अज्ञश्चाश्रद्दधानश्च संशयात्मा विनश्यति। (But persons who possess neither faith nor knowledge, and who are of an indecisive nature, suffer a downfall)

 

नायं लोकोऽस्ति न परो न सुखं संशयात्मनः ।। (For the indecisive souls, there is no happiness either in this world or the next.) 

 

 

 

 

 

Unjust ideas reincarnate themselves. Injustice anywhere is injustice everywhere. Amid ongoing bitter protest of UK citizens against imminent civil deaths due to the unjust requirement for digital-biometric IDs in the UK, justice Bhushan Ramkrishna Gavai, 52nd chief justice of India is likely to retire on 23 November 2025 without finalising the seven-judge bench to undertake 'Judicial Impact Assessment' of legislations like Aadhaar Act 2016, an electronic commerce law and the Finance Act 2017, an omnibus legislation, which are offensive to the basic structure of the Constitution of India. 

 

UK citizens are not gullible like Indians. The contract agreement with the consortium consisting of UK’s Ernst & Young Private Limited and Netmagic Solutions Pvt Ltd received through the Right to Information (RTI) Act begins with the talisman of Mahatma Gandhi about pondering over how the poorest can get “control over his life and destiny” restored. It will have Indians and the donor-driven political believe that this talisman is its inspiration to participate in this initiative unmindful of the fact that Gandhi’s initial Satyagraha was against biometric profiling. Before joining the Indian National Congress, Gandhi had opposed biometric identification- fingerprint-based registration of Asians in general and Indians and Chinese in particular. In his book, Satyagraha in South Africa, he describes Asiatic Law Amendment Ordinance of 1906 and the Transvaal Asiatic Registration Act, 1907 under which finger printing of Asians was attempted, as a "Black Act" under which registration documents required photo identification and a full set of fingerprints, and these documents were to be carried at all times, and to be made available to the police on demand. Unregistered persons and prohibited immigrants were to be deported without a right of appeal or fined on the spot if they failed to comply with the Act. 

 

It is apparent that the Congress party and other parties have forgotten the lessons from Gandhi’s opposition to biometric identification by the UK government.

 

Significantly, a significant aspect of the Aadhaar Act has been implemented in India by the UK’s Ernst & Young, as a consultant of the unique identification authority of India (UIDAI) by devising “strategy, business models, business cases, and potential revenue streams for CIDR.” CIDR refers to the central identities data repository of Aadhaar numbers. The contract agreement between UIDAI and Ernst & Young states, “The revenue model should strike a balance between the objectives of social inclusion/welfare versus commercial sustainability of the CIDR.…To catalyse uptake, target those customer segments which are at a high level of maturity to use CIDR services.” It also states that UIDAI should “minimise or avoid free services to the extent possible” by making CIDR based identity verification valuable. It envisaged its deployment for “attendance of entrance exams,” “application for gas connection,” “issuance of digital signatures,” “purchase/transfer of property,” “opening of bank account,” “ATM cash withdrawal,” “issue of credit card,” “obtaining mobile phone connection,” “airline check-in” and “check-in to hotels.” It planned a design which ensured irreversible flow of data between the public and private sectors.

 

The contract agreement reveals that “biometric systems are not 100 % accurate” and “uniqueness of the biometrics is still a postulate.” This startling admission pulverises the very edifice on which UID/ Aadhaar and the ministry of home affairs (MHA)’s national population register (NPR) rests. The contract agreement admits, “The loss in information due to limitations of the capture setup or physical conditions of the body, and due (to) the feature representation, there is a non-zero probability that two finger prints or IRIS prints coming from different individuals can be called a match.” The contract agreement underlines it in bold letters. There appears to be an attempt at verbal gymnastics to hide the key message here. In simple words, “non-zero probability that two finger prints or IRIS prints” turning out to be a match means that there is a probability that biometric data of two different individuals can be identical. This disclosure pulverises the claim of the uniqueness of the Aadhaar number stated in the Supreme Court’s judgement. 

