Naavi.org

This is in continuation of the series of articles on this topic

Over the last 9 articles on Aadhaar Judgement, I have provided some views on the interpretation of the Judgement specifically with reference to the upcoming PDPA 2018 which has been introduced in the Parliament as a bill and will be taken up for debate in the next session. The public comments for the same are open upto 10th October 2018. Since the Adhaar judgement has just now been released, it is necessary that we re-visit our views on the PDPA 2018 draft from the perspective of what the judgement implies.

The Srikrishna Committee itself made an elaborate recommendation on the amendments to the Aadhaar Act in the main report but did not make it part of the draft PDPA 2018.  Now the Government apart from making whatever amendments are required to be made in PDPA 2018 may also make the recommended amendments  in the Aadhaar Act taking care that they donot conradict what this Aadhaar Judgement has indicated.

I draw the attention of the readers to the Appendix to the Srikrishna Committee Report which contains a detailed list of “Suggested Amendments to the Aadhaar Act”. It is not clear if the Supreme Court while finalizing the judgment went through these suggestions which were put together under the guidance of a former Supreme Court Judge spending nearly one year on understanding the issues involved in designing a Privacy Act.

It is to be noted that the recommendation contained interesting thoughts of alternate forms in which Aadhaar can be used for authetnication (eg Offline Authentication), strengthening of the dispute resolution mechanism (Introduction of adjudication and Appeallate Tribunal), mechanism for obtaining legal sanction for future use by a law passed by the Parliament, etc.

As regards Section 57, this recommendation included “Offline Verification” as the means by which the authentication was to be made so that all the objections that the current judgement has indicated would be completely irrelevant.

We therefore suggest that the Government while passing the PDPA 2018 also pass the amendment to the Aadhaar Act where by they may replace Section 57 with a read dwon Section 57 and introducing a new Section 57A incorporating the recommendations of the Srikrishna Committee.

Srikrishna Committee rightly did not get into providing prescriptions on information security such as the data retention, meta data collection etc and stuck to the legal issues unlike the current judgement. It’s recommendations are therefore worth looking into in detail.

Probably the Government needs to create a sub committee headed by Justice Srikrishna himself to re draw the Appendix in the light of the Supreme Court judgement.

I recommend that organizations such as Foundation of Data Protection Professionals in India (FDPPI) work with premier academic institutions like NLSUI and develop a draft recommendation of refining Appendix to the Srikrishna Committee in the light of this judgement.

Naavi

Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.

This is in continuation of our earlier Article in this topic

The judgement of the three judges made a significant observation which may leave a significant impact on the PDPA 2018.

While answering the question “Whether the Aadhaar Act violates right to privacy and is
unconstitutional on this ground?”, the judges observed as follows:

“…it is held that all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21”

Article 21 is the Article under which Privacy has been held as a fundamental right. When the earlier Puttaswamy judgement was pronounced there was some ambiguity about what rights are protected under “Privacy”. Though some of the judges in the bench correctly identified that Privacy is a “Mental State” and not possible to be properly defined and we can only protect “Information Privacy”, there were at least one Judge who went at a tangent to say that any thing can come under “Privacy”. ..What you eat, Where you go, etc are all part of Privacy.

The current judgement however is more sober and it recognizes that  any thing and everything connected to a person cannot be considered as a matter of privacy.

In other words, when we identify what is “Personal Information” which is subject to “Privacy Protection” we need to identify ony “those matters over which there would be a reasonable expectation of privacy” as part of the personal information.

For an individual, will his father’s name be considered as private? Will his grand father’s name or mother’s name be considered as private”, Will the mobile number or e-mail address or IP address or meta data associated with a  message be considered as “expected to be held private”? are issues that need to be considered.

In other words, the definition of “Personal Information” cannot be omnibus and include “any information that can directly or indirectly be used to identify a person”, which was the opinion which most carried after the GDPR and even in the draft of PDPA 2018.

Now there is a need to tone down the rhetoric of “Any information about a person” being held as “Personal Information” and check if there was a “Reasonable Expectation  by the individual that the information had to be held private”.

This is a significant opinion that also has a conflict with that part of the judgement which prohibits collection of meta data such as time of location of a transaction, IP address etc. Can we say that the user of an Aadhaar authentication has a reasonable expectation that UIDAI should not know such information about the transaction? In most cases there is no such expectation.

On the contrary, the Aadhaar users would have a reasonable expectation that such records would be kept by Aadhaar and tomorrow if there is any crime or dispute, the user can call for help from Aadhaar for the information.

For example, if I make a payment of Rs 10000/- through PayTM to another person and later he disputes that he has received the payment, we expect PayTM to stand as witness and confirm that the payment was made from such and such account to such and such account at such and such time etc. Similar expectation about Aadhaar is also reasonable.

Hence the view that meta data should not be collected and if some transaction authentication data is recorded, it is to be discarded within 6 months becomes a contradiction to the view that “All matters pertaining to an individual donot qualify as being inherent part of the right to privacy”.

