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  1. Govt links Aadhaar to rights of poor; galaxy of top lawyers to represent it in case

Govt links Aadhaar to rights of poor; galaxy of top lawyers to represent it in case

With the Supreme Court allowing Aadhaar card to be used for PDS and LPG, the Gujarat government’s petition to the court is using this to get permission to extend it to other schemes...

By: | Updated: October 1, 2015 3:08 PM
Aadhaar card

The Supreme Court will hear all Aadhaar card applications on October 6 and is likely to decide whether the case can now be heard by the same three judge bench or if it should be heard by a larger Constitution bench to which the case has been referred. (PTI)

With the Supreme Court allowing Aadhaar to be used for PDS and LPG, the Gujarat government is petitioning the court to get permission to extend this to other schemes such as pensions and MGNREGA. The Reserve Bank of India’s petition to the SC on its August 11 order also takes much the same line when it links provision of banking services to those that have no other valid document as proof of identity — in a period when mobile banking, especially, will be used to provide banking services, Aadhaar becomes even more critical.

In a move that looks orchestrated by the Prime Minister’s Office (PMO), a clutch of BJP-ruled/friendly states have either already petitioned or are going to petition the SC on being allowed to use Aadhaar for various schemes — the list includes Gujarat, Jharkhand, Andhra Pradesh, Madhya Pradesh and Haryana. While the RBI and the Securities and Exchange Board of India have also filed their own petitions, other regulators like PFRDA and Irda are also expected to join the suit.

A bevy of top lawyers will be arguing different aspects of the case for the state governments/regulators. While the petitioners are represented by senior counsel Shyam Divan, Gopal Subramanium and Meenakshi Arora, the Centre has its highest law officer, attorney general Mukul Rohatgi, arguing its case. Senior counsel Harish Salve is appearing for the Gujarat government, Sebi is being represented by additional solicitor general Tushar Mehta and the RBI by senior counsel Jayant Bhushan. Additional solicitors general Maninder Singh and Pinky Anand are representing the central government. Senior counsel KK Venugopal is appearing for the Centre for Civil Society which is also supporting Aadhaar. The Election Commission is being represented by senior counsel Ashok Desai.

The Supreme Court will hear all applications on October 6 and is likely to decide whether the case can now be heard by the same three-judge bench or if it should be heard by a larger Constitution bench to which the case has been referred. The case has been referred to a larger constitutional bench to determine whether the right to privacy of a citizen is a fundamental right or not.

A three-judge bench of the apex court comprising justices J Chelameswar, SA Bobde and C Nagappan had on August 11 said that “UIDAI/Aadhaar will not be used for any other purposes except PDS, kerosene and LPG distribution system. Even for the public distribution system, kerosene and liquefied petroleum gas (LPG) distribution system, the card will not be mandatory.” It further confined the use of biometric information collected during Aadhaar enrolment only to criminal investigation.

The UIDAI has told the Supreme Court in its application that the restriction on use of Aadhaar cards seems to undermine the government’s ambitious Digital India initiative and has requested for clearance to include Aadhaar’s use for schemes like biometric attendance system, digital certificates and pension payments, among others.

Even the Gujarat government wants the apex court to “permit the use of Aadhaar number not only for the PDS scheme and LPG distribution scheme but also for any social welfare scheme or service of the central government, state governments or like services based on individual consent to enable those who are enrolled/enrolling on a voluntary basis to avail of the services and the benefits of Aadhaar”.

The Aadhaar card scheme, Gujarat has argued, is a fool-proof method for the government to identify the actual beneficiaries of social benefit schemes and not get duped into spending taxpayers’ money on fraudsters.

In its application, Gujarat said “this court, while allowing the use of Aadhaar for PDS and LPG schemes, was guided by the right to food, which is contained in Article 21 of the Constitution. However, it is submitted that the schemes falling under other rights, viz, right to work, right to receive old age or disability pensions under Article 21, may also be treated equally”. Referring to the six central schemes covered under different statutory regimes, the Gujarat government said that the earlier order of the court permitting state agencies to link Aadhaar card for accessing foodgrains under PDS, cooking fuel, and kerosene recognised the right to food under Article 21 of the Constitution.

