Aadhaar/ Unique Identification Number: SC verdict, 2018

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SC’s Aadhaar verdict of 2018

‘Constitutionally Valid; but not mandatory at banks, examinations, phones, schools’

Dhananjay Mahapatra, Aadhaar Stays, Minus Fangs And Pangs, September 27, 2018: The Times of India

SC Upholds Constitutional Validity Of Unique ID, Dissenting Judge Calls It A ‘Violation Of Fundamental Rights’

You Don’t Have To Link Phone Or Bank A/c; Pvt Cos Can’t Demand No.

The Supreme Court upheld the validity of the Aadhaar Act, terming it a beneficial legislation, but weeded out provisions which had potential for misuse. Aadhaar will no longer be mandatory for opening bank accounts, buying mobile phone SIM cards, getting school admissions, or for appearing in board or common entrance examinations.

The SC also ruled that Aadhaar would be voluntary for those who do not intend to receive any subsidy, benefit or services under welfare schemes, and should only be given to Indian nationals. However, those filing income tax returns must link their Aadhaar with their PAN (Permanent Account Number).

A five-judge Constitution bench of CJI Dipak Misra and Justices A K Sikri, A M Khanwilkar, D Y Chandrachud and Ashok Bhushan upheld the NDA government’s Aadhaar legislation by a 4-1 majority, but said its insistence on linkage to bank accounts and mobile phones was disproportionate and every citizen could not be suspected of acquiring black money.

“The portion of Section 57 of Aadhaar Act which enables corporate bodies and individuals to seek authentication is held to be unconstitutional,” the majority verdict said, agreeing with the petitioners that such a provision could lead to sharing of protected data and privacy of citizens with private bodies.

The court, while taking note of apprehensions expressed about Aadhaar’s potential misuse, rebuffed their opposition to passage of the Aadhaar Bill as a money bill and said it was perfectly justified.

The opposition could have stalled the bill in the Rajya Sabha. However, the Lok Sabha Speaker upheld categorisation of the Aadhaar legislation as a money bill — which reduced the Upper House’s role to rendering a mere advisory on corrections required in the bill.

Of the 1,448-page judgment, Justice Sikri wrote the majority judgment for himself, CJI Misra and Justice Khanwilkar, running into 567 pages. Justice Bhushan penned a separate but almost concurrent 400-page opinion.


Can’t deny benefits to needy for not having Aadhaar: SC

Delivering a powerful 481-page dissent judgment, Justice Chandrachud said categorisation of an ordinary Aadhaar bill as money bill was wrong and its passage without voting in Rajya Sabha rendered it unconstitutional. Justice Chandrachud also raised serious issues about Aadhaar having the potential to turn India into a surveillance state.

The scathing observations, however, paled before the pat the NDA government got, with the majority judgment endorsing the idea of Aadhaar as advantageous to the underprivileged millions. “We have come to the conclusion that Aadhaar Act is a beneficial legislation which is aimed at empowering millions of people in the country,” the court said. However, it added, “We are of the view that there is a need for a proper legislative mechanism for data protection.”

It also turned down the contention of the petitioners, 31 in all, that Aadhaar was a means to convert India into a surveillance state. “The architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. This is ensured by the manner in which the Aadhaar project operates,” Justice Sikri said and detailed Aadhaar’s embedded security and safety measures narrated by UIDAI CEO Ajay Bhushan Pandey It also did not find evidence to suggest, as argued by petitioners, that Aadhaar was meant to create 360 degree profiles of individuals. “We are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information. Insofar as authentication is concerned, the Centre and the UIDAI rightly pointed out that there are sufficient safeguard mechanisms,” the SC said.

However, the bench struck down Regulation 27 (1) of Aadhaar which provided that authentication records were to be stored for five years. Drastically reducing this, the SC said storing Aadhaar authentication records for six months would serve the purpose.

The SC also struck down Section 33(1) of Aadhaar which permitted a joint secretary level officer to permit release of biometric and demographic data of a person from UIDAI for the purpose of national security. The court said non-involvement of a judicial officer, preferably an HC judge, in adjudicating the need for such data release to investigating agencies and the absence of chance to the aggrieved person to challenge such a decision made the provision bad in law.