 

The contract agreement with Ernst & Young stated that “the unique ID will be a random 12-digit number with the basis for establishing uniqueness of identity being biometrics”. It announces that “we will provide a unique identity to over 113.9 crore people.” This was evidently a questionable announcement because UIDAI, with which the contract agreement was signed, had the mandate to provide unique identity to only 60 crore residents of India, and not to 113.9 crore people. In an earlier RTI reply, UIDAI shared that the Ernst & Young order date was 26 February 2010, wherein the value of the contract was mentioned as Rs7.05 crore.

 

The contract agreement with Ernst & Young states that it proposes to adopt a political, economic, social, technological, legal and environmental (PESTLE) framework to cover all key dimensions of the UID programme. This framework merits attention because it seems to imply rewriting the political geography of the country with hitherto unknown consequences for political rights. 

 

Notably, as the UK's prime minister Rishi Sunak and his wife, Akshata Murty ascended to the ranks of the UK's wealthiest individuals due to Ms Murty's lucrative shareholding in Infosys Limited. Infosys is structurally involved in the creation of India's electronic-biometric ID/Aadhaar number project, the world's largest database project in human history. This project was formally launched in the aftermath of the abandonment of the UK’s biometric national ID project by the UK’s Labour Party government based on the recommendations of a study by the London School of Economics (LSE). Prof. Edgar Whitley, who headed LSE's Identity Project study, had examined the risk of unauthorised access, hacking, the reluctance of businesses to invest in the necessary smart card technology and the serious consequences of computer malfunction in such a centralised scheme and the scheme's underestimated costs. LSE's two earlier studies on electronic medical records and on legislation regulating the powers of public bodies to intercept communications for national security purposes corroborated its specific concerns. LSE’s study was cited in a report on the first Aadhaar-related Bill by India’s parliamentary standing committee on finance, which had trashed the Indian digital-biometric ID project.

 

As the first piece of legislation introduced to Parliament by the UK’s coalition government of Liberal and Conservative parties in May 2010, the UK’s deputy prime minister Nick Clegg had said, ‘The wasteful, bureaucratic and intrusive ID card scheme represents everything that has been wrong with government in recent years. By taking swift action to scrap it, we are making it clear that this government won’t sacrifice people’s liberty for the sake of ministers’ pet projects.” He added: “Cancelling the scheme and abolishing the national identity register is a major step in dismantling the surveillance state - but ID cards are just the tip of the iceberg….” Now that the Labour Party is in power, the UK government has archived the URL of the transcript for the UK’s home secretary announcing the scrapping of ID cards. It is bulldozing the digital ID project of the Tony Blair era despite unprecedented protest. 

 

In India, the current opposition party had introduced biometric-digital ID/Aadhaar, a similar project. The project proponents had cited the UK’s example to justify it. The current ruling party had opposed the biometric-digital ID/Aadhaar while in opposition but is pursuing the path of the UK’s Labour Party.

 

In pursuance of the judgement dated 13 November 2019 in Rojer Mathew vs South Indian Bank Ltd. & Ors. by a five-judge  Constitution bench of chief justice Ranjan Gogoi and Justices NV Ramana, Dr DY Chandrachud, Deepak Gupta and Sanjiv Khanna who had referred the matter to a larger bench. Justice Gavai still has the option of not being remembered for his indecision like his predecessors in this case. 

 

After the retirement of the 46th chief justice on 17 November 2019, five chief justices, namely, Sharad Arvind Bobde, Nuthalapati Venkata Ramana, Uday Umesh Lalit, Dr Chandrachud and Sanjiv Khanna remained indecisive about this case which was referred by the 46th chief justice headed a five-judge Constitution bench to a larger Constitution bench. They were afflicted with indecisiveness with regard to the constitutionality of the Finance Act, 2017 and the Aadhaar Act. Their indecision is reminiscent of Krishna’s words in chapter 4, verse 40 of The Bhagavad Gita.

