A petition against aadhaar argues that the UIDAI is ‘unconstitutional’ because the collection of biometric data is an invasion of a citizen’s right to privacy which is guaranteed by the Constitution under the Fundamental Right to Life.

By linking the launch of the flagship direct cash transfer (DCT) scheme to another controversial mega-project – Aadhaar or unique identification numbers – UPA-II seems to have taken a big risk.

On 30 November, the Supreme Court issued a notice to the government in response to a Public Interest Litigation (PIL) that has challenged the legal basis for the formation of the Unique Identification Authority of India (UIDAI) headed by Nandan Nilekani. The apex court has asked the government to respond to why the issue of Aadhaar numbers should not be put on hold, as sought by the petition.

A stay, if granted, will pull the plug (till the petition is disposed) on the massive nationwide process of issuing Aadhaar numbers. This, in turn, could bring to a screeching halt the direct cash transfer scheme that depends on beneficiaries having or acquiring Aadhaar numbers, since the 12-digit number has been chosen as the sole basis for opening bank accounts into which cash will be transferred.

The stakes for the Congress-led UPA in ensuring Aadhaar is not derailed couldn’t be higher.

But in the absence of necessary sanction from Parliament, the validity of the UIDAI, which has been issuing Aadhaar numbers with public resources, and collecting biometric data in violation of privacy laws, is unclear.

The petition argues that the UIDAI is ‘unconstitutional’ because the collection of biometric data is an invasion of a citizen’s right to privacy which is guaranteed by the Constitution under the Fundamental Right to Life, and therefore requires Parliament’s sanction and is beyond the scope of executive power.

The petition, therefore, argues that the executive decision by an Empowered Group of Ministers (EGoM) and a notification by the Planning Commission on 28 January 2009, constituting the UIDAI under the Planning Commission, is unconstitutional.

Says Ankit Goel, one of the Supreme Court advocates for the petitioners, “The state is asking for biometrics of an individual. The mere asking of biometric data is encroaching into someone’s privacy. It is tantamount to phone tapping. Whereas in phone tapping there is legislation, there is no legislation here… In the absence of a law passed by Parliament there can’t be any collection of private information. This is against the law laid down by the Supreme Court.”

Flagging a very serious cause of concern, which is shared by many, about the confidentiality and security of the demographic and biometric data collected, he adds: “There is no regulatory mechanism to ensure that the data collected is not tampered with or remains secure. When there is no legislation, there is no offence in parting with this information. And when there is no offence, there can be security issues.”

The National Identification Authority of India (NIAI) Bill, 2010 - the bill that envisages the creation and role of UIDAI - was introduced in the Rajya Sabha in December 2010, and is pending in Parliament.

A Parliamentary Standing Committee on Finance chaired by Yashwant Sinha, in its report on the Bill, categorically rejected it, observing that “… despite the presence of serious difference of opinion within the government on the UID scheme…the scheme continues to be implemented in an overbearing manner without regard to legalities and other social consequences.”

Twenty-two crore Aadhaar numbers have been issued so far and the estimated cost of the scheme (budget of phase III included) is Rs 12,000 crore, as per the Parliamentary Standing Committee’s report on the Bill that was submitted in December 2011.

Says Goel, “Once the Bill is pending and Parliament is seized of the matter, how can the government implement the scheme? The Prime Minister has himself highlighted the necessity of having a legislation. The PM, who piloted the Bill in the Rajya Sabha, raises several issues (in the Bill’s statement of objects and reason) with regard to the need for an Act.”

A third serious violation of the UIDAI of existing laws, the petition says, is the enrolment of all residents, which includes ‘non-citizens’. “The present scheme and the manner in which it is being implemented leads to all ‘residents’, including illegal migrants and foreigners residing in India, being given benefits and incentives upon the issuance of Aadhaar cards,” states the petition. This concern is also raised by the Parliamentary Standing Committee in its report.

Says Goel, “This per se is contradictory to the Citizenship Act, 1955, which does not recognise non-citizens at par with citizens. No country can afford to bestow benefits to aliens at the cost of its citizens.”

Describing the implementation of the scheme as “a colourable exercise of power” and “arbitrary”, the petition concludes by stating that “by way of executive action, the government cannot circumvent and bypass the legislative procedure.”

The Supreme Court has issued a notice to the Ministry of Finance, the Planning Commission and the UIDAI. The petition has been filed by a retired judge of the Karnataka High Court, KS Puttaswamy, and Delhi High Court Advocate Parvesh Khanna.