Friday, December 15, 2017

Threats to make mobile connections inoperable without Aadhaar

Chairman (Airtel)

Dear Sir/Madam,

Subject: Compliance of orders of the Supreme Court in WP 494/2012

It is not amusing that you believe that a SIM issued in someone's name is used by the same person, or that terrorists and criminals do KYC [^0] with their own documents or Aadhaar. Because Aadhaar and one time passcode (OTP) are treated as "second factor authentication", SIMs issued with an Aadhaar are a single point for fraudsters to hack identity, commit crime and rob victims of their property, dignity, liberty, equality and access to justice. Bank accounts opened using an Aadhaar and SIM, as well as property transactions, registration of contracts will no longer be in the victims control or with their knowledge and traceability. Because the use of the victims SIM in these instances will leave little deniability, if they are accused of these acts, it will destroy their right to justice.

Furthermore Aadhaar enables terrorists, criminals and anti-national forces to obtain multiple SIMs through eKYC, claims of eKYC, or submitting Aadhaar cards of other persons, and use them in turn to open bank accounts for money laundering and financing anti-national activities. It facilitates obtaining all documents like passport, and drivers licenses by using the new SIM and the Aadhaar. It, therefore, destroys our ability to distinguish a citizen from an illegal immigrant. The SIM treated as a proof of identity of the user allows infiltration of the country, even its defence services, with terrorists and anti-nationals causing a national security threat. The SIMs issued using a victims Aadhaar allows anyone in possession of such SIMs to impersonate the victim in both your private and public life. Not only will they have no way to know of such misuse, but they even have no ability to prove and control the misuse.

Your use of Aadhaar in telecom is, therefore, dangerous, both for the country and me, and also illegal and invalid for the following reasons.

1. You are citing the TRAI/DOT notification citing Supreme Court order of 6 February 2017 [^1] in WP(C) 607/2016 filed by Lokniti as having mandated Aadhaar KYC for mobiles. The order of 2 member bench on 6 February 2017 [^1] in WP(C) 607/2016 does not refer to any orders of WP(C) 494/2012, passed by a larger bench, restraining the use of Aadhaar. While the two-member bench cannot over rule the larger bench, it has not even ordered any mandatory linking.

2. We bring to your attention the fact that TRAI had filed IA 22, 23 of 2015 [^2] in WP(C) 494/2012 on 3 October 2015 requesting the use of Aadhaar for KYC in telecom. The 5 member bench hearing the **matter did not include telecom in the list of permitted uses of Aadhaar** and made it clear that **the Aadhaar is purely voluntary and cannot be made mandatory till the matter is finally decided by this Court**

3. We draw your attention to the fact that the Supreme Court has not vacated these orders, and the matter has not been finally settled. These orders are, therefore, in force.

a) In its first order of September 23, 2013 [^3] 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**". You cannot cause any person to suffer inspite of any authority having mandated Aadhaar. **Anyone threatening or blocking of services would amount to causing suffering and a contempt of the Supreme Court of India.**

b) In its order of August 11, 2015 [^4] 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:

i) "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**;"

ii) **"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".

iii) "Union of India shall **give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card"**.

c) In its order of October 15, 2015 [^5] the 5 member bench ordered that:

i) "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 [^6] 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 Employment Guarantee Scheme (MGNREGS), National Social Assistance Programme (Old Age Pensions, Widow Pensions, Disability Pensions) Prime Minister's Jan Dhan Yojana (PMJDY) and Employees' Providend 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"

ii) **"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]

iii) **"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".**

4. We also draw your attention that the use of Aadhaar for linking to other databases, retention, storage or publishing is prohibited and also a punishable offence under sections 8, 29 and 37 the The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016. [^7]

5. Furthermore section 7 of the The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 [^7] states that "Provided that if an Aadhaar number is not assigned to an individual, the individual shall be offered alternate and viable means of identification for delivery of the subsidy, benefit or service." All citizens of India have already provided many alternate means of identification on the basis of which you have been providing them with communication services to date. There is therefore no necessity of having them provide an Aadhaar number.

6. **I trust you will agree that it is your job to ensure that every notification you follow or cause customers to comply is legal and valid. Your confirmation that TRAI/DOT notifications are illegal and invalid, and that you will not be coerced into implementing illegal notifications, will go a long way in providing reassurance that you protect the country and your customers from risks of illegalities and theft of their assets, highlighted above.**

7. **Your confirmation that you will end the use of Aadhaar in the telecom will go a long way in providing reassurance that you are not continuing to be in contempt of the court, nor are you forcing your customers to be in contempt of the Supreme Court.**

8. **A mail from you in confirmation that you value my business and will therefore continue to protect my ability to communicate with friends, family and associates beyond 2017, would go a long way to reassure me that I can continue to do business with you.**

Thanking you for your support as always,
Sincerely yours,
Nikhil Sheth


1. Chairman TRAI, Mahanagar Doorsanchar Bhawan (next to Zakir Hussain College), Jawaharlal Nehru Marg (Old Minto Road), New Delhi: 110 002 @rssharma3 @trai
2. Registrar, Supreme Court of India, Tilak Marg, New Delhi-110 201 For the attention of the bench hearing WP(C) 494/2012

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