Calcutta High Court (Appellete Side)
For The vs Union Of India And on 3 January, 2019
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P. No. 15233 (W) of 2018
Debashis Nandy
--v--
Union of India & Ors.
Present:
The Hon'ble Justice Protik Prakash Banerjee
For the Petitioner : Mr. Arif Ali, Adv.
For the Private Respondent : Mr. Ambar Banerjee, Adv.
Mrs. Amrita Panja Moulick, Adv.
For the State : Mr. Ashim Kumar Ganguly, Adv.
Ms. Sonal Sinha, Adv.
Ld. Senior Standing Counsel : Mr. Amitesh Banerjee, Adv.
For the Respondents No. 5 & 6: Mr. Tarak Karan, Adv.
Ld. Addl. Solicitor General : Mr. Kaushik Chanda, Adv.
For the Union of India : Mr. Rabi Prosad Mookherjee, Adv.
Dates of Hearing : November 14, 2018 and
December 04, 2018
Judgment on : January 03, 2019
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PROTIK PRAKASH BANERJEE, J.
1. This is an application under Article 226 of the Constitution of India. Essentially the writ petitioner has impugned the manner in which the second respondent records data regarding citizens in India under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 and also the provisions of the (Aadhaar Enrolment and update) Regulation 2018. However, the exact reliefs claimed by the writ petitioner principally are as follows:
(a) A writ of and/or order and/or direction in the nature of Mandamus do issue commanding the respondents authorities, each one of them, their men, agents, servants, subordinates and/or assigns to take steps against the private Respondent for offences committed punishable under the Indian Penal Code and under the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 and Section 31 of the Representation of People Act, 1950 as per the complaint of the petitioner;
(b) A writ of and/or order and/or direction in the nature of Certiorari do issue directing the respondents to forthwith transmit all records pertaining to the instant case so that conscionable justice be done;
2. Nothing else has been prayed for in the writ petition for which a Rule Nisi has been sought. Therefore, the writ petition must be considered as being restricted to not merely the above reliefs but to be considered within the four corners under the said statutes.
3. The writ petitioner is a co-owner of the three storied building at 52 B, Kansari Para Road, Kolkata 700025 along with the named persons who have not been made party to the writ petition. The ground floor of the said premises consisting of two rooms, a kitchen and a bath cum privy and a common court yard as described in paragraphs 4 and 3 of the writ petition. In 1969 it was demised in favour of one Dr. Keshab Bhusan Roy since deceased. He was married and resided there with his 3 wife Meenakshi Roy and his only son Bhaskar Roy. His daughter Debjani Bhattacharya (nee Roy), was married and resided elsewhere after marriagesince February 1985. The respondent no. 8 had a fortuitous surname which was the same as that of Dr. Roy. It is the case of the writ petitioner that he was a domestic help employed by Dr. Roy doing odd jobs in the house and chamber of Dr. Roy. It has been suggested from the Bar that the private respondent was a compounder of the said doctor. On September 24, 2006 the wife of the said doctor expired; on November 3, 2012 the only son of the said doctor expired while living in Netherlands. So, since September, 2006 Dr. Roy used to reside alone at the demised premises.
4. The writ petitioner claims that even after the respondent no. 8 obtained employment in Group D post under the respondent no. 7 he remained with the said doctor and under his employment. Therefore, he also resided with the said doctor. Taking advantage of this residence on the death on January 5, 2015 of the said doctor the private respondent continued in such possession though he had no right to reside there.
5. The writ petitioner has alleged that he and the other co-owners requested him to vacate the demised premises he, however, avoided them on one pretext or the other and remained in possession of the suit property.
6. In or around March 2015 the writ petitioner received summons of the said filed by the private respondent being Title Suit No. 37 of 2015 before the Learned Civil Judge (Junior Division) 4th Court at Alipore, district 24 Parganas for declaration and injunction. In the application for 4 the injunction the private respondent is the plaintiff petitioner alleged the following: -
"That thereafter said Dr. Keshab Bhusan Roy the father of the plaintiff died intestate on 05.01.2015 leaving behind him the plaintiff as his son and the daughter-in-law Soma Roy and grandson Sushmita Roy, the son and widow of deceased son Bhaskar Roy as his legal heirs and successors and the wife Meenakshi Roy and another son Bhaskar Roy predeceased him".
