Central Information Commission
Ishan Bharti vs Unique Identification Authority Of ... on 12 June, 2024
Author: Heeralal Samariya
Bench: Heeralal Samariya
के न्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई दिल्ली, New Delhi - 110067
नितीय अपील संख्या / Second Appeal No. CIC/UIDAI/A/2023/116673
Dr Ishan Bharti ... अपीलकताग/Appellant
VERSUS/बनाम
CPIO, Unique Identification Authority of ...प्रनतवािीगण /Respondent
India(UIDAI)
Date of Hearing : 17.05.2024
Date of Decision : 10.06.2024
Chief Information Commissioner : Shri Heeralal Samariya
Relevant facts emerging from appeal:
RTI application filed on : 04.12.2022
PIO replied on : 19.12.2022
First Appeal filed on : 13.01.2023
First Appellate Order on : 08.02.2023
2ndAppeal/complaint received on : 11.04.2023
Information soughtand background of the case:
The Appellant filed an RTI application dated 04.12.2022 seeking information on following points:-
(i) "Whether address in my minor daughter named Pranaya Bharti Aadhar Card No. 208411487871 has been changed? If yes, then please provide new address with a copy of Aadhar Card No. 208411487871.
(ii) Whether mobile number in my minor daughter Pranaya Bharti's Aadhar Card No. 2084 1148 7871 linked since beginning has/have been altered? If yes, then please provide new mobile no. now linked with the said Aadhar Card of my daughter.
(iii) Whether it is possible to change the name of the alive father and head of the family in the Aadhar Card of a minor/ unmarried daughter? If yes, then under what circumstances the name of alive father cum natural guardian can be changed in Aadhar Card No. of minor child?
(iv) Who can replace the alive father and head of the family in the Aadhar Card af a minor unmarried daughter?Page 1 of 6
(v) What are the all documents needed to effect changes of address, mobile number and head of family in Aadhar Card No. of a minor child?
(vi) Who has applied for changes/alterations and what changes/alterations in the said Aadhar Card of my minor daughter and what all documents have been submitted with the application for changes/alteration?
(vii) Is it a fact that application for Biometrics and changes/ alterations to address, mobile mumber and head of family in the Aadiuar Card of my daughter Pranaya Bharti were made on 01 Oct 20227
(viii) Is it fact that no OTP is sent on the registered mobile or e mail linked to Aadhar card of a minor while undertaking First time Biometrics (whose biometrics was not taken earlier being infant below 5 years age)?
(ix) Is it fact that no OTP is sent on the registered mobile or e mail linked to Aadhar card of a minor while undertaking changes/alterations to address, mobile number and head of family in the Aadhar Card?
(x) Who is the person responsible by post in UIDAI to make the changes in Aadhar in this case? Please provide name with designation of authorized person of UIDAI in this regard."
The CPIO, Unique Identification Authority of India (UIDAI), Chandigarh vide letter dated 19.12.2022 provided point wise response to the Appellant.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 13.01.2023. The FAA vide order dated 08.02.2023 upheld the reply of CPIO and stated that the information sought cannot be disclosed as per Section 28 (5) of the Aadhar Act, 2016. The Appellant was also advised to approach an appropriate forum for redressal of his personal grievances.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
A written submission was received from the CPIO and Director, UIDAI Chandigarh vide letter dated 14.05.2024 which has been taken on record.
Facts emerging in Course of Hearing:
Appellant: 1. Represented by Comdr Gopal Bharti (Retd) Page 2 of 6
2. Shri Fanish Kumar Rai, Advocate Respondent: Shri Jitendra Sethia, CPIO and Director, UIDAI, Chandigarh The Appellant's representative stated that while denying information u/s 28 (5) of the Aadhar Act, 2016, the Respondent completely failed to appreciate that the Appellant is not a third party but the natural guardian of his minor daughter Pranaya Bharti as per Section 6 of the Hindu Minority and Guardianship Act 1956 and hence he is entitled to get the desired information. Furthermore, as per Section 22 of the RTI Act, 2005, the provisions contained under the RTI Act will have an overriding effect and would thus prevail over any other law i.e., the Aadhar Act, 2016. During the hearing, he added that the Aadhar Act last underwent an amendment in 2019 whereas the RTI Act was last amended in the year 2022. Therefore based on the fact that the RTI Act, 2005 was amended more recently, it should be considered to be the prevailing law for deciding on disclosure of information more so for the fact that UIDAI is not an organisation exempted from the purview of the RTI Act as per Section 24 (1) r/w the Second Schedule of the RTI Act, 2005. It was also argued during the hearing that nowhere in the replies provided to him any of the exemption u/s 8 (1) of the RTI Act, 2005 were cited which is in clear violation to the due process since all information held and available with a public authority has to be disclosed unless clearly exempted under any of the exemptions spelt out in the RTI Act.
Explaining the background of the matter, the Appellant's representative stated that till 23.07.2022, Pranaya Bharti and wife of the Appellant Smt Brahmita Monga @ Brahmita Bharti were living in the company of the Appellant at Gurugram, Haryana but since 24.07.202,2 wife of the Appellant took Pranaya Bharti to her parents' home at Ashok Vihar, New Delhi and started getting changes done in the Aadhar Card details of Pranaya Bharti without the knowledge of the Appellant much less his consent for the same. Therefore, being concerned for the welfare and the well-being of Pranaya Bharti, the Appellant sought the information which ought to have been supplied by the Respondent in the prevailing facts and circumstances. The Appellant's representative further stated that the Appellant had mentioned the Aadhar Card number of Pranaya Bharti in his RTI application which makes it incumbent upon the Respondent to supply the information. Furthermore, in case the CPIO was not willing to disclose the information he should have followed the due procedure prescribed u/s 11 of the RTI Act, 2005 and issued notice to the child's mother. Based on the response received from the mother either information could have been provided or objections could have been shared with him. The FAA also denied the information without any application of mind.