Striking down parts of Section 57 of the Aadhaar law, the court said, “We have impressed upon the government to bring out a robust data protection regime in the form of an enactment (legislation) on the basis of Justice B N Srikrishna Committee report with necessary modifications thereto as may be deemed appropriate.”

On whether Aadhaar violated privacy, the majority took a broader view of what constituted privacy and extended it to cover dignity. It said Aadhaar, backed by a law, was to ensure human dignity through socio-economic uplift of marginalised sections by ensuring that subsidies, benefits and services reached the intended beneficiaries through proper identification. “Their entitlement to such socio-economic benefits is also a fundamental right,” the court said.

However, it clarified that non-possession of Aadhaar could not be a ground to deny benefits to the needy under a social welfare scheme provided s/he furnished other identification documents.

The issues that the SC considered

September 27, 2018: The Times of India


1 Whether Aadhaar creates or has tendency to create surveillance state and is, thus, unconstitutional

No. Court rules the argument that Aadhaar would create an architecture for surveillance wasn’t well founded, and that it struck down any provisions of the Act that could give rise to such fears


2 Whether the Aadhaar Act violates right to privacy and is unconstitutional

No. Court rules nothing in the Aadhaar Act violates right to privacy of individual — as defined by the previous SC judgment that held Right to Privacy to be a fundamental right — and that most of the data collected could be considered “in public domain”


3 Whether children, benefits to them & school admissions can be brought within Aadhaar Act

No. Article 21A of the Constitution guarantees right to education as a fundamental right and insisting on an Aadhaar card would infringe on this right as well as on a child’s right to privacy. Consent of the parent or guardian is essential to enroll a child. On attaining majority, the child can choose to exit from Aadhaar


4 Whether certain provisions of the Aadhaar Act relating to enrolment, updates, residency, involving private agencies in enrolment, etc are unconstitutional

The court did not find a basis for some of the apprehensions as it felt encryption and security of data is satisfactory and reasonable safeguards are in place, but made some suggestions regarding amendments and changes


5 Whether the Aadhaar Act defies the concept of limited government, good governance and constitutional trust

The court observes, “...it is difficult to agree with the sweeping proposition advanced by the petitioners that the Aadhaar project is destructive of limited government and constitutional trust,” adding, it has struck down, read down or tweaked “some provisions which we found offending”


6 Whether the Act could be passed as a ‘Money Bill’ within the meaning of Article 110 of the Constitution

Yes. Four of the judges saw no problem in the Act going through as a Money Bill but Justice Chandrachud called it “a fraud on the Constitution” and a “subterfuge”


7 Whether Section 139AA of the Income Tax Act, 1961 relating to linking of Aadhaar and PAN violates the right to privacy and is unconstitutional No


8 Whether Rule 9(a)(17) and notification of Prevention of Money Laundering Rules, 2005, which mandate linking of Aadhaar with bank accounts, are unconstitutional

Yes. The court rules it does not meet the test of proportionality and is also violative of the right to privacy of a person that extends to banking details. It also observes no explanations have been given on how mandatory linking of every bank account will eradicate or reduce problems of money laundering and black money


9 Whether telecom dept’s circular dated March 23, 2017 mandating linking of mobile no. with Aadhaar is illegal and unconstitutional

Yes. Court rules it was a disproportionate and unreasonable state compulsion, and that for the misuse of SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. Court finds this impinged on voluntary nature of Aadhaar


10 Whether certain actions of the respondents are in contravention of the interim orders passed by the court

Court observes that the state was unable to respond to the petitioners’ contention about their being lesser rights-invasive measures for the same purpose. Emphasises that financial exclusion caused due to errors in Aadhaar-based authentication violate an individual’s right to dignity

‘Robust legislation for data protection needed’

Dhananjay Mahapatra, Big Brother no threat but need law to protect data, September 27, 2018: The Times of India


The Supreme Court said under the Aadhaar Act, it would be impossible for the authorities to launch surveillance or profile citizens but that the government urgently needs to enact “robust legislation for data protection”.