7. The documents disclosed by the private respondent no. 8 in support of the above claim included not merely the electoral identification card issued under the authorities under the Representation of People Act, 1951 but also the aadhar card issued by the respondent no. 2 under the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Act 18 of 16). The writ petitioner therefore was given the impression that the private respondent no. 8 was an illegitimate but biological son of Dr. Keshab Bhushan Roy.
8. However, upon inquiries made with several government authorities, the petitioner came to know that the supporting documents of the private Respondent are forged insofar as they exhibit the name of his father as Dr. Keshab Bhusan Roy with an oblique motive and an ulterior intention to lay claim upon the demised tenancy.
9. An application made by the Petitioner under the Right to Information Act, 2005 before the Joint Director (Rationing) Kolkata, South Division in regard to the name of the private Respondent revealed that the name of the father of the Private Respondent was one 'R. C. Roy'. A similar application was made by the petitioner before the South 5 Eastern Railway by which the Petitioner came to know that the father of the Private Respondent is one 'Rakhal Ch. Roy'.
10. Thereafter, the petitioner lodged a complaint regarding falsification of information with the Chief Electoral Officer, West Bengal contending that the information provided by the private Respondent was false in nature. Pursuant to such complaints, a proceeding was initiated against the private Respondent and after a necessary Field Inquiry, where the private Respondent failed to produce any document establishing that his father's name was 'Dr. Keshab Bhusan Roy' and not 'Rakhal Ch. Roy', an order dated November 15, 2016 was passed by the Electoral Registration Officer by which the father's name of the private Respondent was changed to 'Rakhal Ch. Roy' from Keshab Bhusan Roy.
11. This order dated November 15, 2016 was not challenged by the respondent no. 8. As a matter of fact, on instructions, the learned advocate appearing for the private respondent submitted that his client was the compounder of the original "tenant" Dr. Keshab Bhusan Roy and did not seek leave to challenge the decision dated November 15, 2016 and did not even assert that his son was the son of the said Dr. Keshab Bhusan Roy or dispute what the petitioner was alleging on oath nor seek an opportunity to use any Affidavit-in-Opposition.
12. Finally, the petitioner approached the Respondent No. 2, the Unique Identification Authority of India, seeking action against the private Respondent for offences committed under chapter VII of the Aadhaar Act, 2016 and even lodged a complaint with the Respondent No. 4, the Officer-in-Charge, Kalighat Police Station, against the private Respondent for committing cognizable offence of cheating and of filing 6 false evidence under the Indian Penal Code, 1860. However, no action has been taken by the respective authorities upon the complaints of the petitioner and aggrieved by this, the Petitioner filed this writ petition before this Court seeking the aforesaid prayers.
13. When the matter was moved first on November 14, 2018, I recorded that the respondents had all been served but some of them including the respondents no. 2 and 3 were not represented. In view of the rules of our Court relating to applications under Article 226 of the Constitution of India I could not dispose of the writ petition finally in their absence. Hence, I once again directed service on the said respondents and, requested the learned Additional Solicitor General to assist the Court on the next date fixed being December 4, 2018. On the returnable date, the learned Additional Solicitor General appeared leading the learned advocate for the respondents no. 2 and 3 as also the Union of India including the respondent no.7.
14. In terms of the observations of the order dated November 14, 2018, a question had arisen as to how the Income Tax Authority and the other statutory authorities including the 2nd respondent could have recorded as the father of the private respondent any person merely on the declaration of the private respondent (respondent no. 8.), even though he only had as on the death of the said person (Dr. Keshab Bhusan Roy) a married daughter. What I had really wanted to know was, were the authorities of the respondent no.2 so gullible or so deficient in technology to accept whatever was stated by the individual regarding his "Demographic Information" as defined by the statute or whether there was any procedure for verifying and/or authenticating the same before recording it as part of the process of enrollment.
