SUMMARY
The Petition Comes A Day After RBI Stated That Linkage With Bank Accounts Is Mandatory Under Prevention of Money Laundering Act
As Indian citizens are inundated with messages that ask them to link their phone numbers and bank accounts with Aadhaar, another petition has been filed against Aadhaar in Supreme Court. The new petition by Kalyani Menon Sen, who describes herself as a feminist scholar and activist working for 25 years on issues relating to women’s rights, challenges the constitutional validity of the decision of RBI to making linkage of bank accounts with Aadhaar mandatory on grounds of violation of right to privacy.
The petition comes a day after RBI stated that linking of bank accounts with Aadhaar has been made mandatory under the provisions of the Prevention of Money Laundering Act. The central bank stated, “The government has issued a gazette notification GSR 538(E) dated 1 June 2017 regarding Prevention of Money Laundering (Maintenance of Records) Second Amendment Rules (PMLA), 2017, inter alia, making furnishing of Aadhaar (for those individuals who are eligible to be enrolled for Aadhaar) and permanent number (PAN) mandatory for opening a bank account.”
The clarification from RBI dismissed recent media reports which suggested that such a linkage is not mandatory.
In addition to challenging the RBI order, the petition also challenged the validity of the March 23 circular issued by the department of telecommunication making it mandatory for citizens to link their mobile phones with Aadhaar. She stated that both decisions violated an individual’s right to privacy and, hence, are unconstitutional.
Her petition stated, “A citizen’s right to privacy is a fundamental right that is constitutionally protected. The right to privacy in the context of these two circulars (linking Aadhaar with bank accounts and mobile phones) has violated a citizen’s complete right over ownership and control of his core biometric information to the exclusion of all others, including the State.”
Aadhaar, Supreme Court, And The Right To Privacy Conundrum
The latest petition by Kalyani Sen adds further fodder to the pending pleas challenging Aadhaar on the grounds of violation of privacy. In August this year, a nine-member bench of the Supreme Court gave a unanimous verdict that Right to Privacy is a fundamental right, giving a huge setback to the government’s Aadhaar policy. Post this judgment, a five-judge bench of the Supreme Court will now test the validity of Aadhaar from the aspect of privacy as a Fundamental Right.
The ruling was based on an array of petitions that challenge the mandatory use of Aadhaar. Petitioners say that enforcing the use of Aadhaar, which assigns a unique 12-digit ID to every citizen, is an infringement of privacy. They also stressed that the Aadhaar database was originally presented as a purely voluntary programme that offered to provide every Indian with an identity card. However, the current government has been moving in the direction to make biometric-based number mandatory for availing various benefits under various social welfare schemes.
It is the same logic which Sen’s petition, filed through advocate Vipin Nair invokes and states that the government’s decision to link it with bank accounts by amending rules under PMLA violate the promise given by the authorities that parting of biometrics by individuals was on a voluntary basis.
By making it mandatory through PMLA rules, the government was coercing those who have not given their biometrics to part with it or face stringent consequences. The petition argued, “Present and potential bank account holders who do not wish to part with their biometric information are, therefore, treated on a par with alleged offenders under PMLA.”
In addition, it termed the mandatory linking of bank accounts with the biometric ID as an arbitrary amendment to the KYC requirement. It further adds, “Building a database dependent on Aadhaar and information linked there constitutes an unreasonable risk for financial autonomy and privacy of account holders, banks and financial sovereignty of the nation.”
The petition also touches upon the government’s decision to link it to various social welfare schemes which as argued by anti-Aadhaar brigade could deprive many of availing these benefits because of faulty data. Kalyani stated that the Aadhaar Act, 2016 had expressly limited the purposes for which Aadhaar number was required to be quoted which only included while receiving a subsidy, benefit or service which was given from the money drawn from the Consolidated Fund of India. She reasoned that “services which are provided by public and private sector banks and operating of bank accounts do not fall under any subsidy, benefit or service” and hence questioned the basis of RBI’s move to link bank accounts with Aadhaar.
The petition noted that the move violates “the citizen’s right to self-determination with respect to core biometric information without fear of penal consequences, which extends even after a person has (voluntarily or otherwise) parted with his or her core biometric information”.
The petition is likely to be heard next week by the Supreme Court. Though the Supreme Court’s decision to uphold the right to privacy in August was a landmark move and was a setback to the Centre, which seemed to be ignoring the importance of upholding the privacy of billions of Indians just to justify and protect Aadhaar, yet it did not settle the questions and security concerns surrounding it. Aadhaar will have to be tested against that recognised right – a test that will take place through hearings by another five-member bench of the Supreme Court. The bench will hear several petitions challenging the validity of the Act and Kalyani’s petition gets added to that list. One should also remember the verdict did not comment on whether the government’s demand for Aadhaar to be linked to all financial transactions amounts to an infringement of privacy. Till a decision on these petitions is reached, it looks like Aadhaar remains as it is.
[The development was reported by ET.]
