Issue Guidelines to Telecom Operators and banks to not to insist for Aadhar
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Contempt of Rule of Law and the Orders of the Supreme Court of India
Mr. Sanjeev Banzal, Advisor(NSL) recommended, vide No 102-2/2015-NSL-II dated January 20th 2017, to the Secretary, Department of Telecommunications to use Aadhaar based eKYC to re-verify existing mobile subscribers.
Mr. Prashant Verma, ADG (AS-II) of Ministry of Communications, Department of Telecommunications (Access Services Cell) has been instructing all unified licensees, unified access service licensees and cellular mobile service licensees vide File No. 800-26/2016-AS.II dated 23.03.2017 to re-verify all existing mobile subscribers through Aadhaar based eKYC process. Mr. Verma uses the documentation by the order of two member bench of the Supreme Court in WP(C) 607/2016 dated 06.02.2017 of the position brought to its notice as a direction of the court. He also asks the licensees to destroy old customer acquisition forms after an Aadhaar “verification”.
Mr Sanjay Kapur had filed an IA on behalf of the TRAI (IA 22, 23 of 2015) on Oct 3rd 2015 with the prayer to modify its order of 11.08.2015 in WP 494 of 2012 to permit biometric eKYC for paperless activation of telephone connections/SIM cards as an alternative process to the existing process of verification of telecom subscribers, till the disposal of the present writ petition. Kindly note the following:
1. A five member bench headed by the then Chief Justice of India in its order dated Oct 15th 2015, turned down your prayer to allow linkage of Aadhaar numbers with SIM activation. The court reiterated all its previous orders. In particular we draw your attention that the court stated that:
1. “After hearing the learned Attorney General for India and other learned senior counsels, we are of the view that in paragraph 3 of the Order dated 11.08.2015, if we add, apart from the other two Schemes, namely, P.D.S. Scheme and the L.P.G. Distribution Scheme, the Schemes like The Mahatma Gandhi National Rural Employement Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister's Jan Dhan Yojana (PMJDY) and Employees' Provident Fund Organisation (EPFO) for the present, it would not dilute earlier order passed by this Court. Therefore, we now include the aforesaid Schemes apart from the other two Schemes that this Court has permitted in its earlier order dated 11.08.2015”
2. “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013”
3. “We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other”
2. The three member bench of the Court had noted earlier in its order of August 11, 2015 that: “The learned Attorney General had stated that the respondent Union of India would ensure that Aadhaar cards would only be issued on a consensual basis after informing the public at large about the fact that the preparation of Aadhaar card involving the parting of biometric information of the individual, which shall however not be used for any purpose other than a social benefit schemes.”. It had therefore ordered that
1. “The Unique Identification Number or the Aadhaar card will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme;”
2. “The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.
3. In its first order of September 23, 2013, the apex court had highlighted that “In the meanwhile, no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory”.
4. Furthermore, the use of Aadhaar for linking to other databases, retention, storage or publishing is not only prohibited but also a punishable offence under the The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016.
It is evident that all communications of the TRAI/DOT to require linkage of Aadhaar are invalid and bad in law. Moreover, they are also in contempt of the Supreme Court and are showing complete disrespect for the Rule of Law.
BANKS CANNOT FORCE FOR AADHAR
Most banks have gone on an overdrive of threatening to freeze existing bank accounts unless customers to link Aadhaar. They are also refusing to open new bank accounts without Aadhaar, citing GSR 538(E), the amendment to the Prevention of Money-laundering (Maintenance of Records) Rules, 2005 under the Prevention of Money-laundering Act, 2002 (15 of 2003)(PMLA), on June 1st 2017.
It is not amusing either that the government believes that Aadhaar identifies anyone at all, provides proof of the persons authorisation or consent to opening bank accounts or even to do bank transactions. Here are just three ways that linking an Aadhaar number to a bank account or carrying out bank transactions destroys India’s financial systems:
1. When pressured to link Aadhaar to bank accounts, the Reserve Bank of India (RBI) had maintained that the use of the Aadhaar number was in conflict with the Prevention of Money Laundering Act (PMLA), the Basel Standards for maintaining customer information and its own extant guidelines. The RBI also highlighted that at best the Aadhaar is a third party identification and such third party identification is not used in banking practices anywhere in the world. It had also highlighted that the use of eKYC destroys customer acquisition information and customer records. As such, Aadhaar enables millions of shell bank accounts to be opened.
