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Aadhaar linkages matter: This act will make the real person worthless, only the virtual person will prevail, says Gopal Subramanium

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Gopal Subramanium

Above: Gopal Subramanium

 The hearings on Aadhaar and its various linkages and privacy and security issued attached to them continued before the Supreme Court constitution bench of Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan on Tuesday (February 13).

The following deliberations took place with senior counsel Kapil Sibal carrying on from where he broke off:

He talked about identity taken by face, iris and fingerprints. He also submitted about foreign situations where the government took all the information only for ten years. He said that “after the 10 years all databases will be deleted and recreated. That is what happens in the most secure countries in the world.”

He pointed out: “Even if you want to access the database, it will only be for limited things. The problems which are created by Aadhaar will be suffered by out our children, grandchildren and the children who are yet to be born.

“We all know that how much national security is important for us. And this government is trying to put it in danger,” he said. He then read retired Judge Puttaswamy’s arguments, on whose petition this case has come up. He submitted that the compilations of Trip Advisor, Alibaba, Uber, and some other websites showed the business reviews which were affected by Aadhaar.

Same he said of Facebook and WhatsApp which it acquired for $19 billion.

Sibal recited Right to Privacy judgment and laid down two points:

  1. My identity cannot be made a public identity
  2. My identity is not centralized

He said: “We are challenging the architecture of the act. On the one hand we have public interest and on the other we have national security.”

Involved are “personal information, medical information,  personal identity,” he said. “Our fundamental identity is that we are citizens of India. How can this be decided only on the basis of Aadhaar? Our passports, medical facilities etc. can be rejected? The state cannot choose how to prove our citizenship.”

He further referred to Sections 3,4,8 of the Aadhaar Act. Like argued before, Sibal also insisted that authentication is the key in the use of the Aadhaar number. “Meta data is not defined under the Aadhaar Act,” he said. “Section 57 was not needed. The proviso of Section 57 says subject to authentication. In short, for almost every purpose you will need authentication. And the concept of consent is illusionary. Identity can be established only by way of authentication. Such power is infringement of Article 19(1),20.”

He further stated: “Through Aadhaar the state seeks transparency of the individual. So the purpose of the RTI Act is violated. The proportionality argument is that you are presumed to be a criminal until you are proved innocent.

“There should not be the least restrictive opportunity to achieve the object. Hence proof of identity through Aadhaar is most restrictive way, hence violative of the principle  of proportionality,” the senior counsel argued.

“If Aadhaar is made mandatory wide powers will be given to the state in respect to when and where an individual will choose to travel, open an account, live, go etc. If someone’s account is deactivated because of any reason then an individual will not be able to even operate his account. So how is it justified without there being any alternative relief available to such persons?

“The Act says that all the expenditure should be from a consolidated fund, but it does not make clear which consolidated fund it is from, India or state?” he argued.

“The right to receive entitlement is also one point to be considered,” he said. “Entitlement is one’s status. So in case of our status we don’t need Aadhaar to claim our right? Certain entitlements are available to non citizens also. No service can be denied, especially to those who are below the poverty line.

“This statute impacts our fundamental right i.e. right to livelihood. That is why the test is far more stringent,” Sibal said. Proof of identification is a statutory restriction.

He said the infrastructure of this country doesn’t allow Aadhaar. “There is no public wi-fi. Many people don’t know how to use the internet and other facilities,” he said. He brought up the case of the Kerala Education Trust which supports his arguments related to use of Aadhaar in educational areas.

He also said that fingerprints and the iris are continuously changing when a child is growing. So during the in-between years Aadhaar is of no use.

Justice Chandrachud said that “an unconstitutional condition is when one person is surrendering the rights of his personal things or identity. The government is chosen by the public at large.”

Sibal said that the entitlement is made on the person who is a citizen of this country. “I don’t have any issue with Aadhaar, but lack of infrastructure is the biggest problem and taking all personal identity is the problem. You can give it in the name of Social Security Card, but on the name of Aadhaar, it is not good.”

Justice Chandrachud asked where the doctrine of Unconstitutional conditions really lies in this. Does it ask to relinquish the condition which is created?”

The judge said: “There are some people in this country who don’t have any identity. When the government is giving one identity for all things, then what is the issue?”

Sibal said that this is given in the act. That is the social purpose of this. He referred to the act and said the answer is in the act. He said “you must have some identification cards for making Aadhaar. Hence the intention of Aadhaar is not for those people who don’t have any identity card.”

As to the distance things have been taken with Aadhaar, Sibal said: “I cannot book a railway ticket if I don’t have Aadhaar. The point is, my identity refers to me. If I show my identity it must show that I am Mr Sibal. Identity is the thing which proves that I am who I am.”

