Under The Right to Information Act, 2005 (RTI Act), the MHA has refused to disclose the reasons and materials such as file notings which formed the basis for issuing this order. Even more shocking is the MHA's refusal to treat as a valid query. the request for reasons for not complying with the duty of proactive disclosure of all relevant facts and reasons that underpin the order.
Considering the elaborate scheme of Sections 69(1) of IT Act, 69(2) of IT Act and Rule 4 of IT Rules, even a cursory glance at MHA order would reveal that, MHA order is merely an authorisation and not a direction. It follows as a logical corollary that, the 10 agencies which have been authorised, cannot, merely based on MHA order, intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted or received or stored in any computer resource; at least legally.
Review petition has been filed in the Supreme Court against the judgment of the Constitution bench upholding constitutional validity of Aadhaar. Petitioner Imtiyaz Ali Palsaniya has contended that various grounds urged in applications filed weren't considered by court.
Since Rule 4 of 2009 Rules nowhere contemplates the issuance of an omnibus notification, the very issuance of the notification is de hors the provisions of law, it does not further any Legitimate State Interest; on the contrary, it is against the very Rules under which the notification has been passed, leading credence to the widely-speculated belief that the notification may be one of the many steps to create a cyber surveillance infrastructure.
Now that the Section 377, IPC has been read down, the conservative communal elements are targeting sexual minorities by resorting to cunning ways to reinforce regressive social morality over constitutional morality. The Navtej judgment might be a positive and much required step forward, however there are laws like the Beggary Acts of different States, Section 36A of Karnataka Police Act, 1963, which still has the potential to victimise trans-women, and Karnataka Dramatic Performances Act, 1964, which gives immense power to State machineries.
The Supreme Court’s equality jurisprudence now needs to be extended and applied towards existing patriarchal structures within the home and the family. And what better place to start that the antiquated notion of restitution of conjugal rights – Section 9 of Hindu Marriage Act, 1955 – where the courts are directly complicit in upholding and perpetuating patriarchy.
The right to privacy squarely includes an individual’s right to make a moral choice, whether it is with regards to marriage, food, attire, ideology or religion, inter alia. While there is not much judicial discourse on this essential right against moral paternalism, the Kerala High Court recently passed a remarkable judgment recognising an individual’s right against moral paternalism.
The September 26 judgment violates the court’s own landmark ruling on citizen’s constitutional right to privacy by failing to address why biometric data is required at all for benefits and services received from government. It also fails to take account of the fact that its own orders were violated by both government and private companies during the pendency of the hearings and that passing of Aadhaar Act as a Money Bill was simply unconstitutional, as echoed in Justice Chandrachud’s strong dissent.
In the majority judgment passed by the five judge bench of the Supreme Court in the Aadhaar matter (referred to as “the Aadhaar judgment”) yesterday — September 26, 2018, the Supreme Court by a 4:1 majority has held that the Aadhaar project does not tend to create a surveillance state and further declared the Aadhaar Act, save and except some provisions, to be constitutionally valid.
The petitioners are an interesting array of parties, two former judges, several academics, technologists, a few organisations that work for social justice, two retired army personnel who claim that Aadhaar is a massive national security threat, and individuals who have been not given their due services and benefits due to non possession of Aadhaar.