2. Bank accounts opened with Aadhaar can be created and operated remotely and therefore create a framework for money laundering at a scale that is impossible with pre-Aadhaar KYC. In five years post Aadhaar KYC, bank accounts in India have doubled from 44 crore to 88 crore and deposits have also doubled from Rs66 lakh crore to Rs122 lakh crore suggesting shell accounts with black money being parked in them.
3. Aadhaar-enabled Payment Systems (AEPS) transfer money from Aadhaar to Aadhaar number and not bank accounts. Such money transfers do not leave money trail and therefore facilitate money laundering in ways that was not possible with National Electronics Funds Transfer System (NEFT) or Real Time Gross Settlement (RTGS).
Here are just three ways that linking Aadhaar to your bank accounts endangers you:
1. Your bank account becomes Aadhaar enabled allowing AEPS to transfer money into or from your account as soon as you link it to Aadhaar. This means all money transfers through the AEPS to or from your bank account will be un-traceable and therefore, also irreversible.
2. Money transfers to your account can now be hijacked by a “phishing” account that links itself to your Aadhaar number to receive money meant for you. Such money transfers may become impossible to track and reverse, as they do not leave any money trail.
3. Crime committed using duplicate accounts opened with your Aadhaar number will point to you, not the fraudster. This will also leave you defenseless and deprive you of recourse to justice.
What can you do?
Neither the Aadhaar linkage to mobiles nor the linkage to bank accounts is legal. In fact, it even violates the orders of the Supreme Court and is counter to the Rule of Law. The coercion to link Aadhaar to mobile phones started because of the Telecom Regulatory Authority of India (TRAI) and the Department of Telecom (DoT) colluded to ignore the Court’s orders, the rule of law, and existing legislation to produce notifications that mislead, misquote and cause coercion.
The coercion to link bank accounts started because the Department of Revenue, under the Ministry of Finance issued an illegal notification ignoring the law, Court orders and the rule of law.
Government notifications forcing you to link Aadhaar to mobiles, bank accounts and other services are illegal, contempt of the orders of the Supreme Court and a disrespect of the rule of law.
The All India Bank Officers’ Confederation (AIBOC) wants Aadhaar seeding of accounts put on hold till the Supreme Court comes out with a clear directive.
“The government should make it clear to the people that the seeding of Aadhaar is voluntary and not mandatory,” said D Thomas Franco, General Secretary, AIBOC.
He said the Aadhaar Act of 2016 was meant to cover targeted delivery of financial and other subsidies, benefits and services that were paid out of the Consolidated Fund of India.
The Act further prescribed that the enrolment is voluntary.
“If the act of getting an Aadhaar card is voluntary under the law, how can the government make it mandatory for continued access to banking and telecom facilities that were not covered by the Act in the first place?” Franco asked and cited the June 1, 2017, Gazette notification regarding Prevention of Money-laundering (Maintenance of Records) Second Amendment Rules, 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.
In its fight against tax evasion, the Centre has made it mandatory to quote the Aadhaar number for opening bank accounts and also made Aadhaar compulsory for 135 schemes (of 35 ministries), including free cooking gas (LPG) to poor women, kerosene and fertiliser subsidy, targeted public distribution system (PDS) and MGNREGA.
However, the Supreme Court has restricted the usage of Aadhaar to six schemes where the government provides benefits or subsidies to individuals.
The confederation further urged the government to look for alternatives or add more workforce in banks to implement Aadhaar-related work.
Opposing the move to make Aadhar seeding mandatory, Franco said: “The matter is with the Supreme Court and will, therefore be, sub judice to discuss now. Besides, the urgency in its implementation is uncalled for and against the spirit of democracy.”( Source Business Line Oct 22,2017)
Thus to ensure that there is no Contempt and absolute adherence to Rule of law we I urge all of you to sign this Petition so that the Central Government understands that Political overtones cannot ride over citizens , their privacy and the Honble Supre courts clear directives
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