Case BriefsSupreme Court

Supreme Court: In a writ petition filed against forced religious conversion the division bench of M.R. Shah and Hima Kohli said that the issue with respect to the alleged conversion of religion, if it is found to be correct and true, is a very serious issue which may ultimately affect the security of the nation and violate citizens’ right to freedom of conscience and right to freely profess, practice and propagate religion.

The petitioner has submitted that the forced religious conversion by intimidation, threatening, luring through gifts and monetary benefits is a very serious problem and it violates Articles 14, 21 and 25 of the Constitution of India.

The Court said that the Union Government should take their stand and file a reply on or before 22-11-2022, that what further steps can be taken by them to curb such forced conversion, maybe by force, allurement or fraudulent means.

The matter will next be taken up on 28-11-2022.

[Ashwini Kumar Upadhyay v. Union of India, 2022 SCC OnLine SC 1596, decided on 14-11-2022]


Advocates who appeared in this case :

Ashwini Kumar Upadhyay, Advocate- On -Record Ashwani Kumar Dubey, Advocates, for the Petitioner(s);

Tushar Mehta, Additional Solicitor General Jayant K. Sud, Advocate Kanu Agrawal, Advocate Pratyush Srivastava, Advocate Navanjay Mahapatra, Advocate Kartik Jasra, Advocate Randeep Sachdeva, Advocate- On -Record Mukesh Kumar Maroria, Solicitor General, for the Respondent(s).


*Apoorva Goel, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

   

Supreme Court: In an appeal filed against the judgment of the Delhi High Court, wherein the Court has set aside the orders passed by the Central Administrative Tribunal and thereafter directed the northern railway (appellants) to count 50% of respondents service as commission vendors, prior to their absorption, as “qualifying service” for grant of pensionary benefits, the division bench of M.R. Shah* and B.V. Nagarathna held that the respondents/commission vendors working in the northern railway shall also be entitled to the same benefits which the other commission vendors working in different zones/divisions are entitled to and there cannot be discrimination among the similarly situated commission vendors as to deny similar benefits would be tantamount to discrimination and in violation of Articles 14 and 16 of the Constitution of India.

The Court noted that the issue in the present case is with respect to commission vendors working in the Northern Railway, and the issue is whether the commission vendors who were absorbed in the regular service are entitled to reckon 50% of the period of service as commission vendors, prior to their absorption, as qualifying service for grant of pensionary benefits, at par with the casual labourers whose services were regularized by virtue of Rule 2005 of the Indian Railway Establishment Manual, Vol. II, 1991 read with Rule 31 of the Railway Services (Pension) Rules, 1993.

It was also noted that so far as the commission vendors working in the western railway, eastern railway, southern railway and south-eastern railway are concerned, pursuant to different orders passed by the Central Administrative Tribunals and High Courts, which have been confirmed by this Court, the issue is held against the Union of India/Railways, as the commission vendors are held to be entitled to 50% of the services rendered prior to their regularization to be counted for pensionary benefits and all of them were granted such benefits.

The Court said that it cannot be disputed that employees working in different divisions/zones in the Railways are under the very same employer – Railway Board which is under the Ministry of Railways. Therefore, the employees working under the same employer in different zones/divisions are required to be treated similarly and equally and are entitled to similar benefits and are entitled to the same treatment.

Thus, it was held that, on the ground of parity, the commission vendors working in the Northern Railway are entitled to the same benefits which are provided to all the similarly situated commission vendors working under different zones/divisions and there cannot be different criteria/parameters with respect to similarly situated employees.

The Court noted that the submission of the Railways that there will be huge financial burden on them, is not a reason to deny the similar benefits to the respondents, as the commission vendors working in the northern railway are also entitled to similar benefits given to the similarly situated commission vendors working in different divisions who are already being paid the pensionary benefits by counting the benefit of 50% of their services rendered prior to their regularization.