Similarly, the Gujarat government said that right to work under MGNREGA, right to receive old age or disability pension too should be treated at par to right to food as they too come under Article 21 of the Constitution guaranteeing right to life and personal liberty.

The RBI has asked the Supreme Court to permit it to link Aadhaar cards for availing banking services and identification of citizens on voluntary basis either in the absence of any other officially valid document or otherwise.

Sebi has told the apex court that Aadhaar can become a single document for both proof of identity and address for an individual. “…a single piece of document ie Aadhaar card offers easy and simplified mode for completion of Know Your Client (KYC) requirements while on-boarding a client by any registered intermediary in terms of Prevention of Money Laundering norms… Aadhaar can act as a tool for monitoring various transactions by individuals across financial markets and help in early fraud detection,” the market regulator said in its application.

“If a person has voluntarily obtained an Aadhaar card and then chooses to produce the same as proof of identification, then there should be no reason for banks or financial institutions for preventing the person from doing so,” the application by RBI stated.

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  1. G
    gopal
    Oct 10, 2016 at 2:02 pm
    HUMAN RIGHT VIOLATION INFLICTED AND PERPETRATED AGAINST THE ERSTWHILE 5512 NOW SURVIVING HARDLY 2700) FOOD DEPARTMENT EMPLOYEES ALL OF MORE THAN 70 YEARS OLD LONGING FOR PENSION IN THEIR LIFE TIME SINCE MORE THAN A DECADERespected Sir,In our case we had been sending several Grievance peion in the matter of sanction of central government liberalized pension to the left over 5523 foodtransferee employees of whom only about 2700 are alive . The grievance disposal by nodal officer in the Food Department is far from satisfactory for obvious reasons and the matter is being allowed to linger on and it is for time for your good self to interfere and restore the confidence in the pg grievance mechanism of the Central Government. Having failed to get justice I am perforce to knock at the door of each and every Good hear-ted person with the fond hope of getting justice.That was the reason why my exclusive prayer direct to your honor Sir.Great injustice and human right violation has peen inflicted , rather perpetrated on the erstwhile employees of the Food Department who were transferred en m to the Food Corporation of India during 1967 when 5512 employees out of them were singled out and denied pension even after the IV pay recommendations according to which all cpf optees be should be brought to Central Government Pension Scheme with effect from 01/01/1986. It is a fact on record that there are hardly 3037 employees all India still alive now out of 5512 ex Central Government Department of Food Employees as per bio data submitted by FCI as early as during 2007-08 to the Food Department each day waiting to see our liberalized pension order before our demise and as we are struggling to meet our day to day life became costlier owing to old age medical care. We are employees of Government of India Food Department surviving 70age who are denied pension even after recommendations of two Parliament committee on peion of 14 and 15 Lok Sabha who had confirmed with records doents,evidence that we were wronged and rightly due for pension.The unhelpful atude of the Food Department has already invited comments in report of the Parliament Committee on peions (14th Lok Sabha) which submitted its recommendations in their 8th report of 25th May 2005 according to whichi) The case of Food transferees is totally unique and different from others and these employees were earlier Central Government Employeesii) At the time of amendment of FCI Act in 1968 the Minister had ured te House that service conditions of the Food Transferees will not be less favourable than those of Central Government employeesiii) The FC Act was amended in 1976/77 to protect Food Transferees interest and to enable them to exercise pension optioniv) The liberalized pension scheme 1987 based on 4th Central Pay Commission was extended to several organisation formed through acts of parliament and the same should have beene xtended to Food Transferees by amending the FC Act as was done in 1976/77v) Administrative reasons igned like c alculations return of cpf etc cannot overide the principle of justice and fair play.The Committee concluded that the Government should appreciate the fact that the statutory provisions guarnteen certain set of service conditions in an act ped by the parliament cannot be ignored totally and the exedutive orders issued concerning pay and pension cannot be interpreted in a manner that violate the letter and spirit of an Act ped by the Parliament. As a follow up Food Department had at the end of tenure of previous UPA Government was pleased to recommend to the Cabinet for amending the Section 12 A of the Food Corporations Act 1964 to enable the food transferees to opt