The Super Hercules was recently landed on the Daulat Beg Oldie air field near the China border and have helped in boosting the IAF’s capability to airlift troops closer to the border in times of emergency
In a major setback to the Indian Air Force (IAF), a US-made C-130J Super Hercules Special Operations transport aircraft crashed on Friday near Gwalior killing its five crew members, including four officers.
The aircraft had taken off from the Agra air base.
“One C-130J aircraft crashed 72 miles (115 km) west of Gwalior air base. The aircraft was airborne from Agra at 1000 hours for a routine flying training mission. A Court of Inquiry has been ordered into the cause of the accident,” an IAF spokesperson said.
Police in Jaipur said senior officials, including Superintendent of Police, Karauli, have rushed to the spot of the crash along the Rajasthan and Madhya Pradesh border.
India had recently inducted six C-130J Super Hercules aircraft, which were bought from the US at a cost of around Rs6,000 crore ($1.1 billion) four years ago.
The home base of the 77 squadron ‘Veiled Vipers’ operating the aircraft is Hindan in Ghaziabad.
The aircraft were recently landed on the Daulat Beg Oldie air field near the China border and have helped in boosting the IAF’s capability to airlift troops closer to the border in times of emergency.
Has Nilekani or Congress party ever informed that its biometric Aadhaar is going to be used for surveillance and security? Also is this the reason why very few MPs, MLAs and ministers from Congress have subjected themselves to biometric profiling of Aadhaar or NPR?
On 24 March 2014, the Supreme Court’s bench of Dr Justice BS Chauhan and Justice J Chelameswar heard Mohan Parasaran, Solicitor General of India et al as petitioners and upon hearing the counsel the Court made the following order, “Issue notice. In addition to normal mode of service, dasti service, is permitted. Operation of the impugned order shall remain stayed. In the meanwhile, the present petitioner (Unique Identification Authority of India -UIDAI) is restrained from transferring any biometric information of any person who has been allotted the Aadhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case she is otherwise eligible or entitled. All the authorities are directed to modify their forms, circulars, likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith. Tag and list the matter with main matter i.e. WP(C) No.494/2012.”
The Court was hearing the special leave to Appeal (Criminal) No. 2524/2014 i.e. UIDAI Versus Central Bureau Of Investigation (CBI) that was earlier mentioned before the Chief Justice of India. This case has now been linked with the previous case Writ Petition (Civil) No. 494 of 2012 against the biometric identification based unique identity (UID)/ Aadhaar number.
An RTI application was filed in UIDAI with a request that ‘kindly ensure all pages are intact including annexures marked ‘Non-Disclosure Agreement”, “Technical Bid” and “Commercial Bid”. In a reply dated 5 March 2014, the UIDAI replied, “The Annexures J, & K w.r.t. to Accenture Service Pvt Ltd mentioned Technical Bid and Commercial Bid. The annexures I, J & K w.r.t to L-1 Identity Solutions Operating Private Limited mentioned-non-disclosure Agreement, Technical Bid and Commercial Bids’.”
It further states, “As per Confidentiality Disclosure statement, the document contains confidential information of above firms and they have requested not to disclose the information outside UIDAI or be used for purposes other than the evaluation of their business capabilities. Secondly, this being third party information, the firms were requested for their comments wherein they had denied for sharing of their documents with any applicant.” The RTI application was filed by Qaneez-e-Fatemah Sukhrani.
It may be recalled that Central Information Commission (CIC) had heard the matter of UIDAI's refusal to share copy of all contracts given to French and US biometric technology companies, namely, L1 Identity Solutions and Accenture. Mrs Sushma Singh, the Information Commissioner, gave a letter (No.F12013/096/2012-RTI -UIDAI) of UIDAI to the author who represented the appellant, Mathew Thomas from Bangalore.
UIDAI’s letter written to CIC submits that "contractual obligation in respect of BSP (Biometric Solution Provider) contracts has expired. Therefore, UIDAI has no objection in sharing the following contract details:- a) Copy of contract of UIDAI with M/s L1 Identity Solutions for Biometric Technology; and b) Copy of contract of UIDAI with M/s Accenture for Biometric Technology".
Following this, UIDAI gave the copies of the contract. After examining these documents with regard to the Accenture for Biometric Technology, it has come to notice that the first 237 pages appear to be in order but after that there is a one pager titled Annexure J Technical Bid Technical Bid as submitted by Accenture Services. The Technical Bid document is missing. After that there is a one pager titled Annexure K Commercial Bid Commercial Bid as submitted by Accenture Services Pvt Ltd. The Commercial Bid document is missing.