Thus, the Court while applying the doctrine of stare decisis, dismissed the appeals and held that commission vendors working in the northern railway are entitled to have 50% of their services rendered prior to their regularization to be counted for pensionary benefits like other office bearers working under the Railway Board, working in different zones/divisions.

[Union of India v. Munshi Ram, 2022 SCC OnLine SC 1493, decided on 31-10-2022]

*Judgment by: Justice M.R. Shah.


*Apoorva Goel, Editorial Assistant has reported this brief.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: In a public interest litigation petition instituted under Article 226 of the Constitution of India challenging the U.P. Subordinate Forest (Deputy Range Forest Officer and Forester) Service Rules, 2021, framed under the proviso appended to Article 309 Constitution of India of the Constitution, the division bench of Devendra Kumar Upadhyaya and Saurabh Srivastava, JJ. has observed that the structure of cadre, source/ mode of recruitment, prescription of minimum qualification, selection criteria are matters exclusively fall in the realm of the employer and its judicial review is very limited. Thus, unless the petitioner can show that prescription of height of 163 cms. recruitment to the said posts does not have any reasonable basis, interference in such matters is not advisable.

The petitioner pointed out that prescribing minimum standard for of 163 cms height in case of a male candidate for the recruitment to the post of Deputy Range Forest Officer and Forester is violative of Article 14 of the Constitution of India, as for several other equivalent posts in other departments or even for the posts lower in rank in the same department, prescription of requisite height of a candidate is more than 163 cms. Further, in the forest department itself the prescription of minimum height for recruitment to the post of Vanya Rakshak and Vanya Jeev Rakshak is 168 cms., though these posts are equivalent to the posts held by a Constable in the Police Department, whereas the posts of Deputy Range Forest Officer and Forester are equivalent to the post of Sub Inspector in the Police Department. Also, for the post of Sub Inspector in U.P. Police, the minimum height of a candidate as prescribed is 168 cms., similarly even in the case of recruitment of a Homeguard, the minimum prescription of height is 167.7 cms; therefore, the minimum requisite height for recruitment to the post of Deputy Range Forest Officer and Forester ought to be fixed in tune with the height required for recruitment to these posts and not 163 cms, as such prescription is arbitrary and infringes the equality clause contained in Article 14 of the Constitution of India.

The Court relied on Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra, (1998) 7 SCC 273 and Dattaraj Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590, wherein it was held that “Public Interest Litigation in a service matter is not maintainable, and that a private citizen or a stranger having no existing right to any post and not intrinsically concerned with any service matter is not entitled to approach the Court”, and observed that the petitioner is a complete stranger to the recruitment process, however, she is seeking certain alteration/ changes in the Service rules which is nothing but an expression of recruitment policy of the State Government.

Placing reliance on Union of India v. Pushpa Rani, (2008) 9 SCC 242, wherein it was held that the Court cannot prescribe minimum physical standards for recruitment on a particular post. Thus, the Court observed that the structure of cadre, source/ mode of recruitment, prescription of minimum qualification, selection criteria are matters exclusively fall in the realm of the employer and its judicial review is very limited.

It was also viewed that the submissions of the petitioner are fallacious because the height in case of recruitment, even of a Security personnel, cannot be the sole criteria for adjudging the suitability for appointment. Thus, dismissed the petition.

[Kavita v. U.P. Sub-Ordinate Services, 2022 SCC OnLine All 736, decided on 14-10-2022]


Advocates who appeared in this case :

Moti Lal Yadav, Advocate, Counsel for the Petitioner;

Gaurav Mehrotra, Advocate, Counsel for the Respondent.

Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case where a transgender person was declined participation in District Judo Competition, V.G. Arun, J., held that if the organisers have not made arrangements for participating transgenders, they have to allow the petitioner to participate in her chosen category.

On being denied participation in the District Level Judo competition, the petitioner, a transsexual person, whose chosen self-perceived gender identity is woman, had approached the Court with her grievances.