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15. The Learned Additional Solicitor General alongwith Mr. Mukherjee, submitted that no authentication is made of any material which is declared by an applicant for Aadhar card in his application. It is done merely on the details provided by the applicant in his application. He also submitted that if there is any discrepancy alleged or any other mistake alleged there are also provisions under Regulation 28(1)(c) of the Aadhar (Enrolment and Update) Regulation, 2017 for correction of the same by the Aadhar authority themselves and the writ petitioner may be relegated to such remedy. The learned advocate for the petitioner submits that the penalty under Section 41 of The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Act 18 of 16) can be imposed by the Aadhar authorities as and when they consider and dispose of the application made before the respondent authorities.
16. Even though he asked for further time to file an affidavit, opposing the application he could not give any particular as to which of the records disclosed by the writ petitioner his client the Aadhar authority would dispute. It was very strange that the respondent no. 2 could not give this rather simple information especially since the records relied upon by the writ petitioner are either those issued by statutory authorities or pleadings filed in court and their enclosures, even in 20 days though he could brief learned advocates, and despite service of the writ petition having been effected on it, on August 29, 2018 as appears from the affidavit of service. The office of the respondent no. 2 is at Ranchi in Jharkhand and not very far from Kolkata even by road, let alone by air. Instructions can be given on mobile phone and by electronic means, within minutes. If the respondent no. 2 could not 8 even give this instruction after going through the writ petition and even thereafter, when the engaging them to appear on the returnable date, it does not appear that it has anything to dispute. Again, in view of the Learned Additional Solicitor General's fair submission, there is nothing on merit that the respondent no. 2 can dispute. I therefore do not accede to his request to adjourn the matter.
17. The writ petitioner has challenged the cavalier manner in which the second respondent records date relating to citizens in India. Till very recently, the second respondent under the provisions of The Aadhaar (Targeted Delivery of Financial And Other Subsidies, Benefits And Services) Act, 2016 (Act 18 of 16) had an unlimited mandate of recording the most private information of citizens including their biometric information. This wascriticized as being the beginning of a Fascist State and the matter travelled to the Hon'ble Supreme Court of India. By the judgment of the Hon'ble Supreme Court of India Justice K.S. Puttaswamy (Retd.) And Another--vs-- Union of India And Othersbeing Writ Petition (Civil) No. 494 Of 2012which was decided onSeptember 26, 2018,the law has been well-settled that Aadhaar is not the only mode of identification of a person nor can it be compulsorily demanded as a proof of identity in all cases.
18. One of the criticisms leveled against the system by which the second respondent prepares and issues such Aadhaar Card is that there is neither any sanctity of the information which is provided not any security that such information shall not be available to those who are not expressly authorized to access it. The present writ petition in effect challenges the first part of the system though it does not go far enough as to have the system quashed on the issue of the sanctity or 9 genuineness of the demographic information. To summarize the allegations contained in the writ petition in the facts narrated at paragraphs 1 to 12 of this judgement, according to the writ petitioner, an employee of a deceased tenant of the writ petitioner took advantage of the death of the tenant and alleged falsely that he was the son of the deceased tenant and, in fact, filed a civil suit for declaration of his tenancy on the basis of an Aadhar card where the demographic information which he relied upon for such false allegation, was furnished by him and accepted without verification by the respondent no. 2. There were other documents in which an allegation was made that the deceased tenant was the father of the private respondent (respondent no.
8). For instance, during the pendency of the suit, the respondent no. 6, after due investigation, has duly altered the name of the father of the respondent no. 8 from Keshab Bhusan Roy to Rakhal Chandra Roy in the "Voter Identity Card" of the private respondent as recorded at paragraph 10 above. This appears from annexure to the writ petition which is at page 61 of the writ petition.