 

It was referred for hearing and adjudication by a larger bench because the majority of the Dipak Misra, the 45th chief justice-headed five-judge Constitution bench in justice (Retd.) KS Puttaswamy vs Union of India (2018) had pronounced on the constitutional nature of the Aadhaar Act without first delineating the scope of Article 110(1) and principles for interpretation or the repercussions of such a process. On behalf of the majority, justice AK Sikri authored the judgement in question. The majority dictum in the KS Puttaswamy case did not substantially discuss the effect of the word 'only' in Article 110(1) of the Constitution of India and offered any guidance on the repercussions of a finding that some of the provisions of enactments passed as a "Money Bill" do not conform to Article 110(1)(a) to (g) of the Constitution.

 

The 46th chief justice-headed five-judge Constitution bench found that the majority judgement in the KS Puttaswamy case makes its application difficult to the Roger Mathew case and raised a conflict between the judgments of two of the Constitution benches. Almost six years ago, the five-judge Constitution bench found that the Aadhaar Bill was not a Money Bill. But being a Constitution bench of equal strength as that in the KS Puttaswamy case, it directed that this batch of matters be placed before the chief justice of India, on the administrative side, for consideration by a larger bench. Like his predecessors, the 52nd chief justice too is all set to retire without deciding the constitutionality of legislations like the Aadhaar Act, 2016 and the Finance Act 2017. 

 

Meanwhile, the Supreme Court deprived itself of the opportunity of more than four years to apply its judicial mind to the glaring question of the constitutionality of the Aadhaar and Other Laws (Amendment) Ordinance, 2019 and the subsequent Aadhaar and Other Laws (Amendment) Act, 2019. But realising its unconstitutionality, the Parliament repealed the latter by enacting the Repealing and Amending Act, 2023.

 

Notably, Section 66 of the Information Technology Act has provision for computer related offences and Section 66C inserted through The Information Technology (Amendment) Act, 2009 provides for punishment for identity theft.–Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification (UID) feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh. The reference to "unique identification feature of any other person'' in the provisions of the IT law which became effective from 27 October 2009 assumes significance because it is being deployed in the aftermath of the notification dated 28 January 2009 which established UIDAI and continues to be effective through Section 59 of the Aadhaar Act, 2019.

 

Twenty-five years ago, the Information Technology Act, India’s first electronic commerce (e-commerce) law was notified on 17 October 2000 without enacting and notifying any privacy and data protection law. It was enacted to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the government agencies and also to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for connected matters. It was enacted because it was considered necessary to give effect to the UN General Assembly resolution dated 30 January 1997 which adopted the Model Law on Electronic Commerce adopted by the UN Commission on International Trade Law (UNCITRAL) in view of the need for uniformity of the law applicable to alternatives to paper-based methods of communication and storage of information and to promote efficient delivery of government services by means of reliable electronic records.

 

After 28 years of the UN resolution, it is necessary to undertake a rigorous review of the UNCITRAL’s model e-commerce law, Information Technology Act and the Aadhaar Act, 2016, India’s second e-commerce law to ascertain as to how India’s political, social and economic ecosystem has been rewritten and how it has impacted India’s autonomy and sovereignty in the light of the lessons from country’s economic history. It is also germane to compare the impact of adoption and non-adoption of UNCITRAL’s e-commerce law by different countries, with and without privacy and data protection laws.

 

Notably, the Aadhaar Act, the second e-commerce law of India is linked to the initiatives of the World Bank Group and has a UN connection. The financial powers behind commercial and military czars like the beneficial owners of digital entities like Alphabet, Amazon, Meta, Apple, Microsoft and Intel are the promoters of these initiatives of the World Bank Group and the UN who seem to have made governments, legislatures and judicial institutions subservient to their will.

 

The e-commerce law was enacted to ensure that electronic documents are treated as equivalent to paper documents. It was never meant to make paper documents and gazettes redundant and irrelevant.

 

Section 8 of Information Technology Act reads: ‘‘Where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette: Provided that where any rule, regulation, order, by-law, notification or any other matter is published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.’’