The petitioner underwent Sex Reassignment Surgery and claimed that the transition is complete. Being an active sports person, who had participated in various sports items like athletics, judo, wrestling, etc., she is desirous to participate in the District Level Judo competition being held by Kerala Judo Association and Kozhikode District Judo Association (respondents 3 and 4) on 30th and 31st of July, 2022.

However, when she attempted to submit her application for participation through online mode, she was informed that transgender persons will not be allowed to participate in the competition.

The petitioner submitted that even after undergoing Sex Reassignment Surgery, she had actively participated in various sports events at the University level in the transgender category. Relying on the decision in National Legal Services Authority v. Union of India, (2014) 5 SCC 438, wherein the Supreme Court has recognised ‘transgender' as a Gender identity, she prayed that she be permitted to participate in her self-perceived gender category.

The petitioner contended that her self-perceived gender identity is woman and after having undergone the surgery, she has been on hormone therapy for almost 5 years.

The Court opined that a transgender person has an equal right to participate in competitions. Therefore, the Court held that in the absence of any category for participating transgender persons, the organisers have to permit the petitioner to participate in her chosen category.

Accordingly, respondents 3 and 4 were directed to accept the petitioner’s application and do the needful, if the time stipulated for submitting applications is not over. The Court added that if the application reaches respondents 3 and 4 within time, she shall be allowed to participate in the Championship provisionally and subject to the final outcome of this writ petition.

[Anamika v. State of Kerala, WP(C) No. 24571 of 2022, decided on 29-07-2022]


Advocates who appeared in this case :

Dhanuja M.S, Advocate, for the Petitioner;

Latha Anand, Advocate, for the Kerala Sports Council.


*Kamini Sharma, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

   

Jammu and Kashmir and Ladakh High Court: While deciding the question raised in the instant petition that, whether the classification made on the basis of educational qualification for promotion, offends Arts. 14 and 16 of the Constitution; the Bench of Sanjeev Kumar, J., went on to reiterate the core principles of the concerned constitutional provisions and held that there should be left no doubt in the mind of anybody that the classification on the basis of educational qualification for promotion is permissible in law and does not offend Arts.14 and 16 of the Constitution.

Facts of the case: The petitioners, serving in Sher-i-Kashmir Institute of Medical Sciences Soura, Srinagar (hereinafter ‘SKIMS') as Staff Nurses, claimed to have rendered their services for the last 27 years. The petitioners were Matriculates and possessed 3 years Diploma in General Nursing and Midwifery. In 1998, SKIMS promulgated the Sher-i- Kashmir Institute of Medical Sciences Subordinate Services Recruitment Rules 1998 (hereinafter ‘1998 Rules') as per which no person was eligible for appointment or promotion to any post in any class, category or grade in the service unless he possessed the qualification as laid down in Schedule II of the Rules.

Later in 2014 via Government Order No.75-SKIMS of 2014, sanction was accorded to the modification of recruitment rules for various categories of staff working in the Institute. Regarding the post of Senior Staff Nurse, the afore-stated Government Order stated that post is to be filled up 100% by promotion from Staff Nurses possessing B.Sc. Nursing or M.Sc. Nursing degrees.

Aggrieved by the prescription of minimum qualification of B.Sc. Nursing provided for promotion to the post of Sr. Staff Nurse, the petitioners challenged the same on the ground that the classification made by the respondents between a Staff Nurse possessing three years Diploma in General Nursing and Midwifery and a Staff Nurse possessing the qualification of B.Sc. Nursing, violates Arts. 14 and 16 of the Constitution and therefore the same is not permissible.

Contentions: The petitioners contended that for about 27 years, they entertained a legitimate expectation that they would be promoted to the post of Sr. Staff Nurse in due course but, because of the impugned Government Order, laying down a modified criteria for the post of Sr. Staff Nurse, the petitioners have been deprived of their right to promotion for all times to come.

Per contra, the respondents relied on State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19, wherein classification on the basis of higher qualification being permissible under law, was settled by the Supreme Court.

