Directing the UIDAI not to share personal info of Aadhaar holder with any agency, the Supreme Court asked the Indian government to withdraw all orders making Aadhaar mandatory for availing services
In a path breaking decision, the Supreme Court on Monday asked the Indian government to withdraw all orders making Aadhaar or the unique identification (UID) number mandatory for residents. The apex court also asked Unique Identification Authority of India (UIDAI), not to share any information, including biometrics that it has collected under the Aadhaar project through registrars, with any government agency without the permission of the person.
The Supreme Court pronounced this decision on a public interest litigation (PIL) filed by retired Karnataka High Court judge Justice KS Puttaswamy and Maj Gen (retd) SG Vombatkere, who retired as Additional Director General, Discipline and Vigilance in Army HQ, challenging the Constitutional validity of Aadhaar. In addition, the UIDAI had also challenge a decision of Goa Bench of Bombay High Court asking it to share its biometric data to solve a criminal case. Both the cases were heard before the three-judge Bench.
Shyam Divan, the counsel for Maj Gen (retd) Vombatkere, told the Court, that there is no statute to back the (Aadhaar) project and even if there were one, the statute would be violative of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution as the project enables surveillance of individuals and impinges upon right to human dignity. “The action under the impugned project of collecting personal biometric information without statutory backing is ultra vires even where an individual voluntarily agrees to part with biometric information," he said.
Adv Divan had contended that “…the (Aadhaar) project is also ultra vires because there is no statutory guidance (a) on who can collect biometric information; (b) on how the information is to be collected; (c) on how the biometric information is to be stored; (d) on how throughout the chain beginning with the acquisition of biometric data to its storage and usage, this data is to be protected; (e) on who can use the data; (f) on when the data can be used.”
According to Gopal Krishna of Citizens Forum for Civil Liberties (CFCL), the SC order paves way for a verdict against the unscientific exercise of indiscriminate biometric data collection by Planning Commission's UIDAI, Home Ministry's Registrar General of India for Aadhaar number and National Population Register (NPR) and other government and private agencies.
The Goa case
Earlier, a Magistrates Court in Goa had asked UIDAI to share with the Central Bureau of Investigation (CBI), biometric data of all residents enrolled in Aadhaar scheme from the state, to help the agency solve the gang rape of a seven year old girl in Vasco.
UIDAI challenged the Court's decision before the Bombay HC. The Goa Bench, however directed the director general of the Central Forensic Science Laboratory to examine the technological capabilities of the UIDAI database. The HC also observed that UIDAI had agreed to test the competence of its database in comparing the chance fingerprints with its biometric record.
Aggrieved by the HC decision, UIDAI had approached the Supreme Court.
According to a report from the Indian Express, even as the UIDAI describes its biometric technology as one of the best in the world, it pointed out that there was a 0.057% occurrence of false identification. "Therefore, the implications of the False Positive Identification Rate of 0.057% when applied in the UIDAI database of 60 crore residents, will imply false matches of lakh of residents," the report says quoting the petition filed by UIDAI.
The biometric number is an identifier, which is used to "authenticate" and verify whether or not the person is what the person claims to be. A stunning aspect of how the UIDAI was sought to be implemented without the nod of parliament is the high level of ignorance about who can get an Aadhaar and implications of biometric based identification. On 31 January 2013, it came to light that the members of Union Cabinet were unaware whether it is a number or a card. Instead of facing the issue upfront, a Group of Ministers (GoM) was set up to resolve it but no one knows whether it has been resolved.
"Biometric data itself has scientifically been proven to be 'inherently fallible' especially because of constant decay of biological material in human body. Global experience demonstrates that the trust in junk science of biometrics is misplaced. The stolen biometric passport of a passenger in the missing Malaysian airliner has exposed its claims for good. We demand that the opposition parties should promise that new government after the Lok Sabha elections will destroy the illegal and illegitimate database of biometric features as has been done in UK and other countries," Gopal Krishna added.
Notably, the Strategy Overview document of the UIDAI said that "enrolment will not be mandated" but added, "This will not, however, preclude governments or registrars from mandating enrolment." It must be noted that Nandan Nilekani, former chief of UIDAI and now a Congress candidate from South Bengaluru constituency, headed dozens of committees whose recommendations made Aadhaar mandatory.
Tricked by the marketing blitzkrieg, some political parties were wary of taking a position that would appear anti-poor. They did not realise that what may be the real beneficiary of this biometric identification is UIDAI, which wants to meet its target of enrolling 60 crore Indians by 2014.
Earlier, in November 2013, Adv Divan, the counsel for Maj Gen (retd) Vombatkere, in the Supreme Court stated “The Aadhaar project was ultra vires as it did not have a statutory backing. Moreover, no statutory guidance exists on crucial questions such as—who can collect biometric information, how it is to be collected and stored, protection of collected data, who can use the data and when it must be used.”
He pointed out to a two-member bench of Justices BS Chauhan and SA Bobde, how UIDAI signed memorandum of understanding (MoU) with States which had no legal sanctity. He said, “State appoints registrars, who could even be a private person, who engaged private companies to collect biometric data. There is also the fear that the private party which collects the data then stores it in a personal laptop, which does not belong to the government.”
He also told the apex court about how UID changes the relationship between the state and the citizen. “Convicted criminals relinquish some privacy rights. They have their fingerprints taken for record. Here the government is treating all people as criminals,” Adv Divan had said.