He then referred to the writ petition 841/2017 which is related to the state of West Bengal. Page 114 of the petition refers to the services rendered via Aadhaar.

He said that the government is issuing notifications from time to time. On November 17, they have issued a notification in which school attendance came on this list. He referred to the Minarva Mills case.

Sibal said: “I gave all these things to create a picture which shows that it hasn’t any constitutional validity.”

“Perhaps this is the more important case, because of the imposition,” Sibal said. The ADM Jabalpur case came before this court and this case will be remembered by me, my children and grandchildren. Now you are going to create a future. This judgment will affect many people. These are the elements your lordships have to keep in mind.

Gopal Subramanium

Senior counsel Gopal Subramanium then took up his stand. He said: “This matter is related to a sequel of saving our rights. When the Right to Privacy came before this court, the question arose. Today, we are looking at what is called a living constitution. When we see this, then we have to decide, is it fundamental or not?

“I am willing to say that the technology is getting vast. He said. “First we have to see what is the real purpose of this act. This act is a danger. It is no longer a state when it allows these type of things in a democratic society. When the identification and authentication lies with government then there is no use of a real person. Then the name is not the name, it will just be a number. And the virtual person will rule.”

The matter will again be heard on February 15.

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In Nagpur, Rahul Gandhi says true meaning of caste census is justice

“Different institutions of government are formed by the Constitution. If there was no Constitution, then the Election Commission would not have been formed,” he said.

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Leader of Opposition in the Lok Sabha and Congress leader Rahul Gandhi said on Wednesday that the true meaning of a caste census is justice, adding that his party will also “break the wall of 50 per cent” reservation limit.

Addressing the Samvidhan Samman Sammelan in Nagpur, the former Congress chief hit out at the BJP and its ideological parent Rashtriya Swayamsevak Sangh (RSS), accusing them of attacking the Constitution and thereby attacking the voice of the country.

Ahead of the November 20 Maharashtra Assembly elections, the event was organised at the Suresh Bhatt Hall in Reshimbagh area of Nagpur, which is adjacent to Dr Hedgewar Smruti Mandir, a memorial of RSS founder Dr Keshav Baliram Hedgewar.

Attack on Constitution by RSS-BJP is an attack on the voice of India, Gandhi said. He explained the idea behind the Constitution and said it is not just a book but it is a way of life. He said what is written in the Constitution has been said by many great personalities like Lord Buddha, Mahatma Gandhi, and Phule.

“It is written in it that there should be equality among all, every religion, every language, every caste should be respected,” the Congress leader said.

“Different institutions of government are formed by the Constitution. If there was no Constitution, then the Election Commission would not have been formed,” he said.

India’s education system, IIT, IIM, primary education system, and secondary education system were created because of the Constitution, he said, adding that “if this is removed, you will not get a public school, public hospital, public college”.

Gandhi also attacked Prime Minister Narendra Modi for his comments on Congress leader, saying, “Whenever I talk about caste census, Modiji says that Rahul Gandhi talks about dividing the country. But I am telling the country that 90% of the people of India are not participating in the progress of the country.”

He added, “If you see tribal, Dalit, backward people, you will see them standing in MNREGA queue or working as laborers. You will not find these people in the media or the judiciary.”

“Whatever the BJP-RSS people say or do… Caste census will be conducted in India and the wall of 50% reservation will be broken,” he said.

The Rae Bareli MP recalled a meeting that he attended recently in his constituency where he asked the officers to introduce themselves. Gandhi said when the introduction started, he did not find a single name belonging to the Dalit and OBC categories.

“From corporate to judiciary, we do not see people from Dalit, OBC and tribal communities. This is the situation everywhere, where we cannot see 90% of India,” Gandhi added.

The senior Congress leader also spoke on how the idea of caste census came to him, saying, “When he was interacting with the public, a small voice came to him – caste census. But then gradually this voice grew bigger. We have named it caste census, but its real meaning is justice.”

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Indian exporters may face higher tariff under Trump’s America First agenda

The US stands as India’s largest trading partner, with annual trade exceeding $190 billion.

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With Donald Trump all set to become the 47th President of the United States, Indian exporters may face high customs duties on products such as automobiles, textiles, and pharmaceuticals if the new administration pursues its “America First” agenda, according to trade experts.

The experts have also indicated that Trump might tighten H-1B visa regulations, which could raise costs and hinder growth for Indian IT companies. With over 80 per cent of India’s IT export revenues stemming from the US, these changes could make the sector vulnerable to shifts in visa policy.

The US stands as India’s largest trading partner, with annual trade exceeding $190 billion.

