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Interview with Advocate Nipun Saxena- Part II

February 5, 2018

Voices Under 35

As a magazine that brings forth the opinions of the youth, Polemics & Pedantics presents- “Voices Under 35”- an interview series dedicated to interacting with young Indians who have made a mark for themselves in their respective fields. In a country with approximately 800 million people below the age of 35, potential is limitless but so is competition, and anyone with the ability to stand out has tapped into something incredible. We sit down with one such individual- Advocate Nipun Saxena- to discuss the state of India’s legal system, its sensitivities to women, and a lot else in this two part interview series.

 

Mr. Nipun Saxena is a practicing advocate in the Supreme Court of India. He has appeared in various cases with substantial ramifications for our society. In 2012, following the horrific Delhi Gang Rape incident, Mr. Saxena, while still a law student, filed a Public Interest Litigation in the Supreme Court.

Today, Nipun Saxena v. Union of India has become a landmark case involving debates on issues ranging from one stop crisis centers, to witness protection programs and regulation of taxi services such as Uber and Ola from the perspective of women's safety. It also led to the imposition of a fine on the Union Government. In addition, Mr. Saxena is also involved in a petition relating to privacy concerns in the Aadhar project of the Government of India. He is also a visiting faculty at his alma mater- The National Law University, Delhi- and has several international publications to his name.

In part II of this two part interview, Mr. Saxena talks to us about the Office of the Chief Justice of India, Aadhar, and life at the Supreme Court.

You are a petitioner in the Aadhar case. The debate on that issue in the public domain is often limited to the jargon of 'privacy concerns’ making it difficult to conceptualize the tangible implications of the program. Could you explain to our readers what exactly do experts mean by that phrase and what are the possible ways in which the information we provide can be dangerous to our privacy?

 

 

 

At the outset, I must clarify that there are many petitions, and I am appearing for one of the petitioners in the Aadhar group of petitions. Aadhaar Program, conceptualized in 2009, was an ambitious brainchild of the Planning Commission. In Stage 1, popularly called the enrolment process, any person who has resided in India for only 182 days (who may or may not be the citizen) was eligible to obtain an Aadhaar Card in his/her name by simply giving the demographic information (name, age, sex, parent’s name, date of birth, residence) and a more invasive biometric information (which includes finger print impressions of all ten fingers as well as iris scans). Now, this enrolment process was not carried out by the Government agencies, but by private players. Private Companies were entrusted with the task of collecting this sensitive information, storing it and then sending it to a centralized database. In other words, the Central Government was wholly dependent on these private players for the purposes of storing, collecting and retaining the data, at a time when there was no Data Protection Law.  

 

All of this was happening even before the Aadhaar Act came to be passed in March 2016. By time the Act was passed, over 100 Crore residents (and not citizens) had already enrolled under this Aadhaar program. The data consisting of iris scans and fingerprints of all these 100 crore residents had already been leaked. In absence of any data protection law, this information was for sale before anyone. Hackers, Terrorist Groups, Identity Thieves, Big Corporations, or foreign Intelligence Agencies, all had access to this highly sensitive information. An RTI query in 2016 revealed that over 49,000 private companies, which had worked for enrolment in Aadhar, had been blacklisted by the Central Government.

 

In fact, there were news reports that various Government Departments as well as State Departments had published the Unique Aadhaar Number on their websites. Government Officials had no understanding of Aadhaar and the potential ramifications a breach has for society.

"Various reports have revealed that Aadhaar data can be generated at a paltry payment of Rs.500. Contrary to the claims made by the Unique Identification Authority of India, Aadhaar is not full proof. In fact, a series of Reports and Working Papers from Government’s own departments have categorically stated that Aadhaar is a very dangerous program as it seeks to create a real time surveillance state."

Various reports have revealed that Aadhaar data can be generated at a paltry payment of Rs.500. Contrary to the claims made by the Unique Identification Authority of India, Aadhaar is not full proof. In fact, a series of Reports and Working Papers from Government’s own departments have categorically stated that Aadhaar is a very dangerous program as it seeks to create a real time surveillance state. It gives power to the State to carry out en masse surveillance of any individual at its own choosing. With Aadhaar being linked to your PAN Card, your Driving License, your Bank Account (and your Credit/Debit Cards), your mobile phone and to every conceivable transaction that you may carry out, the Government can track and trace your whereabouts in real time.