for liberalized pension scheme of the Central Government which was made available to the Central Government employees after the IV Pay Commission recommendation.Soon after election the NDA government saw merit in our case and submitted Cabinet Note dated 12/3/15 (reiterating the earlier UPA Cabinet Note dated 20/02/14 (which could not be implemented due to General Elections then). However PMO has returned the Cabinet note and advised the Food Dept followed up with letters dated 9/9/15 18/9/15 for issuing executive order (more so when the Pension Ministry's 1987 circular is already available but not implemented by the Food Department) in consultation Pension Welfare department rather Amendment to 12 A of FCI Act for delivering quick justice. The Food Department sent the file to the Department of Legal deliberately posing the issue whether the Food Department has to amend the FCI Act 1964 (meaning thereby the PMO has not examined the cabinet note properly ) or issue an Executive orders in order to give an option of central pension to the retired food tranferees who are under CPF . It is but natural that Department of Legal affairs opined that the Food Department can do amendment to section 12 A of the FCI Act 1964 as required as though the Food Department itself is fully competent to issue amendment . When it was already decided by PMO for issuing executive order the Department had posed question whether Food Department should go in for Amendment of FCI Act which is contrary to the spirit of PMO directives. In the normal course the Food Department ought to have referred the draft executive order as suggested by PMO and Pension department for legal vetting. Therefore the Department of Food had acted smart in its negative interpretation to violate the letter and spirit under which the PMO directive was issued for issuing executive orders. Therefore Food Department had shown scant regards to PMO directives.The Food Department now trying to put the blame for the delay on the Finance Ministry where as it is on record that the Honorable Finance Minister had accorded Finance Department of Expenditure Department approval vide its Memoum No.25(3)/EV/205 dated 30/12/14 as requested by the Food Ministry OM No.H-11013/2/2011-FCIII dated 5th November 2014 and in the name of finance called for big list of details from the FCI Headquarters. The FCI Headquarters have called for details from Zonal offices and Regional offices (without collecting details for Headquarters staff). The Zonal offices and Regional offices had cooly ignored the directives of FCI Headquarters similar to scant regard shown by Food Department for the PMO directives. Such is the functioning and system working in the Food Department and Food Corporations.Even though the Food Department employees were transferred to the Food Corporation of India retrospectively from 1st March 1969 and the option were required to be exercised on or before 01/09/1969 this could not be done due to physical imposibility since the orders were issued only after October 1972 and calling for option became infructuous . It deserves to be noted that only to overcome this difficulty Section 4(A) to Section 12 A of FCI Act was incorporated through an amendment. Accordingly the option exercised by the employees after October 1972 in consonance with the provisions of such Section 4(A) to Section 12 A of FCI Act was only option and no further option was envisaged or given by the employee. Most importantly, the OM dated 01/05/87 issued by the Department of Pension and Pensioners welfare clearly laid down that the Food transferees are required to be covered automatically under the pension scheme of 1/5/87 and only those who wish to be covered under CPF scheme had to exercise the options in favour of CPF i.e. in the absence of any option, the Food Transferees are automatically brought under the scheme. Further the aforesaid OM mandated that the administrative ministries should issue similar orders in respect of CPF beneficiaries in consultation with the Department of Pension and Pensioners Welfare, but; the Department of Food and Public Distribution did not implement these orders in respect of Food Transferees on wrong notion that they had already exercised option in favour of CPF which is in contravention of the orders of the provision of OM dated 1/5.87.It is important to note that the very purpose of incorporation of Section 12 A and Section 4 A to section 12 A of FCI act was only to sauard the service conditions of the Food Transferees of FCI and also to ensure that their service conditions would in no way become less favorable than their counterparts in the Government Service. However it is seen that the same very provisions is sought to be used against the food tranferees for denying their dues. Such unhelpful and inhuman atude on the part of Food Department officials has already been commented by the Parliament Committee on peions as already indicated .Though it is the policy of the Central Government to simplify procedures to cut delays in processing the disbursal of pension and retirement