I welcome this clarification which can be cemented in the PDPA 2018 by the Government.

The  Section 3(29) of PDPA 2018 should therefore be redefined as follows:

“3 (29) “Personal data” means data about or relating to a natural person who is directly or indirectly identifiable, having regard to any characteristic, trait, attribute or any other feature of the identity of such natural person, or any combination of such features, or any combination of such features with any other information; subject to the data principal having a reasonable expectation that such data would be protected under Article 21 of the Indian Constitution.”

Naavi

Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.

This is a continuation of the previous article on this topic

The second question which was answered by the three judges was “Whether the Aadhaar Act violates the right to privacy and is unconstitutional on this ground?

The judges proceeded to answer this question by stating that since the scheme is backed by the statute and serves a legitimate State aim and it does not infringe on the Privacy of the individuals. It however held that it should be used for delivery of benefits and services but not for reasons such as making it mandatory for CBSE exam etc.

In otherwords it stated that the Government should use it only for schemes where subsidies are distributed  from the consolidated fund of India by drawing attention to Section 7 of the Aadhaar Act.

It is however not clear why Supreme Court considered that Section 7 limited the use of Aadhaar only for schemes involving funds from the consolidated funds of India since the section does not seem to make such limitations. The section only states that it may be used for such purposes.

Since on the one side the Court felt that Aadhaar Act does not violate Privacy, it contradicts itself by imposing limitation of its use.

Aadhaar is a scheme which has been implemented with public funds and if it can be used as a tool for any activity without the Privacy or other Rights being infringed, the logic of restricting its use to only the welfare schemes appears unconvincing.

As regards the enrolment of children, it was held that  it can be done with the consent of the parents  and on attaining the age of majority, the children may have the option to exit from the Aadhaar  if they donot avail the benefits of the scheme to which they are enrolled.

The linking of the Aadhaar number with Mobile has however been declared illegal for the reason that it is not backed by law. This could be one of the aspects that may be considered in some law related to telecom regulations or even the PDPA 2018 itself.

All other objections raised on the validity of processes by which the Act was passed as a Money Bill and linking of Aadhaar with PAN  were held to be valid.

As regards opening of bank accounts, mandating that existing account holders need to provide Aadhaar or closing existing accounts if Aadhaar is not linked are not permitted. However for opening new accounts, if there are no alternative less invasive measures, it may be possible to use Aadhaar identification methodology.

The Telecom companies have however been disallowed to mandate linking of the mobile with the account since it is not backed by any law.

Additionally in the event of any offence, Supreme Court wants the consumer to be given the right to take legal action.

This remedy for civil and criminal action was already available under ITA 2000/8 when a wrongful loss had occured due to “diminishing of the value of information residing inside a computer/affecting it injuriously by any means (Section 43/66) and hence there is no additional benefit except adding one more section under Aadhaar Act into a complaint when made.

Naavi

Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.

This is a continuation of the earlier articles on the topic

Continuing our discussion on the Judgement of the three Judges, Dipak Mishra, A K Sikri and A W Khanwilkar, responding to the first issue answered by them namely,

(1) Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground?

Incidental Issues:

(a) What is the magnitude of protection that need to be accorded to collection, storage and usage of biometric data?
(b) Whether the Aadhaar Act and Rules provide such protection, including in respect of data minimisation, purpose limitation, time period for data retention and data protection and security?

the judges have responded….

(v) That portion of Section 57 of the Aadhaar Act which enables body corporate and individual to seek authentication is held to be unconstitutional.

The Section 57 has been one of the widely discussed aspects of the judgement since it has a a direct impact on the industry.

The section states:

57. Act not to prevent use of Aadhaar number for other purposes under law.

Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect:
Provided that the use of Aadhaar number under this section shall be subject to the
procedure and obligations under section 8 and Chapter VI.

Interesting debate happenned on this section and has been discussed in detail in the body of the judgement. But what is important is to look at this operating part of the judgement.

We can also simultaneously see the clear conclusion that is included in the Justice Ashok Bhushan’s judgement which states,

Section 57, to the extent, which permits use of Aadhaar by the State or any body corporate or person, in pursuant to any contract to this effect is unconstitutional and void. Thus, the last phrase in main provision of Section 57, i.e. “or any contract to this effect” is struck down.

The three member judgement stated that “that part of Section 57 that enables a body corporate and the individual to seek authentication is unconstitutional”. If we interpret that this “that part” relates to the entire section, then it means that Body corporate cannot use the Aadhaar authentication even  “Purusant to any law” .

This would look illogical since even “Privacy” is not an “Absolute Right” under the Constitution and the Parliament cannot be prevented from making a law which it considers suitable if it can justify that it does not violate the principles of fundamental rights subject to reasonable restrictions. Justice Ashok Bhushan has expressed his views with clarity but the three judges have not drafted this part of the judgement properly and left the words “That part” to be interpreted more widely than necessary.