19. The Respondent No. 2 before this Court, the Unique Identification Authority of India ("UIDAI" for short) is a statutory body under section 11 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits & Services Act) Act, 2016 ("the Aadhaar Act" for short) which came into force on September 12, 2016. The UIDAI is mandated to issue 12-digit Unique Identification Number called Aadhaar to the residents based on demographic and biometric information submitted by them to the UIDAI at the time of their enrolment into the Aadhaar scheme. These Aadhaar numbers are communicated to the respective holders in physical form vide Aadhaar letters by way of postal communication. 10
20. The system came into a conflict quite recently, with a number of public-spirited citizens approaching the Hon'ble Supreme Court in a number of Public Interest Litigations filed under Article 32 of the Constitution of India seeking that the Aadhaar Act be deemed unconstitutional for its mandatory provisions of enrolment which compulsorily required citizens to part with personal information, being demographic as well as biometric in nature, most importantly in the wake of the Hon'ble Supreme Court's judgment dated August 24, 2017 in Justice K.S. Puttaswamy v. Union of India reported in (2017) 10 SCC 1 which unanimously affirmed that the right to privacy is a fundamental right under the Indian Constitution.
21. However, the issue which seeks judicial determination before this Court is not one which pertains to the violation of the fundamental right to privacy because of leakages to sensitive biometric as well as demographic information, the unauthorized sharing of such information or any other apprehensions with which the Petitioners before the Supreme Court of India were concerned of.Rather, questions have been raised against the very sanctity of an Aadhaar card as a source of individual identification.Therefore, to begin with, a disclaimer must be put to effect that Aadhaar is not the only means to identification and the question of identification of a person based on which a civil dispute would be decided do not solely rests with his/her Aadhaar identification. This legal position can be aptly inferred from the Supreme Court's decision in Justice K. S. Puttaswamy (Retd.) and Another--v--Union of India and Others being Writ Petition (Civil) No. 494 of 2012 (supra). Seen from this angle, the case of the writ petitioner is simply that the private respondent in his Aadhaar application has provided false 11 demographic information with certain oblique and ulterior motive to wrongfully acquire the tenancy of the deceased tenant (Dr. Keshab Bhusan Roy) by projecting himself to be his son with the help of his Aadhaar credentials and that criminal proceedings are not being started against the private respondent.
22. The purpose of an Aadhar is manifold and it could best be understood by looking at the Statement and Objects of the Act. To this extent, reliance is placed upon a two-Judge Bench decision of the Hon'ble Supreme Court in Binoy Viswam--v--Union of India and Others reported in (2017) 7 SCC 59, wherein after taking into consideration the Statement of Objects and Reasons of the Act,the Hon'ble Supreme Court recapitulated the objectives of Aadhaar in the following manner:
"125. By making use of the technology, a method is sought to be devised, in the form of Aadhaar, whereby identity of a person is ascertained in a flawless manner without giving any leeway to any individual to resort to dubious practices of showing multiple identities or fictitious identities. That is why it is given the nomenclature "unique identity".
23. A unique project in itself, the uniqueness of the Aadhar project is supplemented on account of the information collected for the generation of an Aadhar card. It is perhaps for the first time in the history of this country that individual biometric information became a cause of concern for its citizens and therefore a great many eyebrows were raised seeking their protection. One reason why an individual biometric information could be regarded so faultless is perhaps because of its aversion towards falsification. It could thus be said that biometric identification are less prone to falsification and thus more reliable.
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24. A bare perusal of the Aadhaar Act, 2016 makes it patently clear that an individual seeking to register within the Aadhaar scheme has to part with four types of information collected for making an Aadhaar application complete. These are:
(i). Mandatory demographic information comprising name, date of birth, address and gender [Section 2(k) read with Regulation 4(1) of the Aadhaar (Enrolment and Update) Regulations, 2016];
(ii) Optional demographic information [Section 2(k) read with Regulation 4(2) of the Aadhaar (Enrolment and Update) Regulations, 2016].
(iii) Non-core biometric information comprising photograph.
(iv) Core biometric information comprising finger print and iris scan.
25. The biometric information of the individual is the individual's physical that is to say biological particulars which cannot be sent by someone. His retinal scan and finger prints must be provided by him personally by being present before the authorized person of the authority who records the biometric information after the individual has made the application before the respondent no. 2.However, these are information which can be physically verified and are in fact physical - demographic information such as the name, date of birth, address and other relevant information of an applicant requires something more to be verified and something more than mere declaration.