With regard to the L1 Identity Solutions for Biometric Technology, I notice that the first 236 pages appear to be in order but after that there is a one pager titled Annexure I Non-Disclosure Agreement as submitted by M/s L1 Identity Solutions Operating Company Private Limited. But this document is missing. After that there is a one pager titled Annexure J Technical Bid as submitted by M/s L1 Identity Solutions Operating Company Private Limited. The Technical Bid document is missing. After that there is a one pager titled Annexure K Commercial Bid as submitted by M/s L1 Identity Solutions Operating Company Private Limited. The Commercial Bid document is missing.
In a letter dated 10 September 2013 to UIDAI, the author wrote that reasoning that because "contractual obligation in respect of BSP (Biometric Solution Provider) contracts has expired. Therefore, UIDAI has no objection in sharing the following contract details :- a) Copy of contract of UIDAI with M/s L1 Identity Solutions for Biometric Technology; and b) Copy of contract of UIDAI with M/s Accenture for Biometric Technology" is flawed in the light of the previous attached judgment of CIC.
Under the Right to Information (RTI) Act, the Public Information Officer (PIO) cannot deny information citing commercial confidence for agreements between a public authority and private party. While giving this judgment, CIC said “The claim of 'commercial confidence' in denying access to agreements between private parties and the masters of the public authorities—citizens—runs counter to the principles of the Right to Information.”
“Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of ‘We the people’. Hence if any citizen wants to know the contents of such an agreement he is in the position of a principal asking his agent to disclose to him the terms of the agreement entered into by the agent on behalf of the principal. No agent can refuse to disclose any such information to his principal,” the CIC said in its order dated 27 July 2009.
The Commission was of the view that “The objectives of the RTI Act would be defeated if public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the government’, and therefore these must be kept away from the Public. In fact public feels that quite often the contrary is the case,” the CIC noted. The CIC observed, “Any so called imaginary moral or reciprocal obligation cannot be permitted to subvert a solemn constitutional and legal obligation”, and directed the PIO to provide copy of the agreement.
In the light of the CIC’s order, UIDAI’s refusal to share ‘Non-Disclosure Agreement”, “Technical Bid” and “Commercial Bid” in its reply dated March 5, 2014 is untenable.
In the contract agreement between the President of India, as purchaser and L1 Identity Solutions Operating Company, as a "Biometric Solution Provider" it has been officially admitted that the latter is a corporation of US based in Delaware as of 24 August 2010. Notably, L-1 has since been bought over by French corporate conglomerate, Safran Group after the US Committee on Foreign Investment in the United States (CFIUS) was convinced that there are no unresolved national security concerns with respect to the transaction. L-1 Identity Solutions announced agreement to be acquired by Frenh corporate entity Safran on 20 September 2010.
From the contract agreement between the President of India, as purchaser and Accenture Services Pvt Ltd as a "Biometric Solution Provider" dated 1 September 2010 it is evident that it has not been disclosed that Accenture Services Pvt Ltd is a subsidiary of Dublin, Ireland based Accenture plc, a US company. Till 1 January 2001 it was known as Andersen Consulting.
As a consequence of French corporate conglomerate Safran’s purchase of US company L-1 Identity Solutions, the de-duplication contracts of UIDAI’s Centralized Identities Data Repository (CIDR) and Home Ministry’s National Population Register (NPR), which was given to foreign companies on 30 July 2010 to three companies now lies with two companies of French and US origin namely, Safran Group and Accenture.
L-1 has been a US company that admittedly worked with intelligence agencies of the US. Now it has been purchased by French company, Safran Group in which French government has a stake and it also has forty year partnership with China. The latter is a US company that works admittedly with security agencies of the US.
UIDAI was asked whether there has been any fresh agreement between UIDAI and Safran Group and its subsidiaries. It also wants to know as to who are all the biometric solution providers after the expiry of the “contractual obligations” with L-1 Identity Solution and Accenture.
The UIDAI had stated in its reply dated 23 December 2013 that the Appellant's data had not been shared with any entity outside the UIDAI. Here appellant refers to CJ Karira, who had filed an RTI application seeking information about the same. In a reply of 13/16, January, 2014, UIDAI stated that “the data would be shared only on a formal request by the State concerned through the Nodal Departments for the delivery of welfare and public services and schemes of the Government.” This is factually incorrect.
Nandan Nilekani, former unelected head of Aadhaar related projects and committees attempted to mislead Indian voters in general and particularly from Bangalore South constituency in a write-up dated 24 March 2014. Nilekani, a Congress candidate, wrongly claimed, “The Supreme Court has upheld the UIDAI’s view. We have always stated that the data collected from residents would remain private, and not be shared with other agencies.”