 

Now some people argue, what is wrong if the Government wishes to do so? The answer is fairly simple. If I as a citizen am abiding with the law and paying my taxes regularly, then I am well within my right to refuse to let the Government poke its nose into where I dine with my family, or which location did I take my Uber to, or which airport lounge I checked in, because doing so amounts to invasion of my Right to Privacy which has already been held to be part of my Fundamental Right. The situation is also grim if you look at it from other angle. The Reserve Bank of India in very proximate future is finalizing a program known as Aadhar Based Payment System or ABPS which requires a customer to only enter the 12-digit Aadhar number to make financial transactions. Given that biometric details have already been leaked, it is extremely easy for anyone to gain access into my account and carry out a transaction. The scam that will result from this will run into billions affecting crores of citizens of this ccountry.

 

Of late the UIDAI has also come up with new 16 digit Virtual ids and real time face recognition, but it is like old wine in a new bottle. If the primary information has been compromised, it does not matter how many layers of security one may create to safeguard it.

 

The most crucial problem is that Aadhar has been made mandatory for availing benefits, subsidies and government services. If a person does not subscribe to Aadhaar, then it would result in a civil death, since he/she won’t be able to access bank accounts, avail any subsidies, admit children into educational institutions or get a LPG connection. Lastly, this secret and sensitive biometric information will go to a Mega Server or central database called Central Information Depository, which will collect and store this data. All that a terrorist organization will have to do is damage or duplicate this data and India will be a sitting duck for cyber invasions. The damage would be catastrophic. If you lose your PAN Card or there is an incident of fake PAN Card, that damage is confined to one person and all that is to be done is filing a lost report and a replacement would be issued. However, loss or corruption of Aadhar Data would be irreversible as biometric information cannot be altered. These are some tangible harms the Supreme Court is currently hearing at length in the case.  

 

There is also an argument made that in a poor country like India, Aadhar can become the panacea for efficient delivery of services to the needy. Do you think that in light of this public benefit, the privacy aspect of UID should not be accorded the highest priority?

 

This argument has found a lot of supporters, primarily those who believe that Aadhar is a panacea that will help in easing off the pragmatic problems that the Government faces while implementing, say a mid-day meal scheme, or a Gram Awas Yojana, or PDS or food subsidies. However, the assumption here is that all the benefits guaranteed under the Aadhar Act are being given to the citizens. The Aadhar Act itself discriminates in as much as it gives benefits to residents, who may or may not be staying here legally, given the influx of illegal immigrants into the country. I would certainly not want the money spent in taxes to go to a non -citizen, who can avail all these benefits that were hitherto only available and guaranteed to the citizens.

"There is a reason why National Identity Programs such as these were mooted and debated in the larger public space and were rolled back in the United Kingdom, Malaysia or United States. Each of these countries concluded that they do not yet have the requisite technological interface to ensure that the system is secure."

 

Besides, there is a reason why National Identity Programs such as these were mooted and debated in the larger public space and were rolled back in the United Kingdom, Malaysia or United States. Each of these countries concluded that they do not yet have the requisite technological interface to ensure that the system is secure. However, the UIDAI claims that it has the best technology and the data cannot be compromised. On the other hand, in its own RTI report and the latest sting operation conducted by a print daily, those claims have been repudiated.

 

Aadhar will become the biggest threat to national security and this threat far outweighs any other benefits that the program might have. A virtual profile of every individual that is collected in real time cannot be served on a platter to be given away to anyone.

 

In the context of contemporaneous issues, could you explain as to what is the established position of the Chief Justice of India vis a vis the other judges of the SC and what is meant by the phrase ‘Master of the Roster’?

 

This issue is slightly tricky since it falls within the four corners of the administrative powers of the Chief Justice of India. The Constitution under Article 145 has empowered the Supreme Court to devise its own rules and procedure. This confers a great deal of power on the office of the Chief Justice. One such power vested in him is the power to allocate matters before a specific bench. This power makes the Chief Justice ‘Master of the Roster’ or simply put, he decides as to which bench will deal with which category of cases.