26. Therefore, this aspect of the Aadhaar scheme which concerns recording of the demographic information belonging to the individuals 13 assumes tremendous importance in the context of the present discourse. The Aadhaar Act, 2016 vide section 2 (k) defines 'Demographic Information' as:
Section 2 (k): "demographic information" includes information relating to the name, date of birth, address and other relevant information of an individual, as may be specified by regulations for the purpose of issuing an Aadhaar number, but shall not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history;
27. It is under this head that information concerning the parentage of an individual is sought. This becomes clear from the AADHAAR (ENROLMENT AND UPDATE) REGULATIONS, 2016 dated September 12, 2016 and issued under the authority of the Chief Executive Authority, UIDAI. Rule 10 of the aforesaid regulation lays down guidelines for submission and verification of information of individuals seeking enrolment. Sub-rule 5 of Rule 10 states that the verification of the enrolment data shall be as provided in Schedule III of the aforesaid regulation. Thus, it becomes necessary to understand the verification process in accordance with the aforesaid schedule. For this reason, Schedule III of the aforesaid regulations has been culled out and produced below:
SCHEDULE III Verification of enrolment information (See Regulation 10(5) of these Regulations) Verificatio Information Fields Verification Procedure n Required?14
• Any of the Proof of Identity documents.
• Introducer/ Head of
Name Yes
Family for people
who have no
Personal documents.
Details
• A flag is maintained
to indicate if Date of
Date of Birth .... Birth (DoB) is
verified, declared, or
approximate.
Gender No ---
• Any of the Proof of
Address documents.
Residential Address
Address (for Aadhaar letter • Introducer/ Head of
Yes
Details delivery and other Family for
communications)
people who have no
documents.
• No verification of
Parent / Father's/Mother' s/ Father/Husband/Gu
Guardian Guardian's/Husba Conditional ardian in the case of
Details nd's / Wife's Name adults.
• For children below
15
five years of age,
Father /Mother /
Guardian's name,
Aadhaar number
and biometric
information (any one
modality) shall be
captured for
authentication.
• For adults, Name of
either
Father/Husband/Gu
ardian or
Mother/Wife/Guardi
an is optional.
28. The demographic information under the head "parent/guardian"
and the fields "father's/mother's/husband's/wife's name" are shown to be in Schedule III of the Regulations, but optional in case of regulations. There is no verification required to be done in case of adults for father, husband or guardian. Which means, whatever an applicant says his father's name is, the respondent no. 2 shall gullibly accept it as gospel truth.
29. It is not doubted that the entire system of Aadhaar has been structured in a way to ensure that there is no leakage of information resulting into the violation of the constitutional right to privacy of the 16 citizens from whom such information is collected. However, there has not been enough deliberation upon the other aspect of the system concerning demographic information, namely, as to what happens when such information taken turns out to be false.
30. In the aforesaid judgment dated September 26, 2018, the Hon'ble Supreme Court has been distinctly particular about the use of fingerprinting technology to cure leakages in the system resulting into identity frauds assuming that the biometric identification system can, at best, cure leakages related to identity fraud. As can be observed from paragraph 16 of the aforesaid judgment, several researcheswere conducted in this regard and the Report of the Task Force in this relation have largely delved into the matters pertaining to the accuracy of the information so collected. All of these reports showcase high accuracy rates of using fingerprint and iris authentication to authenticate identities and suggests that these technologies are most viable in the Indian context.