Last year in September, the Supreme Court had ruled that Aadhaar or the UID number, the United Progressive Alliance (UPA)'s ambitious scheme, is not mandatory to avail essential services from the government. While hearing a public interest litigation (PIL) filed by retired Karnataka High Court judge Justice KS Puttaswamy and advocate Parvesh Khanna questioning the legal sanctity of Aadhaar, the apex court said, "The centre and state governments must not insist on Aadhaar from citizens before providing them essential services."
A Bench of Justices BS Chauhan and SA Bobde also directed central and the state governments not to issue the Aadhaar to illegal immigrants.
In its reply, the Centre had earlier claimed that for an Aadhaar, consent of an individual was indispensable and hence it was a voluntary project, with an objective to promote inclusion and benefits of the marginalised sections of the society that has no formal identity proof.
In July, replying to an un-starred question in the Lok Sabha on 8 May 2013, Rajiv Shukla, minister of state for parliamentary affairs and planning said, "Aadhaar card is not mandatory to avail subsidized facilities being offered by the Government like LPG cylinders, admission in private aided schools, opening a savings account etc."
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The problem with the Russian economy is that it is designed to favour its crony capitalists. Similarly, the assets of the Chinese elite are derived from government connections
The West is attempting to force Russia into giving up the Crimea and invading eastern Ukrainian. Their weapons of choice are sanctions. The US and European Union (EU) have imposed sanctions on some of the leading political and business leaders close to Russian President Vladimir Putin. Russia has retaliated with its own set of sanctions. Although it is doubtful that either set of sanctions will have any real effect on Russia’s foreign policy, what is interesting to us are the effects they will have.
So far the Russians have restricted travel for several US legislators, the leader of the House and Senate as well as a few others. I doubt if they even noticed. It is possible that they have never even been to Russia. They certainly do not go there on a regular basis. Most likely all of their assets are in the US. If they do have foreign assets they are definitely not anywhere near Russia.
In contrast, the US has placed sanctions on 20 Russians and one Russian lender, Bank Rossiya. Bank Rossiya was referred to as “the personal bank for senior officials of the Russian Federation”. Putin’s stance hasn’t changed, but both the equity and the currency, the rouble, have been punished. The equity markets are off 21% this year and the Russian rouble has declined over 13%. Meanwhile, the US equity markets are flirting with new highs.
The wealthy Russian oligarchs were the worst hit. In March alone, Russia’s top 10 billionaires, led by Alisher Usmanov, had lost a combined $6.6 billion of their net worth. This is perhaps fitting. The problem with the Russian economy is that it is designed to favour these crony capitalists. But apparently Russia isn’t even safe enough for them.
Crony capitalism allows certain individuals to profit from special connections to the state. Often their gains are allowed by contravening weak laws. The paradox is that at some point these people need laws to protect their property regardless of its origin. So they leave and invest elsewhere. The money leaving Russia is estimated to be $65 billion last year alone.
One favourite destination is London. One important guage of crony capitalism is the price of London real estate and the origin of the buyers. Property prices in London rose 12% last year. Much of this was from Russia and the rest of the former Soviet Union. When surveyed by London real estate agents about change of domicile, 37% of this group said they were considering a move. The global average is around 15%.
Russians and Ukrainians are hardly the largest nationality vying for London property. This distinction belongs to the Chinese, although usually the money comes through Hong Kong or Singapore. They prefer new buildings where up to 90% of the buyers are from “Hong Kong”.
The number of Chinese, who want to leave, is also similar to their Russian counterparts. As of 2013, Chinese emigrants to overseas had reached 9.34 million, an increase of 128.6 % in 23 years. Those that stay in China, still want to invest outside of one of the fastest growing economies in the world. One third of wealthy Chinese have overseas assets and 30% of those who don’t intend to in the next three years.
Of course like the Russians, the assets of the Chinese elite are derived from government connections. These wealthy individuals exploit these connections to become what is known in economics as rent seekers. They get exclusive access to public goods like licenses, building contracts, and low interest loans. This type of crony capitalism is a disaster for the economy because it results in misallocation of capital and poor infrastructure.
The Economist recently even came up with a chart. The problem with their chart and many others is that they used the wrong metrics. They arbitrarily used billionaires and limited their financial interests to certain sectors. This led to a ranking that put China below Britain and just above France.
Perhaps, a better way to rank crony capitalist countries would be to compare countries the rich want to leave with places where they want to live and invest once they attain their illicit booty. The mistake that The Economist makes is to limit the sectors. The real problem is not the sectors or necessarily the institutions although these are certainly part of the problem. The real problem is government itself.
All government policies distort markets whether they intend to or not. The distortions lead to misallocations and inefficiencies that slow growth. In the US, the massive program of quantitative easing was intended to help the unemployed. Instead it just made the rich richer.
This is not to say that all of these policies should be eliminated. Simply that they should be limited. Limiting the scope policies to the least number of areas is the best way to eliminate the advantages of the elite and avoid unintended consequences. Regulations necessary to protect the general public should be designed to be self-executing when ever possible. In other words, harness the power of self interest to help make a decent place to live rather than allowing government enabled greed to create a place people want to leave.
(William Gamble is president of Emerging Market Strategies. An international lawyer and economist, he developed his theories beginning with his first-hand experience and business dealings in the Russia starting in 1993. Mr Gamble holds two graduate law degrees. He was educated at Institute D'Etudes Politique, Trinity College, University of Miami School of Law, and University of Virginia Darden Graduate School of Business Administration. He was a member of the bar in three states, over four different federal courts and has spoken four languages.)