- Ms. Jyoti Pawar
Director – Legal & Regulatory Affairs
Bharti Hexacom Ltd NE
Bharti Airtel Ltd.
- Shri S.B. Khare
Principal GM (Regulation)
BSNL All India (except Delhi & Mumbai)
Bharat Sanchar Nigam Ltd
- Shri Rajat Mukarji
Chief Corporate Affairs Officer
M/s Idea Cellular Ltd Regulatory & Corporate Affairs
Idea Cellular Ltd
- Shri Harish Kapoor
Chief Regulatory Officer
Loop Telecom Ltd
- Shri L.K. Govil
MTNL Mahanagar Telephone Nigam Ltd
- Mr. Satbir Singh
CJM Consultancy Services Pvt.
- Shri Ramesh K
Sr. General Manager- Regulatory Aircel Group
Aircel Cellular Ltd
Subject: Non-compliance with the orders of Hon’ble Supreme Court of India w.r.t UID/Aadhaar by mobile service providers
With reference to the flood of messages that you have sent to mobile subscribers saying, “”Link your Aadhaar card to you number now to stay active! As per the Government of India, this is mandatory to enjoy continued services”.
With reference to the letter of Department of Telecommunications (DoT), Union Ministry of Communications is inconsistent with law and Hon’ble Supreme Court’s 5-Judge Constitution Bench order of October 15, 2015. This Department issued a letter dated 23 March, 2017 on the subject of “Implementation of Hon’ble Supreme Court orders regarding 100% E-KYC based re-verification of all existing subscribers” wherein it partially refers to the observation made in Hon’ble Court’s order of 2-Judge Bench dated February 6, 2017. The observation of the Hon’ble Court 2-Judge Bench to which the DoT letter refers is at para 5 of the order. It reads: “In view of the factual position brought to our notice during the course of hearing, we are satisfied, that the prayers made in the writ petition have been substantially dealt with, and an effective process has been evolved to ensure identity verification, as well as, the addresses of all mobile phone subscribers for new subscribers. In the near future, and more particularly, within one year from today, a similar verification will be completed, in the case of existing subscribers.” After citing this part of the Hon’ble Court order, the letter will have us believe that “This amounts to a direction which is to be completed within a time frame of one year.” Having reached this inference, DoT has sought UID/Aadhaar based verification of new mobile subscribers and re-verification of all existing mobile subscribers.
We wish to draw your attention to the fact that DoT has reached a flawed inference with regard to whether or not February 6, 2017 observation of 2-Judge Bench “amounts to a direction” or not because under no situation can the Union Ministry of Communications establish that 2-Judge Bench’s order will prevail over the 5-Judge Constitution Bench’s order.
We submit that after the 9th June 2017 verdict of Justice A K Sikri headed Bench of Hon’ble Supreme Court on 12 digit biometric Unique Identification (UID)/Aadhaar, DoT’s letter dated 23 March, 2017 has become invalid on three grounds. One, the letter is illegal as it is in violation of the Hon’ble Court’s 5- Judge Bench order. Two, the letter is inconsistent with Aadhaar Act, 2016. Three, the Hon’ble Court’s order of 9 June 2017 will prevail over the DoT letter dated 23 March, 2017.
We submit that nowhere does the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 provide for and authorise “seeding”’ of UID/Aadhaar numbers in databases. The Act provides for only two uses:
- Authentication, which means that biometric or demographic data can be sent to the UID’s CIDR (Central Identities Data Repository) to return a `yes/no’ reply to the question whether you are who you say you are.
- eKYC, which does something they had said they would never do, viz., give the data on their data base (except core biometric data – but they have no means of stopping any agency from collecting and keeping biometrics when it is given for authentication) to an Authorised Service Agency.
We submit that Section 8(2) (b) of the Act is categorical that an agency requesting authentication “ensure(s) that the identity information of an individual is only used for submission” to the Central Identities Data Repository (CIDR) of 12-digit biometric Unique Identification (UID)/Aadhaar Numbers “for authentication”. It does not authorise anyone to hold on to the number.
We submit that as per the order of Hon’ble Supreme Court’s 5-Judge Bench dated 15 October 2015, Aadhaar cannot be made mandatory for the purposes of linking to mobile phones. This has been reiterated by the Hon’ble Court on 9th June and 27th June, 2017.
We submit that the use of Aadhaar for linking to other databases, retention, storage or publishing is not only prohibited and is a punishable offence under the The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.