“After going through the Aadhaar structure, as demonstrated by UIDAI from provisions of Aadhaar Act and the machinery which the Authority has created for data protection, we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR. Insofar as authentication is concerned, UIDAI and Centre rightly pointed out there are sufficient safeguard mechanism,” said CJI Dipak Misra, and Justices A K Sikri, A M Khanwilkar and Ashok Bhushan.

“Insofar as use and protection of data is concerned, having regard to the principles enshrined in various cases, the matter is examined from stand point of data minimisation, purpose limitation, time period for data retention, data protection and security. We are of the view that apprehensions of petitioners stand assuaged with striking down or reading down or clarification of some of the provisions,” it said.

“We have also impressed upon the respondents, to bring out a robust data protection regime in the form of an enactment on the basis of Justice B N Srikrishna Committee Report with necessary modifications,” it said. Justice Bhushan in his separate judgment said: “Collection of data, its storage and use does not violate fundamental right to privacy.”

Justice D Y Chandrachud was unimpressed by the safeguard measures for data protection under Aadhaar. He said: “The State is under a constitutional obligation to safeguard the dignity of its citizens. Biometric technology, which is the core of the Aadhaar programme, is probabilistic in nature, leading to authentication failures. These authentication failures have led to the denial of rights and legal entitlements.”

“Aadhaar project has failed to account for and remedy the flaws in its framework and design. Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits is violative of human dignity and impermissible under our constitutional scheme,” he said.

‘Prevention of black money no excuse to target every Indian’

Dhananjay Mahapatra, Black Money Logic Finds No Currency In SC, September 27, 2018: The Times of India


SC Rejects Govt Order For Mandatory Link Of Bank Account, Cell Phones With Aadhaar As ‘Arbitrary, Disproportionate’

Putting a spoke in the NDA government’s ‘one nation one card’ plan, the Supreme Court struck down mandatory linkage of Aadhaar with bank accounts and mobile SIM cards saying this was “disproportionate and arbitrary”.

Doing away with the 2017 amendment to rules under the Prevention of Money Laundering Act, which mandated linkage of Aadhaar with bank accounts, CJI Dipak Misra and Justices A K Sikri and A M Khanwilkar said, “Under the garb of prevention of money laundering or black money, there cannot be such sweeping provision which targets every resident of the country as a suspicious person. Presumption of criminality is treated as disproportionate and arbitrary.” While Justice D Y Chandrachud quashed Aadhaar, Justice Ashok Bhushan said mandatory linkage of bank accounts with Aadhaar was not unconstitutional.

Justice Sikri, writing the majority judgment for himself, the CJI and Justice Khanwilkar, said, “Nobody will keep black money in bank account. We accept the possibility of opening an account in an assumed name and keeping black money therein which can be laundered as well. However, persons doing such an act, if at all, would be very few. More importantly, those having bank accounts with modest balance and routine transactions can be safely ruled out. Therefore, the provision in the present form does not meet the test of proportionality. Therefore, for checking this possible malice, there cannot be a mandatory provision for linking of every bank account.”

The court said that compulsory linking and warnings that accounts would be frozen “amounts to depriving a person of his property.” The bench added that RBI’s master direction on KYC in 2016 allowed using alternatives to Aadhaar to open accounts.

Referring to the PM’s Jan Dhan Yojana and encouragement to open ‘zero balance’ accounts, the SC said it encouraged millions of poor to adapt to the good habit of entering into transactions through banks and using digital mode for operating accounts. “Making the requirement of Aadhaar compulsory for all persons in the name of checking money laundering or black money is grossly disproportionate. There should have been a proper study on methods adopted by persons who indulge in money laundering…,” it said.

Taking a similar view on the telecom department circular making Aadhaar mandatory for issuing SIM cards, the bench observed that insisting on Aadhaar “also impinges upon the voluntary nature of the Aadhaar scheme.”

