s)
UPON hearing counsel the Court made the following
O R D E R
Issue notice.
In addition to normal mode of service, dasti service, is permitted.
Operation of the impugned order shall remain stayed.
In the meanwhile, the present petitioner is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing.
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 matter i.e. WP(C)
No.494/2012.
[Usha Bhardwaj] [M.S. Negi]
A.R.-cum-P.S. Assistant Registrar