 

Subsequently, the press information bureau, Union ministry of housing & urban affairs, issued a release dated 13 December 2013, wherein it stated that ‘‘the printing of Gazette notifications and their simultaneous uploading in digitised form on the Website has been introduced’’ with effect from 1 April 2013. It showed that both the physical printing of the official gazette and the electronic gazette were going to be  published simultaneously in compliance with the letter and spirit of Section 8 of the IT Act.” 

 

But an office memorandum dated 30 September 2015, the Union ministry of urban development misinterpreted the Section to claim that ‘‘In compliance with the provisions of Section 8 of the Information Technology Act, 2000, it has been decided in consultation with Department of Legal Affairs to switch over to exclusive e-publishing of the Government of India Gazette Notification on its official website with effect from 01.10.2015 and to do away with the physical printing of Gazette Notification. The date of publishing shall be the date of e-publication on the official website by way of electronic gazette in respect of the Gazette notification.’’ The act of doing away with the physical printing of gazette notifications fails to comprehend that Section 8 does not create any basis for the discontinuance of physical printing of gazette notifications. It is crystal clear from the bare perusal of the provision that the  requirement of publication of gazette notifications ‘’shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette.’’  

 

The gazette of India notifications are published by the department of publication and are printed by the government of India printing presses regularly. This is an authorised legal document of the government of India. 

 

In Union of India vs GS Chatha Rice Mills (2020), the Supreme Court delivered a judgement dated 23 September 2020, wherein it observed: ‘‘With the change in the manner of publishing gazette notifications from analog to digital, the precise time when the gazette is published in the electronic mode assumes significance.’’ The court did not avail the opportunity to clarify that the discontinuance of physical printing of gazette notifications did not have any legal basis. 

 

In case of the publication of a notification of the gazette of India through the electronic mode, the “time stamp” of its publication determines the moment of its enforceability since 1 October 2015. It implies that it is the ‘‘time stamp’’ that determines the moment of its public access. Section 2 (1) (s) of the Information Technology Act, 2000 states that "‘Electronic Gazette’ means the official gazette published in electronic form.’’ Section 3 of the General Clauses Act, 1897 states that the ‘‘official gazette” or ‘‘gazette” shall mean the gazette of India or the official gazette of a State. The gazette refers to the official public record. 

 

Even Section 81 of the Bharatiya Sakshya Suraksha, 2023 does not create any legal basis for the discontinuance of physical printing of gazette notifications. It reads: ‘‘The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be an electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody."

 

In the United Kingdom, in Blackpool vs Locker (1948, 1 KB 349), the King's Bench refused to enforce regulations that were not available for the public to read. It observed that ''The justification and basis of the maxim 'Ignorance of the law does not excuse any subject' was that information as to the state of all our law was as of right accessible to the public.'' It was held that it will be applicable on all fours only when the entire enactment with its limbs is made publicly accessible and known to the general masses.

 

The e-commerce law does not make paper documents like a physical print of a gazette notification redundant and irrelevant. The utilitarian thinking in law-making concerns itself only with the maximum number of people, it ignores the interests of all the people who do not have access to electronic documents. The paper documents serve as the "original" and are less vulnerable to digital threats like hacking, viruses, or software obsolescence. They become crucial when electronic records are vulnerable or require physical signatures. They provide an enduring, accessible record that bypasses the need for technology, which can be unreliable or can fail. They are needed for their tangibility, security, and legal potency, especially for legal, regulatory, and long-term archiving purposes. Therefore, the Supreme Court ought to intervene to ensure that physical printing of gazette notifications is restarted in compliance with the provisions of Section 8 of the IT Act.  

