As per the analysis of the data revealed in the parliament on February 8, 2024 by MoS, Ministry of External Affairs, only 9,26,24,661 Indians held passports in 2024, which is less than 10 percent of the population. This means that NTA is virtually forcing students to provide Aadhar ID, violating the landmark privacy judgement of the apex court delivered in Justice K.S.Puttaswamy (Retd) vs Union of India in 2018 (also known as Aadhaar judgement). In the Aadhaar judgment while the Supreme Court had upheld the constitutional validity of Aadhaar Act, 2016, it also struck down some of the provisions of the Act and declared that the ambit of Aadhaar should be limited. It had noted that the government cannot make Aadhaar a prerequisite for availing non-welfare benefits or services.

Why NTA should provide other options to students

CUET UG is a common entrance test for hundreds of universities in the country, including central, state, and private universities for various courses and programmes. Its test centres are spread across the states covering virtually the whole of the country. Given the sheer number of candidates who apply for CUET entrance test across the country, it is imperative that the process remains as inclusive, open, and least intrusive as possible. In 2023, a total of 16 lakh students had registered for CUET UG across 242 universities, revealing the scale of the entire exercise.

In the circular issued by the Unique Identification Authority of India (UIDAI) on September 5, 2018, which is a nodal agency for Aadhar, it noted that “It must be ensured that no children are deprived/denied of their due benefits or rights for want of Aadhaar. Some instances have come to our notice that few schools are denying admission to children for want of Aadhaar. Such denials are invalid and not permitted under the law. It is also to be ensured that no child should be denied admission and other facilities for lack of Aadhaar.”[1]

Thus, UIDAI had recognised that Aadhar was contributing to the exclusion of school students. In the present case, NTA can be seen doing something similar, which was earlier flagged by UIDAI at the school level. While NTA may justify its conduct, arguing that in the case of school students, they were minor children and therefore the comparison cannot be drawn between the two cases. Nonetheless, this does not address the issue of compulsory requirement of Aadhar, since for availing non-welfare services only voluntary provision is provided in the law. In addition, a minor who has created her Aadhar card with the consent of her guardian is provided with an option to cancel the same upon attaining majority age.

The concern also arises as NTA refuses to consider other government issued identity proofs, including voter ID, driving licence, education board certificate, among others. This is problematic as the aforementioned documents are valid legal documents, but in spite of that, NTA refuses to accept them, raising concerns over legitimacy of non-Aadhar ID proofs.

Additionally, the privacy risks posed due to the collection and use of Aadhaar data is another aspect which NTA needs to consider. As the Aadhar details are linked with others private information like PAN Card, bank account, driving licence, to name a few, NTA ought to be well aware of the risks posed due to leakage or misuse of Aadhar data. Furthermore, the privacy policy is not readily shown on CUET UG registration website, which makes it difficult to assess the standards and policies adopted by NTA to secure and process the data of the registering students.

Privacy rights, Aadhar and CUET

In the landmark privacy rights judgment delivered in 2017 by the nine-judge constitutional bench of the Supreme Court, it was unanimously held that the right to privacy is a fundamental right of citizens and part and parcel of Article 21. In a separate judgment delivered in 2018, while upholding the Aadhar Act, it struck down Section 57 of the Act which provided powers to private entities for mandating Aadhaar ID for availing their services. The court had noted that there was no nexus between giving such powers to private entities and the intended aim of the legislature, which was to enhance welfare services of the citizens and prevent leakages. Similarly, though the NTA is a government body, the CUET UG entrance test has no nexus to the intended aim of the Aadhar Act, which is to improve welfare services. Therefore, it can only voluntarily ask for Aadhaar ID of registering students, but cannot force them to submit one. The doctrine of colourable legislation ensures that whatever is prohibited directly is also prohibited indirectly. Hence, the Aadhar Act cannot allow NTA to indirectly force the student to submit their Aadhar ID for the purpose of CUET entrance test, as it will violate students’ right to privacy.

Furthermore, the Digital Personal Data Protection Act, 2023 (DPDP), virtually exempts Central Government and all its entities (NTA being part of it) from providing any data protection measures required under the Act, as most of the provisions of the Act does not apply to the Central Government or any entity of the Central Government. While DPDP Act is yet to be notified in the absence of the rules, the lack of data protection norms makes the situation no better.

As the CUET UG 2024 deadline stands extended till March 31, 2024, we wait for NTA to make the registration process more inclusive and less intrusive.

The relevant documents and screenshot can be found here:

Note: We would like to acknowledge Citizens Forum for Civil Liberties (CFCL) for sharing the relevant material with us and bringing forth this issue.

(The author is part of the Legal Research Team)

[1]https://uidai.gov.in/images/resource/Circular-School-06092018.pdf

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SC upholds Aadhaar’s Constitutional Validity, but partially addresses Privacy Concerns

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More than six years after the first legal challenge to the Unique Identification project was filed in court, the Supreme Court ruled on the constitutional validity of the Aadhaar project on September 26. While four judges upheld the validity of the Aadhaar project, one judge ruled that the Aadhaar project is unconstitutional and the database must be deleted.
 
The Aadhaar Act, as drafted by the UIDAI and its consultants, years after the project was already in operation, was recognized as having multiple loopholes. It is significant that even the four who upheld the judgment read down several sections of the Aadhaar Act, 2016 and limited the unrestrained expansion of the Aadhaar project.
 
As per Justice Sikri’s judgment, Aadhaar cannot be made mandatory for CBSE, NEET, JEE, UGC., school admissions, and secondary education as they are outside the purview of Section 7 and are not backed by any law.
 