Observations: Perusing the issue raised by the petitioners, the Court observed that the issue is no longer res-integra as the same has been settled by the Supreme Court in plethora of cases. The Court, however, deemed it appropriate to reiterate the interpretation of Arts. 14 and 16 as laid down by the Supreme Court from time to time-

  • Arts. 14 and 16 do not permit the State to treat un-equals as equals, for that is not the spirit of the principle of equality envisaged under the Constitution.

  • Art. 14 prohibits class legislation and not reasonable classification. To pass the Art. 14 test, classification needs to meet only two requirements: intelligible differentia and rational/ reasonable nexus between the intelligible differentia and object of the classification sought to be achieved.

  • The Court referred to the landmark decision in E.P. Royappa v. State of T.N., (1974) 4 SCC 3, wherein Justice P.N. Bhagwati had delineated the concept of permissible classification under Art. 14 stating that, “Art. 14 is the genus while Art. 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination”.

  • The Court considered the arguments raised by the respondents and agreed with them that the issue of classification on the basis of educational qualification in the matter of promotion, was set at rest by the Supreme Court in the afore-stated Triloki Nath Khosa case.

Decision: With the afore-stated observations, the Court dismissed the petitions and held that prescription of higher qualification like the qualification of B.Sc. Nursing/M.Sc. Nursing for promotion to the post of Senior Staff Nurse, is essential for efficient discharge of duties of a higher post. Thus, the respondents can surely prescribe higher technical qualification for the purpose of promotion.

The Court also held that a Staff Nurse possessing qualification of three years Diploma in General Nursing and Staff Nurses possessing qualification of B.Sc. Nursing, cannot be on par and therefore, are unequal because of their qualification. Which means that it would not be obligatory for respondents to treat these two unequals as equals.

[Hanifa Deva v. SKIMS, 2022 SCC OnLine J&K 528, decided on 05-07-2022]


Advocates who appeared in this case :

Arif Sikandar, Advocate, for the Petitioners;

M. A. Chashoo, AAG, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case BriefsSupreme Court

Supreme Court: In yet another big verdict on rights of women, a bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has lifted the statutory bar on the engagement or enrolment of women in the Indian Navy to the extent envisaged in the notifications issued by the Union Government on 9 October 1991 and 6 November 1998 under Section 9(2) of the Navy Act, 1957.

On the contention that certain sea-going duties are ill-suited to women officers, the Court said that such contention is premised on sex stereotypes that male officers are more suited to certain duties by virtue of the physiological characteristics.

“Performance at work and dedication to the cause of the nation are the surest answers to prevailing gender stereotypes. To deprive serving women officers of the opportunity to work as equals with men on PCs in the Indian Navy is plainly discriminatory. Furthermore, to contend that women officers are illsuited to certain avocations which involve them being aboard ships is contrary to the equal worth of the women officers who dedicate their lives to serving in the cause of the nation.”

The Court, hence, passed the following directions:

  • By and as a result of the policy decision of the Union Government in the Ministry of Defence dated 25 February 1999, the terms and conditions of service of SSC officers, including women in regard to the grant of PCs are governed by Regulation 203, Chapter IX, Part III of the 1963 Regulations;
  • The stipulation in the policy letter dated 26 September 2008 making it prospective and restricting its application to specified cadres/branches of the Indian Navy shall not be enforced;
  • The provisions of the implementation guidelines dated 3 December 2008, to the extent that they are made prospective and restricted to specified cadres are quashed and set aside;
  • All SSC officers in the Education, Law and Logistics cadres who are presently in service shall be considered for the grant of PCs.