‘Children enrolled in Aadhaar can opt out on turning adults’

Dhananjay Mahapatra, September 27, 2018: The Times of India


The Supreme Court ruled no school could make Aadhaar mandatory for a child’s admission nor could CBSE, UGC or any other educational body make Aadhaar a must for allowing students to appear in examinations.

The majority judgment of CJI Dipak Misra and Justices A K Sikri, A M Khanwilkar and Ashok Bhushan said since Aadhaar was mandatory only for those who received subsidy, benefit or services under government welfare schemes, it could not be insisted upon for school admission, which was neither a subsidy nor a service. The bench frowned upon the HRD ministry’s insistence that schools seek Aadhaar details of every child before admitting them and also link existing students’ Aadhaar number with their admissions.

“Having regard to the fact that a child between the age of 6 and 14 years had the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’,” said Justice Sikri, who wrote the majority verdict.

“For enrolment of children under Aadhaar Act, it would be essential to have the consent of their parents or guardians. On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents shall be given the right to exit from Aadhaar, if they so choose.”

However, it clarified for availing subsidy, benefits and services under government social welfare schemes, authorities could demand Aadhaar number of the child. However, benefits under the schemes could not be denied to a child for want of Aadhaar as long as her/his identity could be established through other documents, the bench said.

This ruling for children assumes significance as UIDAI CEO Ajay Bhushan Pandey had told the court, “School officials, if permitted to act as ‘introducer’, can enrol only when there is parental consent to enrol. The disclosure requirement is implemented through the enrolment form, which is signed by the resident making it informed disclosure.”

Asked whether a child after attaining the age of majority could revoke the consent given by parents for Aadhaar enrolment, Pandey had said, “It is not permissible under the Aadhaar Act. However, residents have the option of permanently locking their biometrics and only temporarily unlocking it when needed for biometric authentication.” The SC permitted exit from Aadhaar for a person on attaining majority if s/ he was enrolled for Aadhaar under parental consent.

Customers can ask companies, banks to delete Aadhaar data

Pankaj Doval, You can ask cos, banks to delete your Aadhaar data, September 27, 2018: The Times of India


The Supreme Court judgment on Aadhaar empowers you to seek removal of your personal information from the records of telcos, banks, mutual funds and insurance companies that had earlier demanded biometric authentication and other details in the absence of legal clarity on the matter.

With the apex court making it clear that Aadhaar linkage with private companies is not mandatory, customers who have parted with the information now have the right to demand that the details be withdrawn or deleted. However, if one insists on doing so, the person will need to provide other authentication documents such as passport, voter ID, and a bank statement.

“In light of the (SC) judgment, an individual can surely seek deletion of his/her Aadhaar details,” a top government functionary said, though requesting anonymity. “Modalities regarding this, though, will need to be clarified and issued by the respective ministries who deal with the various linkages.”

So, any instruction to delete your Aadhaar details stored with telecom companies such as Vodafone-Idea, Airtel and Reliance Jio will need to be issued by the telecom ministry. Similarly, the RBI or the finance ministry will give instructions related to Aadhaar details with banks or other financial institutions.

Rajan Mathews, directorgeneral of mobile operators’ association COAI, said that telecom companies will wait for instructions from the government. “We will abide by the apex court’s ruling on the subject, while awaiting clarifications from the telecom ministry,” Mathews said.

Justice Chandrachud’s minority view

’Aadhaar a tool to make India a surveillance state

Chandrachud: Tool to make India a surveillance state, September 27, 2018: The Times of India


Penning a lone yet powerful dissent on Wednesday, Justice D Y Chandrachud called Aadhaar a constitutional fraud illegally passed as a money bill and said it was a tool empowering authorities to create 360-degree profiles of citizens and converting India into a surveillance state, reports Dhananjay Mahapatra.

He said the bill had no characteristics to warrant the tag of money bill and apparent political expediency led to its classification as such, ostensibly to bypass Rajya Sabha where the government did not have the numbers.

