Addressing the issue of redressal
Section 47 did not allow individuals to initiate criminal process when they found out about a violation of the Aadhaar Act
What can possibly go wrong for a person who has gone to Berlin to attend a biotechnology summit? Well, a lot, if one has seen the 2011 film 'Unknown'. Post an accident, the lead, Dr Martin Harris, finds out that he has lost two things critical for his survival. First, he temporarily loses his memory. When that starts to partially come back, he realises that someone has stolen his very identity. Thankfully, this was just a movie.
Back in the real world, one's identity is extremely important. No wonder, many were eagerly waiting for the Aadhaar verdict. In addition to the significant issues involved, this case is historic for another reason. Attorney General of India, Sh. K.K. Venugopal pointed out that it was the second longest oral hearing in the Supreme Court, first being the one in Kesavananda Bharti v. the State of Kerala, popular for giving us the Basic Structure doctrine.
By a majority of 4:1, the Supreme Court upheld the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 ('Aadhaar Act') in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (popularly called the Aadhaar judgment). At the same time, it also struck down certain provisions. Justice D.Y. Chandrachud added his perspective in the minority judgment. Over the past few days, many experts have dissected various parts of the majority and minority judgments taking their sides.
Among all the issues, let's focus here on one important provision which was also challenged and look at the relevant portions of the majority judgment on the same. This is Section 47 of the Aadhaar Act on 'Cognizance of Offences'. It states:
"(1) No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.
(2) No court inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate shall try any offence punishable under this Act."
The Authority is the Unique Identification Authority of India ('UIDAI'). This provision becomes important in the context of the whole list of offences under Chapter VII of the Aadhaar Act. While courts will take cognizance of an offence only when UIDAI or its authorised officer makes a complaint, individuals can send their grievances too.
Regulation 8 of the Aadhaar (Sharing of Information) Regulations, 2016 read with Regulation 32 of the Aadhaar (Enrolment and Update) Regulations, 2016 shed further light on this aspect. They state that a contact centre shall be set up for grievances and redressal of queries. Consequently, a Contact Centre has been established to manage queries and grievances in relation to enrolment, updating, and other services. Other channels include grievances lodged through the post, Public Grievance Portal of the Government of India or through email.
Conscious of its responsibility to initiate the criminal process, UIDAI has been taking action. While replying to a question in Lok Sabha in December 2017, Minister of State for Electronics and Information Technology stated that till date, UIDAI had filed 30 FIRs for violation of the Aadhaar Act. Recently, in Rajya Sabha, he replied that websites of Central Government, State Government departments, and certain educational institutions, totalling approximately 210, had been displaying a list of beneficiaries with details like their names, address, Aadhaar numbers, and other information for general public. Taking note of this issue, he stated that relevant departments and websites had been instructed to take down Aadhaar and other personal data from such sites. Moreover, Central and State Governments have been asked to brief Ministries and Departments so that the latter take adequate measures and precautions while publishing or sharing data on websites, and comply with the Aadhaar Act and Information Technology Act, 2000. Therefore, relevant authorities are already at work.
But Section 47 was challenged for its restrictive nature. Petitioners contended that this provision did not allow individuals to initiate criminal process when they found out about a violation of the Aadhaar Act and thus it rendered penal machinery ineffective. Since the court could take cognizance of an offence only on complaint by UIDAI or an authorised officer, the petitioners submitted that it foreclosed remedy to those aggrieved.
On the other hand, respondents defended the provision by arguing that only UIDAI can handle the enrolment storage in the Central Identities Data Repository and authentication exercises. Moreover, it pointed out that such provisions are also present in some other statutes.
After considering submissions of both sides, Justice A.K. Sikri (who authored the judgment on behalf of the Chief Justice of India, Justice A.M. Khanwilkar and himself) held:
"Insofar as Section 47 of the Act which provides for the cognizance of offence only on a complaint made by the Authority or any officer or person authorised by it is concerned, it needs a suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated."
Therefore, the Supreme Court has suggested an enlargement of the provision to help victims in initiating action.
Once amended, it will have far-reaching ramifications since Aadhaar enrolment has already reached a whopping 1,227,510,878 as per the Aadhaar Dashboard on UIDAI website. It will be a win-win situation for all stakeholders. First, victims will have the right to directly file a complaint, empowering them to get their grievances redressed. Second, since those interested in their data will be able to initiate action directly, the process can be expedited. One need not wait for the UIDAI or its authorised officer to start the process. Third, by expanding the scope of those who can file a complaint, there is a possibility of detecting more violations. This would complement the efforts of UIDAI. Such a partnership between people and enforcement agencies will help in the effective enforcement of the Aadhaar Act. Fourth, with more eyes on the lookout, it would deter wrongdoers. Fifth, such strict enforcement will build a greater trust of the society in this law.
While prevention is better than cure, it is important to have curative mechanisms in place. With data becoming the new oil, it is imperative to have enough legal remedies to bring the guilty to book in case this new age oil leaks. Viewed in this context, the Supreme Court of India has definitely shown the path to strengthen the foundations of the Aadhaar Act, something that is crucial in this data-driven age.
(Aparajita Gupta is a lawyer and currently a Young Professional with Economic Advisory Council to the Prime Minister and NITI Aayog, Government of India. The views expressed are strictly personal)