“The right to be considered for the grant of PCs arises from the policy letter dated 25 February 1999 read with Regulation 203 of Chapter IX Part III of the 1963 Regulations. SSC women officers in the batch of cases before the High Court and the AFT, who are presently in service shall be considered for the grant of PCs on the basis of the vacancy position as on the date of judgments of the Delhi High Court and the AFT or as it presently stands, whichever is higher”

  • The period of service after which women SSC officers shall be entitled to submit applications for the grant of PCs shall be the same as their male counterparts;
  • The applications of the serving officers for the grant of PCs shall be considered on the basis of the norms contained in Regulation 203 namely:
    • availability of vacancies in the stabilised cadre at the material time;
    • determination of suitability; and
    • recommendation of the Chief of the Naval Staff. Their empanelment shall be based on inter se merit evaluated on the ACRs of the officers under consideration, subject to the availability of vacancies;
  • SSC officers who are found suitable for the grant of PC shall be entitled to all consequential benefits including arrears of pay, promotions and retiral benefits as and when due;
  • All SSC women officers who were denied consideration for the grant of PCs on the ground that they were inducted prior to the issuance of the letter dated 26 September 2008 and who are not presently in service shall be deemed, as a one-time measure, to have completed substantive pensionable service. Their pensionary benefits shall be computed and released on this basis. No arrears of salary shall be payable for the period after release from service;
  • As a one-time measure, all SSC women officers who were before the High Court and the AFT who are not granted PCs shall be deemed to have completed substantive qualifying service for the grant of pension and shall be entitled to all consequential benefits; and

The Court, further directed that 5 women Commanders, namely Commander R Prasanna, Commander Puja Chhabra, Commander Saroj Kumar, Commander Sumita Balooni and Commander E Prasanna, who were not reinstated despite Court’s interim order, shall be entitled, in addition to the grant of pensionary benefits, as a one-time measure, to compensation quantified at ? 25 lakhs each.

Earlier, the same bench had ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service.

[Union of India v. Lt. Cdr. Annie Nagaraja, 2020 SCC OnLine SC 326, decided on 17.03.2020]

Case Briefs

Supreme Court:

“Seventy years after the birth of a post-colonial independent state, there is still a need for change in attitudes and mindsets to recognize the commitment to the values of the Constitution. This is evident from the submissions which were placed as a part of the record of this Court.”

In a major verdict today, the bench of Dr. DY Chandrachud and Ajay Rastogi, JJ has ordered that the permanent commission will apply to all women officers in the Indian Army in service, irrespective of their years of service. The Court also ordered that after the judgement of Delhi High Court, Centre should grant permanent commission to women officers.

Holding that the blanket non- consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law, the Court said that the Army has provided no justification in discharging its burden as to why women across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either.

The Court took a strong exception to the following submissions made by the Union of India,

(i) The profession of Arms is a way of life which requires sacrifice and commitment beyond the call of duty;

(ii) Women officers must deal with pregnancy, motherhood and domestic obligations towards their children and families and may not be well suited to the life of a soldier in the Armed force;

(iii) A soldier must have the physical capability to engage in combat and inherent in the physiological differences between men and women is the lowering of standards applicable to women;

(iv) An all-male environment in a unit would require „moderated behavior? in the presence of women officers;

(v) The “physiological limitations” of women officers are accentuated by challenges of confinement, motherhood and child care; and

(vi) The deployment of women officers is not advisable in areas where members of the Armed forces are confronted with “minimal facility for habitat and hygiene”.

Terming the aforementioned submissions ‘disturbing’, the Court said that reliance on the “inherent physiological differences between men and women” rests in a deeply entrenched stereotypical and constitutionally flawed notion that women are the „weaker? sex and may not undertake tasks that are “too arduous” for them. It said,

“Underlying the statement that it is a “greater challenge” for women officers to meet the hazards of service “owing to their prolonged absence during pregnancy, motherhood and domestic obligations towards their children and families” is a strong stereotype which assumes that domestic obligations rest solely on women.”

The Court further highlighted that numerous other commendation certificates and laurels achieved by women officers have been placed on record. Their track record of service to the nation is beyond reproach. To cast aspersion on their abilities on the ground of gender is an affront not only to their dignity as women but to the dignity of the members of the Indian Army – men and women – who serve as equal citizens in a common mission.