31. However, a glaring lacuna, which is borne out of all these reports, is in respect to the failure to ascertain the veracity of the demographic information received from a candidate when he is an adult, in case of certain matters. This is despite the fact that such information is capable of authentication by the authority which issued any certificate or document certifying it, where it exists. Rather, the overall emphasis has been provided upon the authentication, effectiveness and accuracy of biometric information. The consequences resulting out of this, force me to relook at the definition clause of the Aadhaar Act, 2016 once more. The said Act defines 'identity information' in respect of an individual under section 2 (n) in the following manner:17
Section 2(n): "identity information" in respect of an individual, includes his Aadhaar number, his biometric information and his demographic information;
32. This definition squarely lays down that information, both demographic as well as biometric, establishes the identity of an Aadhaar card holder. Therefore, information collected from an individual during the Aadhaar application process could not be treated with such disparity which would allow even false demographic information to pass under the scanner of the Aadhaar authorities without even being sufficiently verified. In other words, I think it is arbitrary to allow one sort of information establishing the identity of an individual to pass without verification while subjecting another sort of information stringent scrutiny though both are voluntarily submitted by the applicant and are for the same purpose. Such a lackadaisical attitude on the part of the Respondent No. 2 towards important identity information of an individual is sure to frustrate, if not the whole at least a substantial objective of the Aadhaar scheme. If such practices are allowed to pass unremarked under the judicial scanner, it would be diluting the credibility of an Aadhaar Card as far as the demographic information printed upon it is concerned thereby cheating millions in the country who hold their Aadhaar as a concomitant to their identity.
33. This aspect of an Aadhaar can be further explained by resorting to Section 4 of Aadhaar Act, 2016 which lays down the properties of an Aadhaar number. Sub-section (3) of Section 4 reads as under:
"(3) An Aadhaar number, in physical or electronic form subject to authentication and other conditions, as may be specified by regulations, may be accepted as proof of identity of the Aadhaar number holder for any purpose."
[emphasis supplied by me] 18
34. The whole architecture of Aadhaar is devised to give unique identity to the citizens of this country. No doubt, a person can have various documents on the basis of which that individual can establish her identity. It may be in the form of a Passport, Permanent Account Number (PAN) card, Ration card and so on. For the purpose of enrolment itself, a number of documents are prescribed which an individual can produce on the basis of which Aadhaar card can be issued. Thus, such documents, in a way, are also proof of identity. However, there is a fundamental difference between the Aadhaar card as a means of proving identity and other documents through which identity can be established. Enrolment for Aadhaar card also requires giving of demographic information as well as biometric information which is in the form of iris and fingerprints. This process eliminates any chance of duplication. It is emphasized that an individual can manipulate the system by having more than one or even number of PAN cards, passports, ration cards etc., however, when it comes to obtaining an Aadhaar card, there is no possibility of obtaining duplicate card. Sadly, the process installed to collect demographic information of an individual does not stand in the same spirit with which the Aadhaar scheme was projected.
35. Against this backdrop, this Court finds it necessary to refer to certain queries posed by the Petitioners in S.G. Vombatkereand Another--v--Union of India being W.P. (C) No. 829 of 2013 and the responses of the UIDAI on the same. These questions and answers, as referred to in the Justice K. S. Puttaswamy (Retd.) and Another--v-- Union of India and Others being Writ Petition (Civil) No. 494 of 2012 (supra) has been culled out and stated as the following: 19
Q (1) Please confirm that no UIDAI official verifies the correctness of documents offered at the stage of enrolment/updating.
Ans.: As per UIDAI process, the verification of the documents is entrusted to the Registrar. For Verification based on Documents, the verifier present at the Enrolment Centre will verify the documents. Registrars/Enrolment agency must appoint personnel for the verification of documents.
Q (2) Please confirm that UIDAI does not know whether the documents shown at the time of enrolment/updating are genuine or false.
Ans.: The answer is same as in (1) above.
Q (3) Please confirm:
(a) UIDAI does not identify the persons it only matches the biometric information received at the time of authentication with its records and provides a Yes/No response;
Ans.: Biometric authentication of an Aadhaar number holder is always performed as 1:1 biometric match against his/her Aadhaar number (identity) in CIDR. Based on the match, UIDAI provides Yes or No response. A "Yes" response means a positive identification of the Aadhaar number holder. Each enrolment is biometrically de-duplicated against all (1.2 billion) residents to issue the Aadhaar number (or Unique Identity).
Q (b) UIDAI takes no responsibility with respect to the correctness of the name, date of birth or address of the personenrolled.
Ans.: The Name/Address/DOB are derived from the Proof of Identity (POI)/Proof of Address (POA) documents submitted during enrolments. The enrolment/update packet (encrypted) retains a scanned copy of the POI/POA documents used for the enrolment which can be reviewed in case of dispute. UIDAI maintains the update history of each 20 Aadhaar number related to changes in name, address, date of birth etc. Q (4) Please confirm:
(a) UIDAI takes no responsibility with respect to the correct identification of a person.