The documents accessed through RTI reply dated 25 October 2013 reveal that this is an impudent misrepresentation of facts. In the contract agreement between the President of India for UIDAI, as purchaser and L-1 Identity Solutions Operating Company, and Accenture Services Pvt Ltd accessed through RTI it is stated, "The Data shall be retained by Accenture Services Pvt Ltd not more than a period of seven years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future."
This clearly implies that all the biometric data of Indians which has been collected so far is now available to US Government and French Government because of Patriot Act and French government’s stake in the company in question.
This Congress candidate states, “In its very first strategy document and in subsequent conversations, the UIDAI had clarified that while other government agencies have the option to make the number mandatory, the UIDAI itself will not make the Aadhaar number mandatory. Over the past year, some government agencies made the Aadhaar number mandatory for specific services and benefits.”
The fact is all these government agencies made biometric Aadhaar number mandatory based on the recommendations of Committees headed by Nilekani himself. UIDAI itself was/is maintaining that Aadhaar is 'voluntary' while its chairman, the Congressman made sure that it was made mandatory to avail a number of services or benefits from the government.
The Strategy Overview document of the UIDAI says that "enrolment will not be mandated" adding, "This will not, however, preclude governments or registrars from mandating enrolment" but the stark fact is Nilekani himself headed several committees whose recommendations made Aadhaar mandatory."
In his statement dated 24 March 2014, Nilekani, the Congressman, claimed, “The argument was that making Aadhaar mandatory enables agencies to weed out fakes and duplicates in their systems, thus reducing corruption.” This was the argument of the government in which he was a cabinet minister ranked official and he was himself recommending it. Nilekani is indulging in verbal gymnastics and is trying to hide behind a veil of language.
Nilekani claims, “The power of Aadhaar as an anti-corruption tool stems from its uniqueness. A unique number linked to an individual’s biometrics means that no one else can pretend to be the person receiving benefits, and therefore cannot defraud him or her.”
The fact is that he has himself revealed in the US that biometric Aadhaar is a tool for surveillance. Not surprisingly, lower court of Goa and CBI sensed it.
Delivering a lecture at Center for Global Development at Washington on 22 April 2013 Nilekani admitted, “Now, biometrics has a big history in the world. Biometrics was first used in India in the 1870s, when the British used it for land titling, and they also used people's fingerprints to record the registration of documents. Historically, and up until a few years ago, the use of biometrics was essentially in forensics. It was about using biometrics for crime investigation and crime protection… But, after 9/11, biometrics has increasingly been used for the purpose of surveillance, or security, or for immigration control.”
Has Nilekani or Congress party ever informed fellow congressmen or compatriots that its biometric Aadhaar is going to be used for surveillance and security etc.? Is Congress Party ignorant of the fact that on 16 August 1908, in a public protest under the leadership of Mahatma Gandhi, certificates based on biometric data like fingerprints were burnt?
Nilekani claims, “It is increasingly the people most interested in diversion and continuing corruption, who will be most resistant to using Aadhaar for services.”
A list of the names of Congress MPs, MLAs and ministers who are promoters of Aadhaar to reveal in writing as to who all among them have enrolled for Aadhaar and subjected themselves to biometric profiling. It is the Congress party’s MP’s, MLAs and ministers “who are the people most interested in diversion and continuing corruption.”
The claim that “Aadhaar is the first identity for a lot of Indians across the country” is factually incorrect. Indians have 16 pre-existing identity proofs endorsed by the Election Commission of India including voter ID cards. Congress, as a party, which got 89.11% of its money from unaccounted sources and unnamed sources, will have us believe unlike the Election Commission, that all the parliamentary elections and those who were elected, were voted without Indians having any identity.
Now that these scandalous facts that have pernicious implication for the life and death of India as a sovereign nation-state, it is intriguing as to why while opposition parties like Bharatiya Janata Party (BJP) and CPI, CPM and Aam Aadmi Party (AAP) leader Medha Patkar have denounced biometric Aadhaar but refrained from promising that they will scrap Aadhaar and UID number generating NPR related programs because it is manifestly illegal. It is baffling as why instead of dealing with the issue of world’s biggest biometric database matter urgently, it has been listed for hearing on 28 April 2014 after the sixth phase of the nine phase election on 24th April is over.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
Will the NHB's directions on private placement of NCDs by HFCs be effective with the near enforcement of Companies Act, 2013?
In what seems to be a clear after thought, Housing finance industry regulator, National Housing Bank (NHB) on 19 March 2014 came up with directions for the issue of non-convertible debentures (NCDs) by housing finance companies (HFCs). With the directions of Reserve Bank of India (RBI) on issue of NCDs by private placement by non-banking finance companies (NBFCs) issued on 27 June 2013 () (June 2013 Directions) leaving a clear gap, this was an expected move by the NHB. In this write up we intend to bring out the highlights of the stated directions and also to analyze the impact that the Companies Act, 2013 will create on the effectiveness of these directions.