In view of the above, the following facts are crystal clear:
- UID/Aadhaar cannot be made compulsory because of orders of the Hon’ble Supreme Court;
- Aadhaar Act 2016 does not make UID/Aadhaar compulsory;
- CIDR of UID/Aadhaar numbers is not a verified or audited database,neither the UIDAI nor any other government authority certify it as a proof of identity, address, resident status or even the existence of any person;
- The linkage of UID/Aadhaar to mobiles will encourage imposters to obtain SIMs;
- In its counter affidavit in Hon’ble Supreme Court in the Lokniti Foundation v Union of Indiacase, the Union of India through Attorney General of India has stated that “currently Aadhaar card or biometric authentication is not mandatory for obtaining a new telephone connection”. The proper wording of the submission of Attorney General and Hon’ble Supreme Court’s order are important in light of the misreporting by media of the case last week. The headline for The Times of India news report, for instance, was “SC asks Centre to link all mobile numbers to Aadhaar within one year”. This constitutes a classic example of irresponsible reporting of Hon’ble Court’s order. In its petition, Lokniti Foundation, had prayed that “The Aadhar Card or such other biometric identification may be made compulsory for verification of the mobile phone subscribers that can ensure 100% verification of mobile phone,” but pursuant to the Attorney General’s submission, 2-Judge Bench of Hon’ble Court decided to not purposefully violate the orders of 3-Judge Bench and 5-Judge Constitution Bench that keeps getting a biometric UID/Aadhaar number voluntary but DoT chooses to do so by misinterpreting the order;
- It is germane to note that this August 11, 2015 order of a three-judge bench of Justices Chelameswar, S.A. Bobde and Nagappan observed, “The Union of India shall 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 Aadhaar card; The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen”;
- The order dated October 15, 2015, passed by the Chief Justice of India-headed five-judge Constitution Bench of Supreme Court in the ‘UID/Aadhaar’ matter, reads: “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”;
- This ‘voluntary Aadhaar’ position has been repeated by the Hon’ble High Courts of Kerala, Jammu and Kashmir, Karnataka and Andhra Pradesh;
- In a significant case, a Punjab and Haryana High Court bench headed by then Chief Justice A.K. Sikri (currently a judge of the Supreme Court) heard a matter challenging a circular making Aadhaar mandatory. The moment the court raised questions of laws, the circular making Aadhaar mandatory was withdrawn by the central government;
- It must be noted that in keeping with Hon’ble Court’s order West Bengal Assembly passed a unanimous resolution against Aadhaar number-related schemes in public interest;
- In a related case, the Unique Identification Authority of India (UIDAI) Vs Central Bureau of Investigation (CBI), the apex court passed an order dated March 24, 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.” This order in the UIDAI vs CBIcase is part of the “all the earlier orders passed by this Court” which is required to be followed “strictly”. It is quite evident that repeated orders issued by Hon’ble Court till June 27, 2017 make it clear that UID/ Aadhaar remains voluntary. Therefore, no one can be mandatorily asked to produce or link biometric Aadhaar for anything;
- The Attorney General of India has admitted in the affidavit filed on behalf of the Union of India that Aadhaar is not mandatory;
- On 9 June, 2017, the Hon’ble Court observed that even Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 does not make UID/Aadhaar mandatory. This was reiterated on 27 June, 2017;
- A three judge-bench headed by the Chief Justice of India HAS expressed concern about the collection of biometric data by private and foreign agencies on January 5, 2017.
- The UID/Aadhaar enrolment processcontinues to promise Indian residents that “Aadhaar enrolment is free and voluntary.” It must be noted that the existing legal provisions as per the Hon’ble Supreme Court’s order and the Aadhaar Act 2016 do not provide for seeding of Aadhaar with any scheme or project.
- The views of the National Human Rights Commission (NHRC) reveal that the biometric authentication scheme has a number of dangerous ramifications. NHRC’s view on the “need for protection of information”, “the possibility of tampering with stored biometric information” and “disclosure of information in the interest of national security” has been ignored.
In view of the above submission, following the Attorney General’s submission in the Hon’ble Supreme Court recorded in the February 6, 2017 order stating that UID/Aadhaar is not mandatory for telephone connections and keeping the orders of several Hon’ble High Courts in mind, there is a logical legal obligation for government and non-governmental agencies who are implementing UID/Aadhaar-related schemes and systems to revise their orders and circulars to comply with the Hon’ble Court’s order in letter and spirit.
Dr Gopal Krishna
Member, Citizens Forum for Civil Liberties (CFCL)
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