Ans.: Please refer to Answer (1) above. Additionally, it may be stated that enrolment of Aadhaar is done through a resident enrolment process and verification of the POI/POA document is done against the acceptable documents, as per the UIDAI valid list of documents as provided in Schedule II and III Aadhaar (Enrolment and Update) Regulations, 2016 read with Regulation 10. UIDAI takes responsibility in creating and implementing standards, ensuring matching systems installed in CIDR work as they are designed to do, and providing options to Aadhaar holders in terms of controlling their identity (such as updating their data, locking their biometrics, etc.) and accessing their own authentication records. One of the key goals of Aadhaar is to issue a unique identity for the residents of India. Hence, each enrolment is biometrically de-duplicated against all (1.2 billion) residents to issue the Aadhaar number (or Unique Identity).
36. These are very convincing answers, but not to the questions posed. The descendants of Mr. Nilekani have perfected the doublespeak of 1984 (George Orwell) if not the Yes Minister and Yes Prime Minister (Jonathan Lynn and Anthony Jay, BBC)where it appears that a given question is being answered, though no information is given. The response to the first question in paragraph 35 would have been more honest and correct if it was that if the registrar/enrolment agency appointed personnel to verify the documents submitted for recording the information then the respondent no. 2 or its official could verify the correctness of the document offered at the stage of enrolment. It has clearly not stated that.
37. There is definitely something amiss with the Aadhaar enrollment process if important demographic information such as the name of an 21 applicant's father, as is the case in hand, can be falsified and even go undetected. Thus, in order to get a wider picture of the entire Aadhaar process, the regulations concerning the Aadhaar scheme could not be allowed to evade scrutiny of this Court.
38. Thus, Schedule III of the aforesaid regulations clearly lays down that demographic information so far as the name of an individual applicant's Father or Mother or Guardian or Husband or Wife is concerned is conditional and further no verification is done to that extent in case of adults. This position is further reinforced by the submissions made by the Learned Additional Solicitor General, appearing before this Court on behalf of the respondent Authorities wherein upon a question posed by this Court as to the process of verification of demographic information concerning the parentage of an individual applicant, the Learned Additional Solicitor General submitted that no verification is sought as regards such information and the application is processed on the basis of the bare information provided by the applicants in their application.
39. The malady in the present situation is further magnified by looking as to how arbitrary could the process of verification of demographic information of an Aadhaar applicant could be. One need not forget that misleading or false information in this bracket would result into an offence under section 34 falling under chapter VII of the Aadhaar Act, 2016. It provides for:
Section 34: Whoever impersonates or attempts to impersonate another person, whether dead or alive, real or imaginary, by providing any false demographic information or biometric information, shall be punishable with imprisonment for a term which may extend to three years or 22 with a fine which may extend to ten thousand rupees or with both.
40. Yet in view of the reliefs sought by the petitioner and the pendency of the civil suit where this is also at res and the desire of the petitioner that his complaint culminate in criminal proceedings which are given a lawful conclusion, I cannot look at whether the procedure of recording the demographic information is itself arbitrary and thus struck by Article 14 of the Constitution of India. This therefore shall be considered in a proper case where this falls for a decision.
41. In order to pass an order as sought by the writ petitioner a prima facie finding is necessary to analyze as to whether an offence has been committed or not by the private respondent for indicating in his Aadhaar Card, the name of Dr. Keshab Bhusan Roy as that of his father. The facts of the case show that respondent no. 7, the employer of the private respondent no. 8 in an application under Right to Information Act, 2005 admitted that the name of the father of the private respondent's father according to service records is Rakhal Ch. Roy. This is not the same as Keshab Bhusan Roy. This is on the basis of the declaration and documents submitted by the private respondent. The Field inquiry carried on by the authorities who issue electoral identification cards alongwith photograph - in effect the Electoral Registration Officer - shows that the private respondent has nothing to prove or authenticate that his father's name is anything but Rakhal Ch. Roy and on that basis, has changed the name of the father of the private respondent from Keshab Bhushan Roy to Rakhal Ch. Roy in the electoral identity card of the private respondent. This has not been disputed or challenged by the private respondent as recorded in paragraphs 10 and 11 of this 23 judgment.This casts a serious doubt about the claims made by the private Respondent.