The Court, hence, issued the following decisions:

(i) The policy decision which has been taken by the Union Government allowing for the grant of PCs to SSC women officers in all the ten streams where women have been granted SSC in the Indian Army is accepted subject to the following:

(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service;

(b) The option shall be granted to all women presently in service as SSC officers;

(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service;

(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC;

(e) The expression “in various staff appointments only” in para 5 and “on staff appointments only” in para 6 shall not be enforced;

(f) SSC women officers with over twenty years of service who are not granted PC shall retire on pension in terms of the policy decision; and

(g) At the stage of opting for the grant of PC, all the choices for specialisation shall be available to women officers on the same terms as for the male SSC officers. Women SSC officers shall be entitled to exercise their options for being considered for the grant of PCs on the same terms as their male counterparts.

(ii) We affirm the clarification which has been issued in sub-para (i) of paragraph 61 of the impugned judgment and order of the Delhi High Court; and

(iii) SSC women officers who are granted PC in pursuance of the above directions will be entitled to all consequential benefits including promotion and financial benefits. However, these benefits would be made available to those officers in service or those who had moved the Delhi High Court by filing the Writ Petitions and those who had retired during the course of the pendency of the proceedings.

[The Secretary, Minister of Defence v. Babita Puniya, 2020 SCC OnLine SC 200, decided on 17.02.2020]

Case BriefsForeign Courts

Supreme Court of Sri Lanka: In this appeal violation of Right to Equality was contended which was even upheld by the bench of Sisira J. De Abrew, A.C.J. and L.T.B. Dehideniya and P. Padman Surasena, JJ.

In the pertinent case, appellant complained that his fundamental rights guaranteed under Article 12(1) of the Constitution has been violated by Respondent 1. His child was not admitted to Grade I in Vishaka Vidyalaya, Colombo in the year 2014 even after the directions of the Respondent 2 to admit his child in the School.

The Court considered the material facts and directed the 1st respondent to comply with the direction within one month from the date of judgment and asked 2nd respondent to undertake the responsibility of informing further.[B.A. Nulara Nethumi v. S.S.K. Awiruppola, 2019 SCC OnLine SL SC 2, Order dated 24-01-2019]

Hot Off The PressNews

On Day 8, Senior Advocate Kapil Sibal continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of Aadhaar being violative of the right to equality as it disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on.

Below are the highlights of Day 9 of the hearing:

Discussion on exclusion of people due to lack of Aadhaar:

  • Kapil Sibal: Just this morning there is a report about how in old age homes across the country, people are being denied pension because of Aadhaar. This is the reality of India.
  • Sikri, J:  Government has claimed that 1.2 billion people have been enrolled, which means that only ten crores are left. If there are so many problems, how have so many people been enrolled?
  • Kapil Sibal: There is a difference between getting enrolled and having to authenticate each time.
  • Bhushan, J: These kinds of problems may not be a ground for holding a statute unconstitutional.
  • Kapil Sibal: The point is exclusion.
  • Chandrachud, J: Exclusion may be because of infrastructure problems or it might be irremediable, like because of old age. On the first point, government may upgrade.
  • Kapil Sibal: The question is that if you’re going to upgrade, what happens in the meantime.
  • ASG Tushar Mehta: Nobody has been excluded because of lack of Aadhaar.
  • Rakesh Dwivedi (explaining the point made by ASG) : According to Section 7 of the Aadhaar Act, 2016, if there is a problem with authentication, you can just show the card and the number. Circulars have been issued saying that if there is authentication failure, nobody should be denied. Also, as per Sections 4 and 31, if biometric information changes, the Aadhaar holder can ask the UIDAI to update the information. (Also, points to the Regulations that say that residents who are unable to provide biometric information, an exception will be made for them.) Law does not permit any exclusion either at the enrolment stage or at the authentication stage.
  • ASG Tushar Mehta (Reading out a cabinet release that says that provisions have been made to handle exceptions):  arrangements have been made in all blocks and talukas to have alternatives available for exceptional cases.
  • Chandrachud, J: This actually indicates a countrywide problem. And the question is whether until mechanisms are placed, nobody should be excluded.
  • ASG Tushar Mishra: These mechanisms are already in place. 96% of the people are already enrolled.
  • Sikri, J: Many people may not be knowing that there is a provision that you can update your data.
  • ASG Tushar Mehta: Aadhaar is citizen friendly and all problems have been taken care of. Nobody is being excluded for lack of Aadhaar.
  • Kapil Sibal: There are serious problems on the ground, and you can’t answer that simply by reading out the provisions.
  • ASG Tushar Mehta: If biometrics and iris scans fail, you are entitled to produce any alternative ID. There is no question of exclusion.
  • Chandrachud, J: Does the Act provides for situations where authentication fails?
  • Rakesh Dwivedi: Section 7 allows for that. (Kapil Sibal disagrees and points to Section 4(3) of the Act)
  • Chandrachud, J: Section 7 contemplates three possibilities – authentication, proof of enrolment, and proof of application. He says that Section 4(3) only applies to the first situation.
  • Sikri, J: Under Section 7, proof being furnished of having an Aadhaar will be sufficient.
  • Kapil Sibal: On that interpretation, people will refuse to authenticate.
  • Sikri, J: We can interpret the section in this way: if authentication fails, then you can show proof of enrolment.
  • Kapil Sibal: That would amount to adding the word “or” in the section.
  • Chandrachud, J: We can interpret the Act in a way to ensure that there is no exclusion. Authentication is at the heart of the statute.

