Congress' spokesperson Abhishek Manu Singhvi on Wednesday blamed BJP-government in centre for misusing Aadhaar after a five-judge constitution bench declared the centre's flagship scheme constitutionally valid.
Singhvi said the nation should be in gratitude to the Supreme Court for the stupendous judgement.
"Now, all this was never intended. Aadhaar was simply for marginalised societies, down trodden, for delivery platform for essentials," he added.
Q: Your first reaction to what you have made of the judgement from the Supreme Court. 4:1 in favour of upholding the constitutional validity of the Aadhaar, especially, when it comes to providing government services and government benefits. Now, Section 7 in the dissenting order by Justice Chandrachud, he holds that to be arbitrary and unconstitutional. But the majority view is that Section 7 and Section 8 are not violative of the fundamental right to privacy. So, you first reading of the implications of today's order?
A: I think even after a stupendous judgement, for which the nation should be in gratitude to the Supreme Court, many people have not understood the judgement and its implications. First and foremost, the core of Aadhaar, the conceptual idea of Aadhaar, the shining core of Aadhaar is extremely good. I don't say it's because the United Progressive Alliance (UPA) brought it in, but it is basically an excellent idea. As far as I am concerned, a large number of people are concerned, nobody wanted the baby to be thrown out with the bath water. What had happened was that the bath water was made extremely dirty by the NDA-BJP government, by add-ons, which had nothing to do with Aadhaar as conceptualised. You had a CBSE, you has a UGC add-on, you had data sharing, you had bank accounts and you had mobile numbers.
You were coming to stage that if you seized, you needed Aadhaar. If you went to the washroom, you needed Aadhaar card. Now, that was never the intention of Aadhaar. What the court has done 4:1 rightly is - to preserve the core of Aadhaar that is to preserve the borne baby, to promote it, to nurture it. B - To throw out the dirty bath water or the dirt, which had accumulated by distortion and perversion of the concept. C - To send a clear unequivocal message that use of Aadhaar for devious means, for collecting data, for sharing data with others for snooping on you, for finding out about you, for using it has a catch all is completely impermissible.
Last point, remember the core of Aadhaar is what? A - Delivery mechanism to prevent leakages and help the marginalised, the people who are in the outer boundary. It was never meant for these things, which somehow in the Modi government seem to have been invented.
Q: Let me just take that point forward, because you are talking essentially Section 57, which the court has struck down large basically for private bodies, corporations, individuals etc. to be able to get access to Aadhaar information. But, the court seems to be suggesting and I want to get your understanding of what the court has said and also your understanding of the commentary that is coming in from the government that there is no statute in place to allow for linking bank accounts and mobile phones to the Aadhaar card. Now, Arun Jaitley, the finance minister, speaking a short while ago, says that there are 2-3 prohibited areas. We need to understand whether these are prohibited or a legal battle is needed. I don't think this prohibited areas are perpetually prohibited. Does that seem to suggest that the government is looking at putting something on board as far as the statute book is concerned bringing in a law to enable the linkage of mobile phones, bank accounts and what have you to the Aadhaar?
A: I think this is nothing, but spin doctoring, this is nothing, but trying to make a fool of the people. This is nothing, but trying to make a virtue out of necessity. They have lost badly and you are seeing classic examples of spin doctoring. Number one, please ask the question, are you under your regime only after 2014 and not prior using Aadhaar for the six examples I gave, there are many more like mobiles, bank accounts, data sharing, UGC and CBSE. Number two, you may not have created a statute, but under the Aadhaar card, was not banks rather people asking you for this. Number three, that is the precise point which the court has made - the Aadhaar statute never said so. You were acting without statute.
Now, if Arun Jaitley means and I hope he doesn't that, we will now bring in new statute to do exactly what the court has said that Aadhaar did not permitted to be done, well then, good luck to him and his government. Let them take another beating at the courts, because a statute, which says that my life is to be governed by such requirements in terms of having information, which can even be shared what you call metadata etc, well then, I am sure that a similar statute, of course, this is highly speculative, this is just throwing in the air, you have lost the judgement today, so you are talking about a future, which doesn't exist. If you do it again, I am sure the court will give a befitting reply. But, we have not seen the content, the boundaries and the style of that statute, so let us not speculative. As of today, you were misusing Aadhaar for purposes it was never intended or designed for.
You had distorted out of recognition, you had tried to fit all kinds of square pegs into round holes and vice versa, and you had created a regime, where your ulterior motives were being used and sub served through the Aadhaar method. For god sake, just the other day we got a petition in the Supreme Court, where I appeared, where a tender is issued for using Aadhaar for monitoring social media. Where tenders are requiring all kind of Aadhaar platforms. Now, all this was never intended, it was simply for marginalised societies, down trodden, for delivery platform for essentials.
Q: I want to take not of what the Supreme Court has said, "It is very difficult to create a profile of a person based on biometric and demographic information. It's hard to believe the petitioners argument that Aadhaar creates a surveillance state." While acknowledging that data protection is very important, the court also seems to say that this idea that is being pushed of Aadhaar being used to create a surveillance state is a tad exaggerated?
A: You are reading a part of the reasoning of the court. Nobody asked for a finding. Can the court be asked to give a finding that we are in a surveillance state or Aadhaar creates a surveillance state, that was not the argument. It was a means to an argument, the argument being that parts of Aadhaar are unfortunately being misused for possible data sharing and if we don't control its use, it will be used for surveillance. So, the court has said we cannot at the moment come to a conclusion there is surveillance.