Shri Jitendra Sethia reiterated the replies provided to the Appellant and stated that vide letter dated 16.12.2022 detailed point wise response was provided to the Appellant. He thereafter referred to his written submission dated 14.05.2024 and stated that the applicant had sought information regarding address/mobile number update in his daughter's Aadhaar. He had also desired all the documents that were submitted for these changes/alteration. In response, the CPIO provided the link with which the Page 3 of 6 applicant might see the history of his daughter's Aadhaar being her natural guardian as to when her Aadhaar was updated and which type of updation was carried out. As far as providing the supporting documents is concerned, it is submitted that Aadhaar Enrolment/Update of an individual/resident is carried out in accordance with the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (as amended in 2019) and prevailing Aadhaar (Enrolment & Update) Regulations, 2016 as amended from time to time. As the information provided (including the prescribed documents) by such individual/resident to UIDAI for generation of Aadhaar Number/updating demographic or biometric information under the said Act is personal and confidential in nature. Therefore, the sought information could not be provided u/s 28(5) of Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 which states:
"Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority of any of its officers or other employees or any agency that maintains the Central Identities Data Repository (CIDR) shall not, whether during his service or thereafter, reveal any information stored in Central Identities Data Repository or authentication record to anyone:
Provided that an Aadhaar number holder may request the Authority to provide access to his identity information excluding his core biometric information in such manner as may be specified by regulations".
As any document/personal information provided by residents is stored in Central Identity Data Repository (CIDR) hence, the same was not supplied to him in accordance with section 28(5) of Aadhaar Act, 2016. Furthermore, Regulation 3 (4) of the Aadhar (Sharing of Information) Regulations 2016 gives UIDAI a right to share demographic information and photograph and the authentication records of the Aadhar number holder but only when required to do so under Section 33 (1) of the Act which is the only exception on the restriction of sharing of information under the Act which says:
33. Disclosure of information in certain cases.--(1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or sub-section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a 2 [Judge of a High Court]:
Provided that no order by the court under this sub-section shall be made without giving an opportunity of hearing to the Authority 3 [and the concerned Aadhaar number holder].
3 [Provided further that the core biometric information shall not be disclosed under this sub-section.
Reference was also invited to similar case titled Shri Rahul Rajan Shinde vs. CPIO, UIDAI, Regional Office-Mumbai where the appellant had sought documents along with change request form to make changes in the Aadhaar of his minor daughter (Rajul Rahul Shinde, Age-6 years that time). That was also a family dispute case and the child was living with her maternal Grand-
Page 4 of 6father. In the said case the Hon'ble CIC had upheld the submission of the CPIO. UIDAI, RO-Mumbai and found the denial of furnishing information justified and apt even u/s 8(1)(j) of the RTI Act, 2005. Hon'ble CIC had also observed that the question regarding disclosure of information of minor child could not be decided solely on the basis of the legal rights of the parties but on the sole criterion of the interest and welfare of the minor and it was also considered in the case as to who had the physical custody of the minor.
In the instant case, at the time of replying to the First Appeal it was learnt that there is court Case pending before the appropriate Court regarding the custody of the minor child and the mother had the physical custody of the child. Besides, the Authority is not aware about the present situation between both the parties viz. Shri Ishan Bharti and Smt Bhramita Bharti/Monga. The appellant had requested for documents used for his daughter's Aadhaar updation. Such documents carry the address of the resident. Notwithstanding that UIDAI regulation 28 (5) do not permit sharing of data stored in CIDR: had such information been shared with anyone, it would have also attracted sections 8 (1)(g) and 8 (1) (j) of RTI Act, 2005 as such disclosure would be an invasion of some other resident's Privacy.
Furthermore, the Appellant is aggrieved with non-invocation of section 11 of Act, 2005 in his case. The Appellant had mentioned various cases in his First Appeal where Hon'ble CIC had directed to invoke section 11 of RT! Act, 2005. The Appellant was aggrieved that the CPIO did not ensure compliance with Section 11 of the RTI Act, 2005 in his case too. It is submitted that Section 11 of the RTI Act, 2005 is invoked where sought information pertains to 'Third Party' and through this section his/ her consent is taken before divulging such information to the applicant. The instant matter of Shri Ishan Bharti has never been placed under 'third party' category by CPIO. So the question of invoking Section 11 of the RTI Act, 2005 does not arise. Moreover, had Shri Ishan Bharti sought his own information the same would not have been provided to him as Section 28 (5) of the Aadhar Act does not allow them to do so.
Regarding the contention of the Appellant that the RTI Act as per Section 22 of the Act has an overriding effect over any other law, he referred to the decision of the Supreme Court in Bank of India vs Ketan Prakash & Ors, 2008 wherein the Court observed that if two enactments have competing non obstante provisions and nothing repugnant then the non obstante clause of the subsequent statute/ act would prevail over the earlier enactment. Therefore the Aadhar Act 2016 (amended in 2019) being the later enactment should prevail over the formerly enacted RTI Act, 2005. Furthermore, RTI Act is not the proper law for redressal of grievances/ disputes and there are other appropriate forum (s) for resolving such matters.
Decision:
Keeping in view the facts of the case and the submissions made by both the parties, the Commission is of the view that an appropriate response as per the provisions of the RTI Act, 2005 has been provided by the Respondent. Hence, no further intervention of the Commission is required in the instant matter.Page 5 of 6
With the above observation, the instant Second Appeal stands disposed off accordingly.
Heeralal Samariya (हीरालाल सामररया) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अनिप्रमानणत सत्यानपत प्रनत) S. K. Chitkara (एस. के . नचटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 6 of 6 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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