 

Disregarding the fact that contract law chooses to ignores disparate power, Sir Henry Sumner Maine wrote, ‘‘All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family....the movement of the progressive societies has hitherto been a movement from Status to Contract’’ in his Ancient Law: Its Connection With The Early History Of Society and Its Relation to Modern Ideas (1861). Disputing this proposition, Roscoe Pound, the noted jurist wrote in his paper entitled ‘Liberty of Contract’ in 1909 in Yale Law Journal that the concept of equal rights between employee and employer is a fallacy, but courts persist in it because of mechanical jurisprudence and their concept that law overrides the facts of actual conditions. Contracts are about power in forcing undesired terms on a weaker negotiating adversary; power in imposing terms on a non-negotiating consumer, employee, credit card customer, and the like, and the power in using a contract to override a party’s rights. By now it is clear that Maine’s claim about ‘‘movement from Status to Contract’’ is historically inaccurate and conceptually simplistic.

 

In his paper entitled ‘The Basis of Contract’, published in Harvard Law Review (1933), Morris Cohen argued that contracts are intrinsically part of public law. The public law like the Information Technology Act, 2000 refers to ‘contract’ on nine occasions. The Aadhaar Act, 2016 mentions ‘contract’ on five occasions. The Supreme Court’s judgement by the five-judge Constitution bench on the Aadhaar Act, 2016 dated 26 September 2018 refers to ‘contract’ on 92 occasions. Prior to this, the nine-judge Constitution bench of the court discussed ‘contract’ on 11 occasions in its judgment on the fundamental right to privacy as part of the right to life. In Permanent Record: A Memoir of a Reluctant Whistleblower (2019), the 260-page-long book by Edward Snowden refers to the word ‘‘contract’’ and contractors on 66 occasions. Notably, it has a chapter entitled ‘‘Homo contractus’’ which underlines myriad shades of provisions in standard format contracts. In her 691-page-long book The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, Shoshana Zuboff mentions the word ‘‘contract’’ on 145 occasions. In order to understand the implications of electronic contracts, the smart contract, she provides the example of a smart-home device: the Nest thermostat, an electronic, programmable, and self-learning Wi-Fi-enabled thermostat that optimises heating and cooling of homes and businesses made by a company that was owned by Alphabet, the Google holding company which collects data about its users and environment. It uses motion sensors and computation to “learn” the behaviors of a home’s inhabitants. It gathers data from other connected products such as cars, ovens, fitness trackers, and beds. Each thermostat comes with a “privacy policy,” a “terms-of-service agreement,” and an “end-user licensing agreement.” The researchers have concluded that when one enters the Nest ecosystem of connected devices and apps, the purchase of a single home thermostat entails a huge number of contracts. The word ‘contract’ also refers to subcontracts, or sub-subcontracts, or petty contracts and non-consensual take-or-leave-it standard format contracts. These e-commerce laws, related judgments, and the books underline the centrality of ‘contract’ and the need to unpack the implications of the smart electronic contracts. 

 

A provision or electronic contract-Section 10 A was inserted in the parent law through the Information Technology (Amendment) Bill, 2008. There was no debate on the bill in the Parliament at all. The bill was passed amid pandemonium in both the Lok Sabha and Rajya Sabha. On 22-23 December 2008, both the houses of Parliament were disrupted because of questions regarding the circumstances under which IPS officer, Hemant Karkare, chief of Maharashtra anti-terrorism squad (ATS) was killed during the 26/11 Mumbai terror attacks. It is not clear whether or not the amendment act was based on some UN model e-commerce law drafted by UNCITRAL. 

 

The Information Technology (Amendment) Act, 2009 which contains Section 10A became effective from 27 October 2009. Section 10A reads: ‘‘Validity of contracts formed through electronic means.—Where in a contract formation, the communication of proposals, the acceptance of proposals, the revocation of proposals and acceptances, as the case may be, are expressed in electronic form or by means of an electronic records, such contract shall not be deemed to be unenforceable solely on the ground that such electronic form or means was used for that purpose.’’ It is not clear whether or not the amendment act was based on some UN model e-commerce law drafted by UNCITRAL.  In his paper entitled ‘Contract as Evil’, Peter Linzer wrote in Hastings Law Journal (2015) that a contract which is often described as private law-making often aids evil. 

 

The framers of the amendment law are oblivious of the fact that robust government regulation is needed to protect those who lack negotiating power and skill and the basis of contract and electronic contract, which is free will and liberty, whose absence makes the contracts tainted. 