42. Sections 34 to 47 falling under Chapter VII of the Act enumerate various kinds of offences and provide penalties for such offences. For our purposes, relevant Section is Section 34 which makes an act of providing any false demographic information or biometric information with an intent to impersonate or even attempt to impersonate another person whether dead or alive, real or imaginary which is punishable with imprisonment for a term which may extend to three years or with a fine which may extend to ten thousand rupees or with both. Chapter VII contains the offences aforesaid. Section 47 of the said Act of 2016 provides as follows: -
"47. (1) No court shall take cognizance of any offence punishable under this Act, saveon 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 JudicialMagistrate shall try any offence punishable under this Act."
43. Therefore, the only way that complaint made before the respondent no. 4 can be taken cognizance of, or that any step can be taken by the respondent no. 6 on it as prayed for, is if the complaint in question of an offence under the Act of 2016 or the Regulations of 2016 is made by the respondent no. 2. The petitioner is not the respondent no. 2 nor any person authorized by it. However, the petitioner has made a complaint/representation before the respondent no. 2 and also the respondent no. 4. From the undisputed records aforesaid and the discussions above, it is clear that on facts at least the writ petitioner has 24 made out a case of such offence under the Act of 2016 being done by the private respondent as has been alleged by him therein. Accordingly, I feel it is a case where the respondent no. 2 is directed to cause a complaint to be made to the statutory authorities including the respondents no. 4, 5 and 6 that an offence appears to have been done by the private respondent as informed by the petitioner on June 8, 2018 at page 69 and July 1, 2018 at page 71 to two different statutory authorities within two weeks from the date of communication of the order. As and when the said complaint is made, the said statutory authority shall take lawful steps to investigate and take the proceedings to a lawful conclusion. In case of the respondent no. 4, the complaint shall be sent to an officer of a rank not lesser than an Inspector of Police for investigation. In respect of the other statutory authorities they shall act in accordance with their parent law including the Representation of People Act, 19650. The respondent no. 2 and his men, agents, servants, employees, staff, subordinates and/or authorities shall also take proceedings under Regulation 29 of the Aadhaar (Enrolment and Update) Regulations 2016 notified on September 12, 2016 as to whether or not to cancel or omit or deactivate under Regulations 27, 28 and/or 29,the Aadhaar number issued to the private respondent, on the basis of the allegations contained in the said representation at page 69 made to the respondent no. 2 in accordance with law, giving full opportunity of being heard to the petitioner and the private respondent no. 8. He shall take a decision within a period of two months from the date of communication of this order on him. He shall give a prior notice of hearing to both the writ petitioner and the private respondent no. 8 for the first hearing whereafter the date will be fixed during hearing itself. He shall communicate a decision within a further period of seven days from 25 taking his decision. Till such decision and subject to it no benefit shall be taken under the Aadhaar card and/or Aadhaar number issued to the private respondent no. 8 by the private respondent no. 8 nor shall it be relied upon by any statutory authority or public authority or institution or the civil court for any purpose whatsoever.
44. Except that no dispute was raised to any document relied upon by the writ petitioner and that the decision of the respondent no. 6 as referred to in paragraph 10 of this judgment was not challenged by the private respondent and the conduct of the private respondent no.8 as in paragraph 41 of this judgment, nothing has been decided on facts and the respondent no. 2 is free to decide the questions under Regulations 27 and 28 which arise before him under Regulation 29 of the said Regulations. This does not mean that the complaint before the police or the respondent no. 6 shall depend upon the decision of the respondent no. 2. That he must do by order of this court since it would lead to an investigation and not necessarily punishment.All other questions are left to be decided by the appropriate authorities.
45. The writ petition is disposed of accordingly. There shall be no order as to costs.
PROTIK PRAKASH BANERJEE, J.