Ajay Srivastava, founder of the Global Trade Research Initiative (GTRI), said that Trump might extend tariffs beyond China to include India and other nations, citing Trump’s earlier statement that India is a large tariff abuser and his October 2020 statement labeling the country as the tariff king. These comments hint at the likelihood of more challenging trade negotiations during Trump’s second term.

“His America First strategy is expected to advocate for protective measures, including reciprocal tariffs on Indian goods, which could hinder key exports such as automobiles, textiles, and pharmaceuticals, diminishing their competitiveness in the US market,” Srivastava stated.

However, he also said that a tougher US policy towards China could potentially open up new markets for Indian exporters.

The bilateral trade in goods between the two countries stood at $120 billion in 2023-24 as against $129.4 billion in 2022-23.

A GTRI report had earlier stated that according to WTO’s World Tariff Profiles 2023, the US also imposes high duties on items like dairy products (188 per cent), Fruits and vegetables (132 per cent), cereals and food preparations (193 per cent), oilseeds, fats and oils (164 per cent), beverages and tobacco (150 per cent).

International trade expert Biswajit Dhar remarked that Trump is likely to increase tariffs across different sectors to fulfill his MAGA (Make America Great Again) mandate. “With Trump’s return to power, we are headed toward a new era of protectionism,” Dhar predicted, pointing out that sectors such as electronics might be adversely affected.

Furthermore, Dhar raised concerns about the future of the Indo-Pacific Economic Framework for Prosperity (IPEF), emphasising, based on Trump’s past decision to withdraw from the Trans-Pacific Partnership (TPP), there may be uncertainty surrounding IPEF’s stability. Launched on May 23, 2022, the 14-nation bloc could face challenges ahead.

Ajay Sahai, Director General of the Federation of Indian Export Organizations (FIEO), stated, “While we might see Trump advocating for more balanced trade, disputes around tariffs are likely to arise amid rising protectionist trends and stricter immigration policies.”

Agneshwar Sen, Partner for Tax and Economic Policy (International Trade) at EY India, said that the US might strategically implement high tariffs to promote domestic manufacturing and adjust existing supply chains, potentially leading to increased tariffs on Indian exports such as textiles, chemicals, pharmaceuticals, and engineering products.

“India may need to look for alternative markets, which would be challenging, or consider retaliatory tariffs on US exports. Alternatively, we should prepare for a trade deal that is appealing to the US, not only protecting our existing interests but also facilitating new opportunities,” Sen noted.

Additionally, Srivastava pointed out that Trump’s concerns regarding outsourcing could result in policy changes affecting IT exports. H-1B visa regulations are crucial for facilitating the movement of skilled IT professionals from India. “A stricter immigration approach from Trump could potentially alter visa rules, thereby raising costs for Indian IT companies,” he explained, PTI reported.

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FIR filed against Mithun Chakraborty for provocative speech

According to reports, the complaint against Chakraborty pertains to a speech he made during a BJP programme at the EZCC in Salt Lake area on October 27, based on which police registered an FIR at Bidhannagar South Police Station.

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A case was registered against actor-turned-BJP leader Mithun Chakraborty by West Bengal Police on Wednesday for allegedly delivering a provocative speech during a party programme in North 24 Parganas district last month.

According to reports, the complaint against Chakraborty pertains to a speech he made during a BJP programme at the Eastern Zonal Cultural Centre (EZCC) in Salt Lake area on October 27, based on which police registered an FIR at Bidhannagar South Police Station.

The programme, which took place in the presence of Union Home Minister Amit Shah, was organised to kick off the West Bengal leg of the BJP’s membership drive.

“We have started an investigation into the case,” said a senior officer of Bidhannagar police reported by PTI.

BJP state president and Union Minister Sukanta Majumdar described the FIR a result of vendetta politics. Chakraborty has not commented on the FIR yet.

“There is nothing provocative in his speech. These are nothing but attempts to intimidate him by using police as a political tool,” the BJP state president said.

Chakraborty, who was awarded India’s highest film honor, the Dadasaheb Phalke Award, earlier this year, asserted on October 27 that the “masnad” (throne) of West Bengal will be claimed by the BJP following the 2026 Assembly elections. He pledged to utilise all necessary efforts to accomplish this objective.

During his address at a program organised by the EZCC, Chakraborty stated, “In 2026, the masnad will be ours, and we will undertake all actions required to achieve this goal.”

In reference to TMC MLA Humayun Kabir’s communal comments directed at BJP supporters during the Lok Sabha elections, Chakraborty cautioned against any attempts to intimidate voters affiliated with the saffron party, encouraging them not to abstain from participating in the forthcoming Assembly elections. He called upon the booth-level workers of the BJP to firmly resist any such efforts.

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