 

The outsourcing of law-making seems to lessen the legislative burden of the union government and the parliament. These initiatives from the World Bank groups and other international entities saves both these public institutions from the charge of dereliction of duty. Structurally, the CAG has been made too powerless to audit the pernicious implications of the outsourcing of legislative work by both these institutions. 

 

The manner of hurried enactment of the Information Technology (Amendment) Act, 2009 demonstrates that the absence of a Pre-legislative Consultation Policy undermines free will and liberty, which provides legitimacy to contract and electronic contract.

 

Constitutionality of the merger of the cyber appellate tribunal with the telecom disputes settlement and appellate tribunal 

The abnormality of executivisation and tribunalisation of judiciary through bypassing of High Courts continues to be normalised and naturalised although the separation of powers between judiciary, executive, and legislature is a must to avoid despotism. 

 

The erstwhile section 48 of the Information Technology Act, 2000 had a provision for the establishment of one or more appellate tribunals to be known as the cyber appellate tribunal. As per Section 57 of the IT Act, any person aggrieved by an order made by a controller or an executive adjudicating officer under the IT Act could prefer an appeal to the cyber appellate tribunal having jurisdiction in the matter. However, the provision for establishing the cyber appellate tribunal under Section 48 of the IT Act has been merged with the telecom dispute settlement and appellate tribunal  through the controversial Finance Act, 2017 and the Aadhaar and Other Laws (Amendment) Act, 2019. Any person aggrieved by an order made by a controller or an executive adjudicating officer under the IT Act can prefer an appeal to the telecom disputes settlement and appellate tribunal. Since 14 March 2022, justice Dhirubhai Naranbhai Patel is the chairperson of the tribunal. Its current members are: Dr Sanjeev Banzal and justice Ram Krishna Gautam. Dr Banzal was made a member on 16 October 2025. Now that the Aadhaar and Other Laws (Amendment) Act, 2019 has been repealed, there is a lack of clarity on the status and role of the tribunal which was brought through Section 15 of the Aadhaar Amendment Act. 

 

Under the Aadhaar Act, 2016, any person or entity in the Aadhaar ecosystem aggrieved by an order of the executive adjudicating officer may prefer an appeal to the tribunal within a period of forty-five days from the date of receipt of the order appealed against. 

 

The telecom dispute settlement and appellate tribunal is a creature of the telecom services regulatory authority of India (TRAI) Act, 1997. It is meant to be an adjudicative body for disputes which may arise between a licensor and licensee, two or more service providers, or between a service provider and consumers. The TRAI law aims to protect both telecom service providers and their users. Its role does not appear relevant to the purpose of an appellate body under the two e-commerce laws and the Digital Personal Data Protection Act, 2023.

 

Instead of the High Courts, the tribunal is also the appellate tribunal under the Digital Personal Data Protection Act which is yet to become operational because the rules under it have not been notified as yet. 

 

The comprehensive law for the protection of privacy and data protection is yet to see the light of day despite assurances given to the Supreme Court by the Union government and despite the landmark judgement of the nine-judge Constitution bench of the Supreme Court recognising the fundamental right to privacy. 

 

The constitutionality of the Finance Act, 2017 and the merger of the cyber appellate tribunal with the telecom disputes settlement and appellate tribunal is pending before the seven-judge Constitution bench of the Supreme Court. 

 

The Information Technology Act empowers the Controller of Certifying Authorities (and foreign Certifying Authorities with the previous approval of the Central government, and by notification in the official gazette) to a subscriber to extend facilities to decrypt information if the controller is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign Stales or public order or for preventing incitement to the commission of any cognisable offence, for reasons to be recorded in writing, by order, direct any agency of the government to intercept any information transmitted through any computer resource. The subscriber or any person in charge of the computer resource shall, when called upon by any agency which has been directed, extend all facilities and technical assistance to decrypt the information. The subscriber or any person who fails to assist the agency shall be punished with imprisonment.