 

This is the settled law according to various Constitution Bench decisions, and in the recent case of CJAR Petitions. Another school of thought argues that the phrases ‘Master of the Roster’ and ‘Roster of the Master’ are not interchangeable. The legal question that arises, therefore, is whether the Chief Justice of India’s discretion is unfettered or whether the exercise of such discretion has to be in accordance with law. A third aspect is about the applicability of judicial review on this power of the Chief Justice. These questions may arise at an appropriate occasion, but the recent controversy has raised some very important questions.

 

India is often considered to be unique in the sense that its judiciary has evolved into being far more autonomous than those in other democracies. For instance, judges of the US Supreme Court go through a Presidential nomination followed by a Senate hearing. Why do you think this is the case and to what historical events do you attribute this evolution?

 

Indian Constitution is an eclectic amalgam of common law principles and the principles espoused by the famous French Theorist Edwin Montesquieu, crystallized in the doctrine of ‘Separation of Powers’. Separation of Powers means that all three instruments of the State must be distinct from each other, so as to ensure that they do not encroach into each other’s domain. This ensures functional autonomy in a democracy, since it prevents one organ from interfering into the affairs of another. One aspect of Separation of Powers is that the authority to perform one’s defined role, as well as the procedure for appointment must not be influenced in any manner by any of the other organs of the state.

"The Indian System has departed from the American practice simply because the Government of India is the largest litigating party in the Supreme Court."

The American System is a departure from the Indian system since the judges are appointed after a Presidential nomination and a Senate confirmation. This makes the appointment procedure very opaque and amenable to political influence. You must have come across judges being branded as “Pro Government” or “liberal” and “conservationist” in the American System.The Indian System has departed from the American practice simply because the Government of India is the largest litigating party in the Supreme Court. If the Government is given the power to nominate its own candidates to the highest judicial office in the country, we would face a situation where the impartiality and independence would be jeopardized.

 

This was one of the reasons why the Supreme Court of India rejected the 99th Amendment Act to the Constitution ending the National Judicial Appointments Commission (NJAC). The court’s opinion was that the presence of Government representatives on the Committee was unconstitutional. The Supreme Court further held that one of the facets of independence is the power to appoint its own brethren from a pool of judges and practitioners rather than leaving it to the whims and fancies of the Government in power. The Collegium was devised in the aftermath of the First Judges Case, wherein five senior most judges sitting as the Collegium were endowed with the task of appointing and transferring judges of the High Court and appointing the Judges of the Supreme Court.

 

Finally, you have emerged as a legal prodigy, you were still in law school when you petitioned the SC in Nipun Saxena v. Union of India, and have since then fought for women’s rights in India. What advice would you give to youngsters trying to make a mark in the profession?

 

I wouldn’t call myself a legal prodigy, though I would maintain that I am still a student of law. Law is and continues to be a very jealous mistress. This adage cannot be anymore underscored since law by its very nature is possessive. It needs your undivided attention, and it will always reward you handsomely if you give it your commitment. I believe there is no substitute to hard work in this profession or any other profession and you must be tenacious in your efforts to the cause. The responsibility to shoulder is herculean because on a given miscellaneous day hearing, you have less than a minute or two to convince a judge why he must agree with your submissions, because the life, liberty or property of your client hangs in that delicate balance. Therefore, it is quintessential to have the first principles in mind at all times, and a zeal to go beyond the brief to face the queries posed by the Bench.

About the Interviewer

Prashant Khurana is the Founding Editor of Polemics & Pedantics. He is a student of Law at the Faculty of Law, Delhi University. He holds a Bachelor’s degree in History from Hansraj College, Delhi University. Prashant is an accomplished debater, and an active participant and organiser of Model United Nations Conferences and was recently invited as a Chairperson at the University of Kent, United Kingdom for their MUN conference. He has appeared as a guest panellist on Headlines Today (presently, India Today) News Channel and has also interviewed personalities such as Mr. Mani Shankar Aiyar, Dr. Sambit Patra, the Ambassador of Canada to India, among others.

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