Referring to the RS’s integral role in law making, he said, “This debasement of a democratic institution can’t be allowed to pass. Institutions are crucial to democracy. Debasing them can cause a peril to democratic structures. The Act thus fails to qualify as a money bill under Article 110 of the Constitution. Since the Act was passed as a money bill, even though it does not qualify to be, the passage of the Act is an illegality. ”

‘Aadhaar a constitutional fraud, illegally passed as money bill’

Dhananjay Mahapatra, Lone Voice Of Dissent But A Powerful One, September 27, 2018: The Times of India


‘Aadhaar a constitutional fraud, illegally passed as money bill’

Penning a lone yet powerful dissent, Justice D Y Chandrachud minced no words in terming Aadhaar a constitutional fraud illegally passed in Parliament as a money bill and said it was a sure tool empowering authorities to create 360-degree profiles of citizens and converting India into a surveillance state.

Faulting passage of the Aadhaar legislation, Justice Chandrachud said the bill had no characteristics to warrant the tag of money bill and apparent political expediency led to its classification as such, ostensibly to bypass Rajya Sabha where the ruling dispensation did not have numbers.

Referring to Rajya Sabha’s integral role in law making and deriding bypassing of the Upper House, Justice Chandrachud said, “This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures. The Act thus fails to qualify as a money bill under Article 110 of the Constitution. Since the Act was passed as a money bill, even though it does not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is in violation of Article 110 and therefore is liable to be declared unconstitutional.”

He said the programme involved application of biometric technology which used an individual’s biometric data as the basis of authentication and was, therefore, intimately connected to the individual. “Once a biometric system is compromised, it is compromised for ever. Therefore, it is imperative that concerns about protecting privacy must be addressed while developing a biometric system,” he said.

“On a detailed analysis of the Aadhaar project prior to enactment of Aadhaar Act as well as the Aadhaar Act and accompanying regulations, I conclude that the right to privacy is violated,” he added.

“The Aadhaar project has failed to account for and remedy the flaws in its framework and design which has led to serious instances of exclusion of eligible beneficiaries. Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme which promotes socio-economic rights of citizens is violative of human dignity and impermissible under our constitutional scheme,” Justice Chandrachud said. He added, “Allowing private entities to use Aadhaar numbers under Section 57 (struck down by the majority judgment), will lead to commercial exploitation of personal data of individuals without consent and could also lead to individual profiling.”

Faulting the mandatory approach of the legislation under Section 7, he said, “The state has failed to demonstrate that a less intrusive measure other than biometric authentication would not subserve its purposes. When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. This is contrary to the right to privacy.”

‘Subsidies in Act make it qualify as money bill’

Dhananjay Mahapatra, September 27, 2018: The Times of India


The Supreme Court upheld the Lok Sabha Speaker’s decision to categorise Aadhaar bill as a money bill to bypass vetting by Rajya Sabha where the ruling NDA did not have the numbers and scotched the Congress-led opposition’s charge that the Modi government deliberately avoided the upper House by taking the money bill route.

A five-judge constitution bench by 4-1 majority said, “We are of the opinion that the bill was rightly introduced as money bill. Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely, whether certification by the Speaker about the bill being a money bill is subject to judicial review or not, whether a provision which does not relate to money bill is severable or not. We reiterate that main provision (of Aadhaar bill) is part of money bill and others are only incidental and, therefore, covered by clause (g) of Article 110 of the Constitution.”

Rejecting arguments of senior advocates P Chidambaram and Arvind Datar, CJI Dipak Misra and Justices A K Sikri, A M Khanwilkar and Ashok Bhushan said since Section 7 of Aadhaar Act provided that the expenditure for subsidy, services or benefits under welfare schemes would be met from the Consolidated Fund of India, the bill qualified to be categorised as a money bill. In money bills, Rajya Sabha only has a recommendatory role. It can suggest changes to Lok Sabha, which has the discretion of accepting or rejecting them.

Justice Chandrachud disagreed and said, “The Aadhaar Act fails to qualify as a money bill under Article 110 of the Constitution. Since the Act was passed as a money bill, even though it does not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is... liable to be declared unconstitutional. “By declaring an ordinary bill to be a money bill, the Speaker limits the role of Rajya Sabha... RS has an important role in the making of laws. Superseding the authority of RS is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution.”

