The Telangana government cannot insist on collecting Aadhaar and caste details from property owners through its Dharani land records portal, the Telangana High Court has declared. In a major setback to the state government’s plan to digitise land records in the state, the court has issued a stay, directed it to not collect any details from non-agricultural land owners on the Dharani portal.
The court’s order, issued on Monday but made public on late Tuesday evening, flagged the use of Aadhaar for purposes not involving welfare schemes, and for the complete absence of provisions to ensure data security. The two-judge bench, headed by Chief Justice Raghavendra Singh Chauhan, held that the government’s mandate was violative of the right to privacy, as established in the Puttaswamy judgement.
The Dharani portal is part of the state government’s grand scheme for land reform in Telangana. Digitisation was supposed to address corruption across the system. Over October, the government went on a publicity drive, calling on citizens who own any kind of land to enter their property ownership details on the portal. Aadhaar and caste details (only confined to broad categories such as OC, SC and ST) were made mandatory.
In October, two separate public interest litigations (PIL) and a writ petition were filed in the court, asking for the court to declare the collection of Aadhaar from property owners and their family members as “unconstitutional”. One of the PILs also asked for the court directions to the government to delete all personal information it has collected till date from its records and databases.
Aadhaar can only be used for welfare schemes, find court
According to the Aadhaar Act, 2016, the court noted, the state government can collect Aadhaar details only for the purpose of establishing identity with regard to welfare scheme. Furthermore, the Dharani scheme was floated under the Telangana Rights in Land and Pattadhar Pass Books Act, 2020 (Act of 2020), which did not prescribe the collection of Aadhaar number.
“Hence, the Dharani Scheme dealing with the agricultural lands, floated under the Act of 2020, cannot be permitted seek Aadhaar Card details from the people” — Telangana High Court
State fails to convince court otherwise: The state Advocate General argued that the government had brought in the system to minimise fraud in property ownership and transfer. He claimed that the state government investment support scheme for farmers, Rythu Bandhu, is clearly a welfare scheme, and seeking Aadhaar details is justified. The court, however, remained unconvinced. It pointed out that the Act of 2020, did not have any provisions on collecting Aadhaar details. “Thus, prima facie, when Dharani portal makes it mandatory that the Aadhaar number must be given, such a requirement does not have the backing of Act of 2020.”
Court questions security of information collected
The court deliberated at length about the security of all personal information collected by the government so far. It held that the data being collected is prone to leakage, or even abuse by the state, and is hence a violation of the right to privacy.
- Safety provisions absent: The Act of 2020 had no provisions concerning the safety and security of information collected with regard to Aadhaar details, found the court. The Information Technology Act, 2000, on the other hand, has prescribed a procedure for the collection of information, its protection, safety and security, safeguards that are missing from the Act of 2020.
“Therefore, the data being collected by the Government is prone to leakage; is prone to being abused by the State, or by a third patty. Such unregulated access to the information data clearly violates the right of privacy, a Fundamental right, of the people at large” — Telangana High Court (emphasis added)
- Government assures data is secure: The state government told the court that has built “sufficient firewalls” to protect and ensure safety of the information collected. It also claimed that when it came to non-agricultural property owners, around one crore people had already registered on the portal. “Therefore, in the opinion of the public, the said portal is safe, sound and secure.” The government’s submission seems to deliberately ignore the fact that a vast majority of these people registered not because they wanted to or thought their information was safe, but were explicitly told they had not alternative.
Unconvinced of the government’s submissions, the court referred to a recent article by the Deccan Chronicle which reported that the portal had possibly been hacked. “Therefore, the State is not justified in claiming that sufficient firewalls have been constructed to protect the data,” the court said.
The court further noted that the Act of 2020 does not have any chapter of provision on how collects the personal details, including Aadhaar details. It posed multiple questions, asking about who possesses this information, how it will be protected, and who has access to it. In fact, the court declared that it is immaterial if there are any allegations of data breach:
“Under what circumstances the information so collected can be accessed? By whom such information can be be accessed? And whether the person whose information is being accessed would have a right to a prior notice or not? Thus, the Act of 2020 nowhere deals with the protection, security and safety of the information data being collected” — Telangana High Court (emphasis added)
- Grave possibility of data misuse: Due to the absence of safety measures, the court noted, there is “grave possibility” that the data collected may be exposed to danger of being misuse, either by the State, by a third party or may be leaked to unknown persons.
“It is rather obvious that the State will not lose anything if the people were not to reveal their caste, or not to mention their Aadhaar number while uploading the details of the agricultural land. However, the people at large will lose vital, and personal information which as mentioned above, may be subjected to grave peril. Even with regard to the non-agricultural land, people will be forced to reveal their sensitive personal data or information. Thus, it is the people who will suffer a setback while the State has nothing to lose. Thus, even the balance of convenience is in favour of the petitioners, and not in favour of the respondent, State” — Telangana High Court (emphasis added)
State can’t collect details from non-agri property owners
The petitioners also challenged all collection of details from non-agricultural land owners in the state. The Act of 2020, they said, was only limited to agricultural land, and government’s insistence on collecting details on non-agricultural land via Dharani portal is “without any backing of law”.
- State’s amended laws led to “mass confusion”: The court noted that the government has amended the Panchayat Raj Act, the Municipal Act and the GHMC Act, requiring people to give fresh property details or transfers. But these amendments have “only led to a mass confusion”. The order quoted extensively from the Act of 2020, which made it “amply clear” that it does not cover non-agricultural land.
“For, Dharani Portal is limited to only agricultural land. But the details of the non-agricultural land is also being sought to be uploaded on the Dharani Portal. Therefore, the requirement of having to place the details of non-agricultural land on Dharani Portal is self-contradictory, and patently illegal” — Telangana High Court (emphasis added)
- Court takes note of government ‘threats’: The court referred to press reports from September, wherein Chief Minister K Chandrasekhar Rao and the government had said that Dharani portal would be the sole platform for transferring “even an inch” of land, along with the mandate to submit Aadhaar details. The state had also cautioned citizens that if they do not have property details uploaded on the portal, they may face difficulty in the future transferring it to their children. The court found that this prohibition of transfer of property is in violation of Articles 21 and 300-A of the Constitution.”Hence, such a threat being held out by the State, is in violation of Articles 21 and 300-A of the Constitution of India.”
State can’t insist on Aadhaar and caste details, declares court
The government sought two weeks time to file its counter. Meanwhile, the Court noted that once sensitive personal information falls into the hands of the State or of a third party, it would cause “irreparable loss” to citizens. “Since the State has not placed any evidence to show that the information data is protected, safe and sound, there is no convincing evidence that in fact, the information is presently safe and sound.”
- The Court directed the government to not insist on caste and Aadhaar details vis-a-vis argicultural land.
- Additionally, the state cannot insist on collection of any detail via Dharani portal vis-a-vis non-agricultural land.
- Until the government files it counter, it has been directed to ensure all information collected so far is kept “safely and securely”, and that no third party has access to it.
The stay will continue till November 23.