Discussion on UK biometeric identity project that was scrapped in 2010:

  • The UK Act provided for a national identity register. A regulatory impact assessment claimed that the UK bill would achieve less illegal migration, enhance ability to fight terrorism, and prevent identity fraud for welfare. He says that these are the exact arguments that the government is making today.
  • The UK govt insisted that the bill was to ensure that everyone had one ID, and that it would not erode Civil liberties.
  • The opposition Conservative party opposed it on the ground that it was fundamentally changing the relationship between individual and State.
  • The Conservative Party argued that a central database of information was perilous to civil liberties.
  • UK bill introduced to repeal the act, stated that the national identity card represents the worst of government, it is intrusive and bullying, and does not achieve its objectives. The then Home Secretary and now Prime Minister Theresa May said:

                   “Government is a servant of the people, not the master.”

  • Kapil Sibal: This is a recognition of the pitfalls.

Discussion on Section 7 of the Aadhaar Act, 2016:

  • Kapil Sibal:
    • Sections 3, 4, 8 and 57 of the Aadhaar Act are at the heart of the statute. Under 57, you can extend Aadhaar to all other non-welfare service.
    • Section 7 is not key to the Act. If it was not there, the government could have used Section 57 and achieved the same goal by amending the Food Security Act.
    • Section 7 authorises the government to say that Aadhaar can be the only way to get subsidies.
    • My entitlements should depend on my status, not on my identity. I might be a pensioner with a pension card issued by the government, but the government can still deny me.
    • All proofs of identity, which are otherwise acceptable, are excluded by the Act.
  • Sikri, J:  Those alternative forms are acceptable even at the time of enrolment.
  • Kapil Sibal: Yes, exactly. Acceptable for enrolment but not for identification. What’s the basis for this? Why should anyone know, for example, where and when I open a bank account. The only ground is national security, but there’s no link between Aadhaar and that.
  • Chandrachud, J: The Constitution itself postulates multiple identities. Gender, status, religion. The Aadhaar Act doesn’t speak of identity in that sense. Whether the constitutional sense of a plurality of identities is relevant to identity in the sense that Aadhaar envisions identity?
  • Kapil Sibal: The link is that the Constitution allows me to prove my identity in a way that Aadhaar prohibits me. Article 21 of the Constitution guarantees choice, and Aadhaar takes it away.
  • Chandrachud, J: Could the State not argue that Aadhaar only asks you to prove your person, not your identity?
  • Kapil Sibal:
    • There should be a choice in exactly that.
    • Israel has biometric smart cards. Israeli law allows biometric identification and authentication, and the existence of a database. The database doesn’t include identifying information. The smart ID card allows users to identify themselves for services and benefits if they wish to do so. This last bit shows the voluntary character.
    • Yes, we can have an ID card. But authentication should be optional, data should be on the card, there should be no data, and every citizens should have the right to alternatives.