Significantly, the concerns raised by citizens and several members of parliament on the use of Aadhaar by private entities were roundly addressed by the Supreme Court while striking down section 57 of the Aadhaar Act and declaring it as unconstitutional.
 
The lack of clarity on the scope of curtailment of Section 57 means the legality of UID use by NPCI, a private non-profit company as well as MicroATM, business correspondent usage of Aadhaar auth for #AePS is now in a grey zone.
 
The court stated Aadhaar cannot be made mandatory for bank accounts and mobile linking as it is unconstitutional. In one victory, protecting the rights of children. It stated – “On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the option to exit from the Aadhaar project if they so choose in case they do not intend to avail the benefits of the scheme.”
 
The judgment further restricts the sharing of Aadhaar data with state agencies in the name of “national security,” a term which is nowhere defined in the Constitution. The judgment gives residents a right to hearing on data sharing and allows for filing complaints against UIDAI if their data is breached, a remedy not available till now. In all these aspects, the court has found the Aadhaar Act flawed.
 
However, we are shocked and disappointed that the Court failed to read down section 7 of the Aadhaar Act which allows for welfare to be made contingent on the production of Aadhaar.
 
Justice Sikri’s judgment recognizes that welfare schemes have attained the status of fundamental rights. But the judgment led by Justice Sikri bizarrely chooses to see the Aadhaar Act as a “beneficial legislation” ignoring the hardship, exclusion and destruction of the lives of the poor due to the additional hurdle created by the Aadhaar technology.
 
Right to Food has documented that 25 citizens have died in the last three years due to Aadhaar issues and glitches in crucial social support programmes. The Rethink Aadhaar campaign is disturbed by the assertion that the rights of those excluded from welfare due to Aadhaar are in a small minority, are an “unproven plea of some”, that must be balanced against the majority of those who have supposedly benefited from Aadhaar.
 
We expect the Union Government to immediately order the removal of Aadhaar data from the databases where it is no longer legal to hold them including telecom operators and banking databases.
 
Justice Chandrachud’s judgment is the judgment we would have hoped for as the majority.
 
J. Chandrachud in his judgment concurs with parts of Justice Sikri’s judgment while dissenting with large parts of it. Justice Chandrachud recognized that the passage of the Aadhaar Act a Money Bill is completely invalid. His judgment states that “it constitutes a fraud on the Constitution.” It states that “This debasement of a democratic institution [Rajya Sabha] cannot be allowed to pass. Institutions are crucial to democracy… The passage of the Aadhaar Act is an illegality.” His judgment states that the Aadhaar database should be deleted.

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In a judgement, the Supreme Court on Wednesday upheld the legality of Aadhaar restricting it to disbursement of social benefits and junking its requirement for cell phones and bank accounts. Activists working on issues pertaining to Aadhaar held a press conference on the it. 

Courtesy: Newsclick.in
 

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The Supreme Court of India on September 26 pronounced its judgement on the validity of the Aadhaar project, upholding it in a 4:1 verdict. While the Free Software Movement of India notes that certain blatant misuses of the project have been identified and struck down, at the same time, the larger infrastructure has been broadly left intact. 

Image Courtesy: Financial Express

FSMI and its allies, from the very beginning, objected to the project due to the possibilities of data leakage, surveillance and exclusions. Our concerns were validated over the years as people were denied basic necessities, leading to even deaths, large-scale data leakages also occurred from various databases.

The declaration by the Supreme Court of Section 57 of the Aadhaar Act as unconstitutional, will hopefully mark the closing of the doors on the dangerous possibilities that arise out of private companies misusing Aadhaar data, as happened in the Airtel case. In the light of this section being declared unconstitutional, the government must immediately come up with a plan to scrub the data available with such companies. It is to be recalled that many financial entities, including telecom companies and banks, forced their customers to link their Aadhaar numbers, often employing threats of discontinuing services. The government must come up with an action plan to de-link this data and scrub their databases.

The majority verdict on the issue of inclusion is also a matter of concern. Considering the exclusion and consequent suffering by large segments of people due to the insistence on Aadhaar to avail of benefits, the Supreme Court’s willingness to accept the assurances of the government on the matter is disappointing. For those excluded from benefits due to failures in the Aadhaar authentication system, the vague nature of the Supreme Court’s pronouncements regarding “alternative arrangements” appear weak. The government must immediately come up with more concrete measures to address this exclusion of beneficiaries.

The majority judgement also ratified the passing of the Aadhaar Act as a Money Bill. As noted by Justice D.Y. Chandrachud in his dissenting judgement, this subversion of democracy through the bypassing of the Rajya Sabha is truly a “fraud on the Constitution” . 

Finally, it is most disappointing that the majority of judges outright chose to accept the UIDAI’s arguments on the issue of privacy and surveillance instead of taking a broader look at the issue. As Justice Chandrachud noted, “Biometrics are at the very heart of identification systems. There are numerous instances in history where the persecution of groups of civilians on the basis of race, ethnicity and religion was facilitated through the use of identification systems.” The unwillingness of the court to consider the impact of the leakage of data that has already happened, and may continue to happen, does not bode well for the citizens of the country. The battle against surveillance by both the State and private entities will continue despite this verdict. It is the role of activists, organizations and people’s movements to continue this fight and potentially force a re-examination of this question and the Aadhaar eco-system as a whole. 

For the Free Software Movement of India and its affiliated organizations across the country, this verdict does not mark a conclusion to the issues that have arisen around the project. The duty of keeping the government, the UIDAI and private entities accountable on the decisions announced today is of utmost importance. Of equal importance is the need to expand the consciousness of privacy among the people of the country and flag any violations of this right. Many more contradictions remain to be exposed in the Aadhaar system and FSMI will continue to be in the forefront of this effort.
 

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