Minority judgment is more correct: Justice Puttaswamy

Justice KS Puttaswamy, Minority judgment is more correct, September 27, 2018: The Times of India

The writer is a former Karnataka high court judge and lead petitioner in the case (As told to Chethan Kumar)

MEET THE FIRST PETITIONER & THE FIRST AADHAAR CARDHOLDER

The Aadhaar issue has come a long way from the time the Centre passed an executive order more than five years ago. There will be several interpretations of today’s judgment, which even I am yet to fully grasp; it is a long judgment.

Though the minority judgment by Justice Chandrachud may appear more correct, what will prevail is the majority view on the matter. Given that this is a Constitutional Bench, it is unlikely that another bench, maybe a larger one, will take another opinion.

The other option is to exercise the ‘Invalidation of Judgment’ in Parliament, which Central governments usually do not do. Even if this has to be done, it is a long, complex process.

So, whether we like it or not, we have to abide by the majority judgment, which is that Aadhaar is constitutional. I have my doubts whether this qualifies as a money bill, but if the bench has held it that way, so it shall remain. A money bill has its own definition, I am not sure if this can be passed as such a bill.

The striking down of several sections, especially 57 and 47 are welcome. I never understood why private entities could access all details.

In future, individuals or groups that are affected will need to make their cases separately. It may not be the court’s intention, but the judgment could lead to problems for many people, those cases will have to be dealt with at that time.

As things stand, we have a judgment, and that’s the final word on it for now.

A civil libertarian critique of the judgement

Reetika Khera, A let-down, but dissenting view is reason for hope, September 27, 2018: The Times of India


Khera is a development economist at IIM Ahmedabad

The Aadhaar verdict is disappointing, but I am not dejected or defeated by today’s verdict. There are two reason for this — one, there is some good news in the majority opinion and two, the dissenting opinion offers hope for the future.

The good news

There are several things to cheer about: Section 57, which allowed private firms to ask for Aadhaar has been struck down by the majority opinion. This is important to strike down because it opens the door for corporate surveillance, which is the use of our data by private firms for the purpose of targeted advertising or more harmful things like screening us from medical or car insurance based on mining our data. In his observations while giving the verdict, Justice Chandrachud even ordered the deletion of Aadhaar numbers that have already been collected (say, by mobile companies). The striking down of Section 57 is important, if it is implemented.

Another important section that was struck down is Section 47. This is the section that only allowed UIDAI to initiate legal action on our behalf, if data is violated. The majority opinion of the judges, quite rightly, was that we should have the right to initiate legal action. People should not have to rely on the benevolence of the UIDAI to get redress.

The bad news

The majority opinion has been in favour of continuing Aadhaar with Section 7 more or less intact. The implications of this are far reaching. One, it means the government’s ability to profile and track us and use Aadhaar infrastructure for surveillance remains unaffected by the majority verdict. Apart from some relief for children, the government can continue to ask for Aadhaar, which means back-end interlinking of databases can continue.

Two, Section 7 allows the government to make Aadhaar compulsory for welfare programmes, where there is little evidence of its benefits and some evidence of the harm that is has caused. In extreme cases, Aadhaar-related exclusion has resulted in deaths (25 since 2017).

The majority opinion has upheld the passage of the Aadhaar Act as a money bill. This may set a dangerous precedent for Parliamentary process, where governments without a majority in Rajya Sabha use the Money Bill route, undermining the role of the House.

What lies ahead

There is some pushback against private use of Aadhaar (by striking down Section 57), the verdict does not place adequate controls on the government’s use of Aadhaar (Section 7 stays). What is heartening is that one of the five judges, appears to have taken fully on board the concerns of the petitioners.

We are emboldened in our struggle against Aadhaar by the observations made by Justice Chandrachud. Like him, we believe that the passage of the Aadhaar Act was as a Money Bill “a fraud” on the Constitution but more importantly that the project is unconstitutional.

See also

Aadhaar/ Unique Identification Number (UID)

Aadhaar/ Unique Identification Number: SC verdict, 2018

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