Kapil Sibal will conclude his submissions on the next date of hearing. The Bench will now hear the matter on next Tuesday.

To read the highlights from Day 8 of the hearing, click here.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/gautambhatia88

Hot Off The PressNews

On Day 8, Senior Advocate Kapil Sibal continued his submissions before the 5-judge bench of Dipak Misra, CJ and Dr. AK Sikri, AM Khanwilkar, Dr. DY Chandrachud and Ashok Bhushan, JJ on the issue of misuse of the Aadhaar Scheme. On Day 7, Senior Advocate Shyam Divan concluded his 6 and a half day long submissions and said

“If this program is allowed to roll on unimpeded, think of the domination the State will have over the individual.”

Below are the highlights from Day 8 of the hearing:

Submissions on misuse of Aadhaar:

  • Kapil Sibal: I am not talking about the State abusing Aadhaar, but how Aadhaar makes everyone vulnerable. He says that vulnerability is where the violation of rights comes in. Why should anyone know where I am flying to?
  • Sikri, J: Most of us our frequent flyers and our flight information is anyway stored by the airlines.
  • Kapil Sibal: But that is only with the airline. It was because of the perils of storage of information that the UK destroyed its national biometric identity program.

Submissions on the technical aspect of Aadhaar: 

  • Kapil Sibal: The first issue is that of centralisation. UIDAI claims it is secure because it is federated. (Cites an RBI report that identified the CIDR as “a single point of attack” and a “single point of failure.”)
  • Chandrachud, J: I agree that theoretically, every centralised database can be hacked. But this is not necessarily a statement of vulnerability, but the acknowledgement that you need to take care.
  • Kapil SIbal: Yes, there need for safeguards that protect the system.
  • Kapil Sibal: Unlike smart cards, most biometric readers in India can be defeated by a child using fevicol and wax. With smart cards, there is no centralised database that can be compromised. Any leakage of biometric data is permanent. If there is no knowledge of when the biometric data is stolen, it will be difficult to trust future transactions.
  • Sikri, J: These days phones have fingerprints and iris authentication.
  • Kapil Sibal: That is only stored on the phone.
  • Sikri, J (Smiling): We understand that distinction.
  • Kapil Sibal (talking about recent Airtel scam involving Airtel payment accounts): UIDAI itself has acknowledged these issues by releasing L0 and L1 security standards, but many machines still don’t meet that standard. In fact, the State Resident Data Hubs have no security of any sort
  • Kapil Sibal (On perils of face recognition):
    • There is an important question of who owns the biometric data, and that there is nothing in the law that defines this.
    • The margin of error increases with the increase in the size of the database. The larger the database, the more the rejections. At 1 billion, it’s 1 in 146 rejections. So basically, the UIDAI will decide who are the ghosts and who aren’t.
  • Kapil Sibal: UIDAI claims that replay attacks will be dealt with like you deal with forged credit cards. He asks “but where will you find the evidence from.”
  • Kapil Sibal: Aadhaar impacts federalism. The exclusions caused due to Aadhaar violates the right to equal treatment. It disproportionately impacts people who are aged, people engaged in manual labour, disabled people, and so on. This is a specific issue with biometrics, as opposed to smart cards. What might be appropriate for fighting crime and terror is inappropriate for the daily interactions between citizen and State. The Aadhaar Act contemplates breaches.

Looking for the detailed submissions of Senior Advocate Shyam Divan? Read the highlights from Day 1Day 2, Day 3, Day 4 , Day 5, Day 6 and Day 7 of the hearing.

Source: twitter.com/gautambhatia88