 

There was a similar provision under Section 57 of the second e-commerce law, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, which has been declared unconstitutional by the Supreme Court's judgement dated 26 September 2018. Section 57 of the Aadhaar Act reads: ‘‘Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect.’’

 

The joint reading of Section 57 with the notification dated 28 January 2009, the notification dated 12 September 2015 by the government of India, and its contract agreements with Ernst & Young, Accenture, L1 Identities Solution, and MongoDB reveals that these foreign entities appear to be in possession of at least four existing Aadhaar databases. The first database is the ‘person database’ which stores the personal attributes of a person (name, address, age, etc) along with his/ her Aadhaar number. The second is the reference database which stores the Aadhaar number of a person along with a unique reference number (which has no relationship with the Aadhaar number of an individual). The third database is the biometric database which stores the biometric information of a person along with the unique reference number and the fourth database is the verification log which records all ID verification done in the past five years.

 

UIDAI’s contract agreements with firms from Five Eyes alliance members of the English-speaking countries (USA, UK, Australia, Canada, and New Zealand) have grave implications for India’s security, autonomy, and sovereignty due to the dereliction of duty by the ministry of electronics and information technology, the ministry of law and justice and the ministry of finance. The Cabinet committee on security and the concerned parliamentary committee on external affairs ought to take stock of the situation because a spark neglected burns the house. 

 

Both the e-commerce laws were enacted without prior legislative consultation. The Pre-Legislative Consultation Policy was formulated by the committee of secretaries under the chairmanship of the Cabinet secretary on 10 January 2014. Subsequent to that every ministry/ department is required to give effect to the policy. But sadly, the ministry of law and justice does not maintain any record relating to compliance by the ministries/ departments with the Pre-Legislative Consultation Policy.

 

Paragraph 9.2 (a) of Chapter 9 of the Manual of Parliamentary Procedure in the government of India provides that the ministry/ department concerned is required to formulate the legislative proposals in consultation with all the interested persons and authorities concerned, including a discussion on the necessity for the proposed legislation and all matters of substance to be embodied therein. Every ministry/ department is required to comply with this requirement.

 

But when a question was raised in the Rajya Sabha regarding non-compliance with the policy,  Kiren Rijiju, Union minister of law and justice replied that ‘‘paragraph 11 of the Pre-Legislative Consultation Policy gives sufficient leeway for the ministry/ department to eschew the Pre-Legislative Consultation Policy on the ground that it is not feasible or desirable so to do‘’ on 10 February 2022. It is evident that citizens are being turned into Homo contractus wherein constitutional provisions and legislative procedures are becoming increasingly subordinate to provisions of contracts and their right to have rights is being made dependent on their unending electronic-biometric profiling. 

 

The e-commerce laws have altered the relationship between the State and the citizen and are bending judicial institutions to ensure that national and international contractual obligations are given precedence over constitutional obligations. For the majesty of the rule of law and the Supreme Court to be meaningful, the constitutionality of the Aadhaar Act, the Information Technology (Amendment) Act, the Finance Act, 2017 and the Digital Personal Data Protection Act, these legislations and subordinate legislations under them must be subjected to the test of Pre-Legislative Consultation and constitutional requirements. 

 

If citizens continue to countenance the outsourcing of legislative and judicial work, they are likely to be turned into subjects who are subservient to the dictates of beneficial owners of the digital empire like the donor-driven political parties and institutions. Alphabet’s Google has abandoned its motto ‘don’t be evil’. An ecosystem needs to be created where if likes of Alphabet, Apple, Amazon, Walmart, Microsoft, Meta and the promoters of Digital-Biometric ID for unending surveillance are deemed practitioners of misanthropy. 

 

What will the application of judicial mind mean when the court has sufficient evidence to infer that beneficial owners of metadata collection and automatic identification technologies have overwhelmed the Government of India and the legislature resulting in electronic and biometric invasion by foreign entities? 

 

Had Aesop, the ancient Greek fabulist been alive, he would have advised the Supreme Court’s seven-judge Constitution bench saying, ‘‘Don't Put All Your Eggs in One Digital Basket.’’