You tell me one thing, if you share this data, if there are no Chinese walls, if there is a privacy judgement now, what is the meaning of surveillance? So, what the court has done is to stop a potential misuse for surveillance. I agree that we are not a surveillance state today, India is too large democracy to be made into a surveillance state in three years.
Suppose this kind of a limit had put on Aadhaar today, I can guarantee that within a few years, you would have kind of a surveillance state. When you give these powers, it does not limit to government ABCD, it's possible that future government of any political colour would be tempted to misuse. So, what the court has done is, it has put a red flag, a red line, that is the important point.
Q: I want to talk about some of the practical challenges, because as we just discussed, Section 57 and Section 33 for instance has been struck down by the court. However, Section 139A of the Income Tax Act, which basically needs your PAN card to be linked to your Income tax returns has been upheld by the court. The question that people are asking and a lot of people commenting and writing in to us on social media that for every bank account, for your mobile phones, you require a PAN card. If your PAN car is already linked to your Aadhaar card, then what difference does it make whether now today the court says that you don't need to link your mobile phone or your bank account with your Aadhaar card? It is happening any way via the PAN card?
A: No, it is not so simple as that. The linkage is now restricted to an area, where you already have a PAN card. So, you already have a system by which you are tracked. That tracked is linked to Aadhaar to reassert or reinforce the identity issue, the fact that the person who already has submitted his PAN card is an Aadhaar person. However, what you are missing out is that there is a very clear Chinese wall, that just because you link your Aadhaar card to a PAN card, you can't then start sharing all the data or sharing everything there through the route of the PAN card, there is no such thing as that. It is not a pass through. Just imagine the number of examples I gave you - CBSE, UGC, data sharing, bank accounts, mobile, all these are prohibited. Now, you can't achieve the same indirectly and violate the Supreme Court order by saying that, because it is linked for a limited purpose of income tax act, therefore, I will start using it for all these purposes, absolutely no. That is a wrong interpretation and it will lead to contempt. In fact, the heart of the order of all the judges irrespective of majority or minority is that basic privacy concerns cannot be violated.
Suppose you come to me and collect my Aadhaar card for a PAN issue, in your filling of return, you have a Aadhaar card stated in the PAN form and you just share it. Let me tell you, IT returns are very confidential by the way, an IT return can't be shared with your bank or your mobile chap or UGC or anybody else anyway.
Let us assume there is no Aadhaar, can anybody share your income tax details, because your PAN card is already there? Can somebody give you a PAN card to start using for other purposes? They can't. So, now it's focused on the need, on the nature of the activity, the purpose, the object and the urgency required for that activity alone, not generally.
Q: What is the understanding of the data that has already been collected by telecom companies and by banks, because of various directives, where the Aadhaar linkage was already asked for in light of the judgement today, what happens now?
A: This is the important question, which you should ask all the spin doctors and the spin masters of the government of India. If it was so easy, then why is all this data already collected and possibly in a large number of cases already shared? There is some degree of irreversibility, if I have passed the data to you and you have passed it to somebody else, you can't trace it to the end result. Let me tell you, after this judgement, two things - one, implicit in the judgement is that all such data collected for reasons other than PAN card, income tax etc. would have to be rendered completely frozen and in fact, destroyed, that is my reading of the judgement. Two, if there is a lack of specificity, you will have people individually applying and getting the judgement implemented by destruction. Third and most important, if god forbid, you are caught sharing this old data with somebody else, then you are clearly violating and you are possibly going to be punished and in contempt of court. So, I think that is sufficient for the time being.
Q: This question has implications beyond just the Aadhaar debate and that is the Supreme Court upholding the fact that this could have been passed via the money bill route. We have had a fairly scathing dissenting note coming in from Justice Chandrachud, saying that the passage as a money bill is a fraud on the constitution, but that apart, the majority view has upheld the money bill route. The precedence that this sets up now for the future outside of Aadhaar?
A: One, I hail the judgement of Justice Chandrachud, though, I accept his dissent. Two, I don't agree with the majority on this narrow point. Three, we will await a proper judgement in the larger case, which is already pending in the Supreme Court namely, the scope of the certification by the speaker of a money bill. Anything that you as a speaker call a money bill will not be deemed to be a money bill, if it's otherwise not. However, the important point is that although, the majority doesn't agree with him, the words Justice Chandrachud may well become the majority in the future money bill case itself, which is pending.
Justice Chandrachud used the word it's a subterfuge and then he used a further phrase - "debasement of democratic institutions." I think this is vital. What is the essence of democracy? Democracy is that you follow the majority. Now, you know that you have a majority in Lok Sabha, you know that you don't have an equal majority in the Rajya Sabha or if you do, you can take a chance. Just to circumvent it, you cannot bypass a majority, the Rajya Sabha is not a paper machine, it's not a house of cards, it was not created as an ornamental body. Therefore, if you allow this to go rampage, I am reminded of the judgement of the ordinance, ordinance as you know many years ago it has been held for several decades that an ordinance cannot be judicially reviewed, because it's done in an emergency, because the legislature is not in session and the question arose, can you decide what is emergency or not? They said no. Ultimately, some states started re-promulgating ordinances one after the other and the argument was the same that you cannot judge the emergency, leave it to the executive. The court in a thumping judgement held that if you keep on abusing the power by re-promulgating endlessly, then we will judge the emergency. A time will come, when you start reusing this money bill route through the Rajya Sabha again and again, where I have no doubt that the sentiment of Justice Chandrachud will in fact become the majority, hopefully in the pending case.
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