Why the need for separate guidelines?
The RBI’s guidelines are applicable to NBFCs as defined in Section 45 I (f) read with Section 45 I (c) of the RBI Act, 1934. Therefore, the guidelines are applicable only to the NBFCs registered with the RBI and not to HFCs, though being NBFCs they have to be registered with NHB. Hence, there was a need to come up with specific set of directions for issue of NCDs by HFCs. The gap, earlier created, has now been bridged by NHB through the directions issued on March 19 2014 (“March, 2014 Directions”).
Highlights of March 2014 Directions:
The highlights of the stated directions are:
The NCDs having tenure of less than 1 year are anyways covered by the Non-Convertible Debentures (Reserve Bank) Directions, 2010 , which regulates the issuance of NCDs having maturity of less than 1 year but more than 90 days. Those directions are applicable to all the participants of capital market; hence the HFCs coming out with private placement of NCDs of maturity of less than 1 (one) year are also covered by these directions.
Impact of the Companies Act, 2013 on the effectiveness of these directions:
The March, 2014 Directions state that HFCs are to comply with all other applicable laws at the time of issuance, so if any HFC issuing NCDs after the Act, 2013 gets enforced, will have to also comply with the provisions of the stated act as well. We detail below the effect that the provisions of Act, 2013 can have on such issuances.
Applicability of Draft Deposit Rules to HFCs
Peculiarly, where the extant Public Deposit Rules, 1975 are not applicable to HFCs, the draft Public Deposit Rules, 2013 seems to have been so ambitiously drafted that it has altogether not considered HFCs at all. To put it simply, the draft Public Deposit Rules, 2013 are applicable to HFCs also.
As per rule number 2 (ix) of the draft Public Deposit Rules, 2013, any amount accepted by the company by way of issuing bonds and debentures without adequate security covered by first charge or charge ranking pari passu to the first charge on any assets which are mentioned in the Schedule III of the Act, 2013, shall be treated as deposits. However, the rules also specify that the debentures which are compulsorily convertible in to equity shall not be treated as deposits in the hands of the issuer. Thus, issue of NCDs by private placement may be classified as a deposit unless they are adequately secured.
Creation of charge on the issue of NCDs
Though the directions remain silent with respect to the nature of charge to be created by HFCs to back the debentures, but the applicability of the Act, 2013 brings in various complexities. After going through Section 71 of the Act, 2013 and the draft rules, dealing with debentures, what we understand is that NCDs cannot be issued unless it is secured by charge created on specific movable or immovable properties. Mostly, NBFCs issue NCDs secured by receivables and for obvious reasons. We typically cannot expect NBFCs to own a tangible asset. Now since the draft rules under Act, 2013 require charge to be on specific movable and immovable property, HFCs may have to create charge only on any movable or immovable property. This particular provision, which is still in the draft stage, if gets enforced then will impact harshly not only the HFCs but also the entire non-banking financial sector as a whole.
Private Placement of NCDs under Act, 2013
The draft rules of the Companies Act, 2013 with respect to the private placement of securities provides exemption to the NBFCs registered with the RBI from the provisions of Section 42 of the Act, 2013, which deals with the private placement of securities. Though the HFCs are NBFCs, but they are registered with NHB, thus they fall within the purview of Section 42. The section lays elaborate provisions; some of them have been discussed below:
If the company accepts any money in contravention of this section then the company, its directors and the promoters shall be liable with a penalty of Rs2 crore or the amount involved in the offer or invitation, whichever is higher. The company will also have to refund the money so collected within a period of 30 days of the order imposing the penalty.
As per the draft rules, the company will also require a special resolution for making an offer or inviting people for issuing securities through private placement. It also states the requirement of an offer document. The Directions, 2014 also talks about the offer document and specifically states that the same should contain the following - address of the Registered Office of the HFC, date of opening/ closing of the issue, maturity period, rate of interest and others. It also states that one single offer document will be valid for a period of not more than 6 months. The rules of the Act, 2013 are of course still in the draft stage and the actual text of finalised rules remains to be seen which is again round the corner.
Given the little room provided by the Act, 2013 to raise funds through NCDs, March 2014 Directions will hardly create any impact on the HFCs’ fund raising through NCDs, both privately and publicly. Instead of concentrating on these directions, they should be more concerned with the bigger problem that they are likely to face in terms of fund raising once the Act, 2013 gets enforced. Needless to say this is a beacon for innovative instruments.
(Abhirup Ghosh is research analyst at Vinod Kothari & Company)