But the same judges in the later part of their Issues-Answers,  in page 560 of the judgement., point 4, answer (h), state as follows:

Insofar as Section 57 in the present form is concerned, it is susceptible to misuse inasmuch as:

(a) It can be used for establishing the identity of an individual ‘for any purpose’. We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such “law” is made, it would be subject to judicial scrutiny.

(b) Such purpose is not limited pursuant to any law alone but can be done pursuant to ‘any contract to this effect’ as well. This is clearly impermissible
as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met.

(c) Apart from authorising the State, even ‘any body corporate or person’ is
authorised to avail authentication services which can be on the basis of purported agreement between an individual and such body corporate or person. Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and
demographic information by the private entities. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.

In this part of the judgement, the judges accept the power of the State to make law though such law also is subject to review. The section 57 is meant for both the State and the Body Corporates and for use both under a law or under a contractual agreement.

The intention of the judges appears to be to say that the individual and a body corporate cannot enter into a contract where by the body corporate can seek Authentication of Aadhaar data. But unlike Justice Ashok Bhushan, the other judges in their combined judgement failed to word their intentions without ambiguity.

As a result of this ambiguity, some are interpreting the judgement as if body corporates are completely barred from using Aadhaar.

We record our serious reservation to this interpretation because the Aadhaar infrastructure has been created out of public funds and it is a national resource. There is therefore no reason to prevent its wide usage as long as the Privacy concerns including Surveillance concerns are addressed.

The Court failed to also consider that the use of Aadhaar by private sector companies with biometric is already restricted only to “Global AUAs” like Banks. Other entities which are licensed as “Local AUAs” are barred from seeking authentication on the basis of Aadhaar number.

However, an Aadhaar number holder can generate a different random ID called “Virtual ID” (VID) which is a 16 digit number  as against the 12 digit Aadhaar number and is issued by UIDAI on request to the Aadhaar holder. This number can be used for purposes such as self identification since a body corporate can verify the correctness of the demographic information provided by an individual with reference to the VID.

When VID is presented to a body corporate along with some demographic parameters that need to be verified, the body corporate can submit the parameters one by one along with the VID and at the other end, UIDAI will provide a service which says whether the parameter as presented is correct or incorrect. For releasing this verification, the UIDAI may use the mobile OTP as a second factor authentication.

In this process, UIDAI does not dump the demographic information to a body corporate nor the body corporate collect the biometric nor the Aadhaar number. UIDAI is the only authority that knows the mapping between the VID and the Aadhaar ID.

This VID is a service that is being offered by UIDAI and has been mandatory from around July 1st 2018.

It is true that not all private sector companies have migrated from the use of Aadhaar number to VID and most of the Aadhaar users are not aware of the VID. But this is a different issue to be resolved by the industry and is not an issue on which Supreme Court should bar the usage .

It was surprising that the Supreme Court in its judgement did not make a special mention of the availability of VID. It completely ignored it as if it is not relevant at all. It is true that VID is not Aadhaar and hence it was not the subject matter of the petiton. But it would have been prudent for the Supreme Court to have made a mention of the VID so that the public would have become aware that there is an alternative which the private sector companies have ignored for some time and can be used now.

The use of VID for verification of demographic information as presented by an Aadhaar user (without populating the form at the user end with a dump of data from the UIDAI) particularly without biometric should have been ideally pointed out by the Court.

Nevertheless the judgement by ignoring to refer to VID has confirmed that VID is not Aadhaar and its use is not affected by any part of this judgement.

It is however better for the Government to include the use of VID as an acceptable method of verification of personal data in the PDPA 2018 draft.

Naavi

Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.

This is a continuation of the earlier articles on the topic

Continuing our discussion on the Judgement of the three Judges, Dipak Mishra, A K Sikri and A W Khanwilkar, responding to the first issue answered by them namely,

(1) Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground?

Incidental Issues:

(a) What is the magnitude of protection that need to be accorded to collection, storage and usage of biometric data?
(b) Whether the Aadhaar Act and Rules provide such protection, including in respect of data minimisation, purpose limitation, time period for data retention and data protection and security?

the judges have responded….

(iv) Insofar as Section 33(2) of the Act in the present form is concerned, the same is struck down.

The relevant section as it stands today and is being struck down is:

(33)(2) Nothing contained in sub-section (2) or sub-section (5) of section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government:

Provided that every direction issued under this sub-section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect:

Provided further that any direction issued under this sub-section shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.

The objection to this section was perhaps the Court considered that “Joint Secretary” was not the appropriate level at which this responsibility could be vested with.

The Government can therefore through the PDPA 2018 raise this level of intervention to the Secretary to meet the objections.

The Court has also pointed out in its answer that

(vi) We have also impressed upon the respondents, to bring out a robust data protection regime in the form of an enactment on the basis of Justice B.N. Srikrishna (Retd.) Committee Report with necessary modifications thereto as may be deemed appropriate.

As a result of this push, Government will have to bring up the PDPA 2018 for discussion as early as possible and get it passed. Alternatively, Government may have to resort to an ordinance to make PDPA 2018 effective immediately.

Naavi

Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.