On 2 October 2017, I wrote to Mr RS Sharma, Chairman of Telecom Regulatory Authority of India (TRAI) asking him to issue and publicise an immediate and urgent notification that the Aadhaar linkage is illegal and ordering telcos to discontinue its use.
Open letter to Chairman TRAI
Sanjeev Banzal, Advisor (NSL) at TRAI tweeted to me an unnumbered and unsigned three-page response, titled “Factual Note” that had been tweeted by @trai and retweeted by @rssharma3 (Mr Sharma, Chairman of TRAI) and @shashidigital (Shashi Shekhar, the CEO of Prasar Bharati and Rajya Sabha TV). Their response can be found in the link in Mr Banzal’s tweet to me:
(Response of Advisor (NSL) with link to TRAI tweet with a response to the letter in form of a “Factual Note”)
This note claims to state the facts but rather attempts to justify discarding paper-based KYC, justifying destruction of existing customer acquisition forms, and the position of Mr Banzal in recommending vide No 102–2/2015-NSL-II dated January 20th 2017
, to the Secretary, Department of Telecommunications, to use Aadhaar based eKYC to re-verify existing mobile subscribers.
Since Mr Banzal tweeted this note to my attention, I presume he is the author of this “Factual Note”.
While Mr Banzal admits to the IA on behalf of the TRAI (IA 22, 23 of 2015
) filed by Mr Sanjay Kapur on 3 October 2015, he misquotes the TRAI prayer in IA 23. The Prayer of TRAI in IA 23 is reproduced below.
(The Prayer of the TRAI in IA 23 of 2015)
Mr Banzal fails to note the order of the five-member bench of the Supreme Court passed on 15 October 2015
that unambiguously restricted the use of Aadhaar to specific schemes only on a voluntary basis, reiterated all previous orders of the court from 23 September 2013
, Aadhaar cannot be made mandatory and all IA’s will be heard with main matters.
(The scope of the bench passing orders on 15 October 2015)
(The order of the bench on 15 October 2015)
Mr Banzal quotes the order of 6 February 2017
in WP(C) 607/2016 filed by Lokniti and cites that as a modification of the Supreme Court Order of 11 August 2015
that had restricted the use of Aadhaar. A quick perusal of the order of 6 February 2017
in WP(C) 607/2016 will be enough to show that this does not refer to any orders of WP(C) 494/2013 or include any of the petitioners of WP(C) 494/2013.
Mr Banzal fails to note that the TRAI and Department of Telecom (DoT) misled the Bench by not highlighting that it had intervened in a petition regarding the use of Aadhaar in WP(C) 494/2013 and the matter had been tagged with other cases in the matter pending hearing. He also fails to note that the TRAI and DoT did not bring the orders of the five-member bench in WP(C) 494/2013 dated 11 August 2015
or 15 October 2015
to the attention of the bench hearing WP(C) 607/2016. He also fails to note that none of the petitioners in the matter of WP(C) 494/2013 were asked to have their say in the matter of WP(C) 607/2016, were this to be a modification of any of the Court’s previous orders in WP(C) 607/2016, amounting to a subversion of justice.
Furthermore he fails to note that it is incorrect, misleading, misinforming and contempt of Court to state that the order of 6 February 2017
in WP(C) 607/2016 is a modification of Supreme Court order of 11 August 2015
that had restricted use of Aadhaar. It is also bad in the law to state that a two-member Bench can override orders of a five-member Bench.
It stands that the all TRAI and DoT notifications, circulars and orders causing any use of Aadhaar for anything in telecom are illegal, bad in law and a contempt of the Supreme Court of India. They show disrespect of the Rule of Law.
I responded asking @rsprasad (Ravi Shankar Prasad, Minister of IT), @rssharma3 (Mr Sharma, Chairman, TRAI) and @shashidigital (Shashi Shekhar, CEO Prasar Bharati) the following three questions:
At the time of this writing, there is no response to any of these questions. I can assume this means that none of them regard this as an official response of the government. It also implies that they have no official argument with the facts as outlined by me in my open letter to the Chairman of TRAI. It is important to note that in contrast to the TRAI, the Election Commission of India had shown responsibility, respect to the Supreme Court
, the dignity and grace to respond to the orders of the Supreme Court by ending any linkage with Aadhaar.
I trust Mr Sharma, the Chairman of TRAI as well as the Minister IT, RS Prasad will show responsibility, dignity and grace and uphold respect to the Supreme Court and the Rule of Law by issuing an immediate notification ending the use of Aadhaar for telecom, banking and other uses that are not permitted by the Supreme Court.
(Dr Anupam Saraph is a renowned expert in governance of complex systems and advises governments and businesses across the world. He can be reached @anupamsaraph)