benefits in our case the matter is dela over three decades . Therefore we feel myself pushed out of bounds as my pension is dela or denied just on technicalities though we had served the Department of Food and Food Corporation of India from its inception and retired without pension and we have been living without pension over decades. we have made umpteen representations through grievance portal but have been receiving same reply that the Government is considering the amendment to FCI Act , in consultation with the FCI. There is suion among st a section or our over 70 years old plus whose number is diminished day by day that there appears to be a hidden agenda to delay and deny us pension as these people are demising day by day they could give natural burial to our claim. If that will be the case why not Central Government give mercy killing to us instead of showing lip sympathy to us? Is it not inhuman to treat the elderly senior citizens like this Sir?The NHRC initiatives in the matter of retrial benefits as a human right has been elaborately described in their first edition of human rights commission dated 10th December 2014. This book not only chronicles the Commissions exposition of retrial benefits as human right but also extols its unique undertakings to alleviate the suffering of innumerable families as bereft of their rightful dues thus leading the nodal agencies of the Indian bureaucratic system towards time deliverance of retrial dues and benefits. According to this release , the commission in numerous cases has observed that there was inordinate delay in the payment of the retirement dues to the employees by the authorities. In number of cases payments were made even after a lapse of more than three decades that too after the intervention of the commission. The perpetrators of these violations came out with untenable excuses for non payment of the pension and other retirement benefits to the beneficiaries. According to this release the National Human right Commission reads the denial of retirement benefits as a violation of the right to life and dignity and thus leading the country's nodal agencies in the understanding that pension may be the only source of livelihood and means of survival for a family hence non payment of these benefits has devastating effects on their lives. If these retirement benefits are not made to them the very survival of these retired employees or next of kin and /or family members of the deceased employees comes under question of blatant violation of their human right. The commissions intervention has been endeavored to realize the fundamental objectives enshrined in article 21 of the consution of India. The Pensioners and the family of the deceased employee have a right to live with dignity and non payment or dela payment of the pensioner benefits he/they get after retirement/death is violation of his/their right to live with dignity. The commissions intervention itself in most of the cases results in payment of of retrial benefits including pension whereas in other cases it esquires into entire matter and recommends payment of the dues in addition to compensation for damages to the victim for non payment or dela payment of the dues and recommend disciplinary action under section 16 of PHR Act 1993 recommends payment of interest on dela paymentI submit that land mark judgement delivered by the Supreme Court of India has not been taken into account according to which Pension is a right and the payment of it does not depend upon the discretion of the Government. Pension is governed by rules and a Government Servant coming within those rules is enled to claim pension and the government CANNOT take a plea of financial burden to deny legitimate dues of the pensioners and the Government SHOULD AVOID unwarranted litigation and not to encourage any litigation for the sake of litigation.As already briefly indicated the 5512 (of whom only about 2700 are alive now ) and their family members of the erstwhile food department employees are victim of human right violations which is perpetrated and they are demising day by day not cared for.In view of foresoing facts, we pray unto thee to kindly be pleased to consider our plight and sufferings and use your good offices with a view to expedite sanction of our Government pension so that those surviving food transferees can see their pension in their life time they mostly being senior citizens of 73 years old.Yours faithfully,P. Sadagopan57 New Raju Street, West MambalamChennai 600033Tamilnadu State10/10/20169884717943/04424899133
    Reply
    1. R
      Rameswar Pattanayak
      Oct 1, 2015 at 7:08 pm
      What was the intent of the PIL peioner? By this, is he not helping persons interested in maintaining multiple ideny or use impersonation. can it be anything other than that with criminal intent? How our Apex Court learned judges are not able to fathom it? Is the lobby of people interested in maintaining multiple ideny and impersonating is so strong to pressurise apex court.
      Reply

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