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No beating about the bush.
The vision statement of Aadhaar states: “use of UID to speed up certain businesses, especially in the insurance and credit sectors, may eliminate the need for private sector to set-up parallel identification systems leading to improved efficiency in delivery of their services and a reduction in identity-related frauds in the service delivery”
Supreme Court bench of Dr Justice BS Chauhan and Justice SA Bobde heard the case against 12-digit Aadhaar/ unique identification (UID) number for biometric profiling on 26 November 2013. The next date of hearing is on 10 December 2013. Raj Pal Singh, director, Planning Commission has filed the counter affidavit in the Writ Petition (Civil) No. 833 of 2013 (Aruna Roy Vs Union of India providing the backdrop of the establishment of Unique Identification Authority of India (UIDAI). It is evident from the counter affidavit that it is directed towards the Bharatiya Janata Party (BJP) and attempts to underline in the Court that there is bipartisan support for UID/ Aadhaar number project.
The counter affidavit argues that UIDAI was set up in furtherance of the recommendations of the Group of Ministers (GoM) on Reforming the National Security System were accepted by the BJP-led government besides the recommendations of the Kargil Review Committee and the amendment to the Citizenship Act, 1955 notified on 7 January 2004. GoM under the chairmanship of LK Advani also included the Defence Minister, External Affairs Minister and Finance Minister. The report was submitted to PM on 26 February 2001. The Cabinet Committee on Security (CCS) had considered the GOM report on 11 May 2001.
The counter affidavit based on inputs from Census Commissioner-cum-Registrar General of India, National Population Register (NPR), Ministry of Home Affairs (MHA) underlines that “the need for creation of a credible citizen database having a system secure form of personal identification of individuals has acquired importance due to a variety of reasons which include:
a) changing security scenario in the country, (b) realisation for better targeting of services and benefits under different schemes of government, and c) increasing identity frauds.”
It refers to the ‘provision for a secure “cyber-space” for creation of NPR, handling and transmission of data between the local service centers and national data centers” which was presented to the Committee of Secretaries (COS) in October 2006. The studied silence of the counter affidavit about how “secure cyber-space” has turned out to be a myth in the post Wikileaks and in post-Snowden era is quite stark.
Chronologically, it is revealed that “the concept of a unique identification was first discussed in 2006 when administrative approval for the project – ‘Unique ID for Below Poverty Line (BPL) families” was given on 3 March 2006 by the Department of Information Technology, Ministry of Communications and Information Technology.” A Processes Committee under Planning Commission was set up on 3 July 2006 to suggest processes for creation for the “core database”.
The counter affidavit states that COS was “apprised about the Unique Identification Number (UID) scheme of the Department of Information Technology (DIT) for creation of a residents’ database based on the electoral rolls database of Election Commission of India...”. It adds that the rest of the population (was to) be covered during Census 2011 to prepare National Population Register (NPR).
The fourth meeting of EGoM to collate two schemes- National Population Register (NPR/MNC) under the Citizenship Act, 1955 and the Unique Identification Number (UID) project of the Department of Information Technology (DIT) held on 4 November 2008 at 162, Committee Room, South Block. MNC stands for Multi-purpose National Identity Card based on NPR, which was envisaged during the tenure of BJP-led government. As per the minutes of the meeting, chairman of the EGoM, Pranab Mukherjee, the then Minister of External Affairs concluded that “It also needs to be appreciated that the whole exercise being technology based and system driven, there is immense scope far outsourcing the data collation and validation work and other tasks to expert agencies in the public or private sector through a transparent process while retaining requisite control over sovereign functions.”
In the context, he mentioned the Passport Seva Project where retaining the sovereign functions within government (MEA) rest of the infrastructure, management and software development functions have been outsourced through a transparent process to private sector. Mukherjee stated that the UID project is unique in that the organization (UIDAI) has to work in close collaboration with large number of institutions and agencies both within and outside the government and will take at least five years to stabilize. The government at that time may need to take a fresh view particularly in light of further advancements in technology. This keeps the door open for DNA based identification.
A 14-page long document titled ‘Strategic Vision: Unique Identification of Residents’ prepared by Wipro Ltd and submitted to the Processes Committee has finally emerged. Its vision statement reads: “Creating a unique identification system of all residents in the country for efficient, transparent, reliable and effective delivery of various welfare and private services to the common person.” The cover page of the document mentions National Institute for Smart Government, DIT and Wipro Consulting. The ‘Strategic Vision on the UIDAI Project’ of Wipro Ltd, the consultant for the design phase and program management phase of the pilot UIDAI project. It envisaged the close linkage that the UIDAI would have to the electoral database. On 4 December 2006, the Prime Minister constituted an E-GoM comprising of Shivraj V Patil, Minister of Home Affairs, A Raja, Minister of Communications & Information Technology under the Chairmanship of Pranab Mukherjee, the then Minister of External Affairs. Doesn’t the presence of Raja as a member of EGoM and as the minister-in-charge of DIT which is/ was responsible for UID make the entire exercise tainted and create a rationale for re-visiting DIT’s proposal advanced in 2006 before the COS?
At the first meeting of the EGoM on 7 November 2007, “the need for creating an identity related resident database and identify and establish and institutional mechanism that will “own” the database and will be responsible for its maintenance and updating on an ongoing basis post its creation was recognized.” The proposal of UIDAI was approved on 28 January 2008. Pursuant to a meeting held on 25 January 2012 under the chairmanship of the Prime Minister, “UIDAI was allowed to enroll 60 crore number by EFC which was formally approved by the Cabinet Committee on UIDAI in its meeting on 27 January 2012.” The fact remains Prime Minister is yet to reveal whether he and his family members have enrolled for biometric UID/ Aadhaar number.
Earlier, Prime Minister’s Council on UIDAI constituted on 30 July 2009 under the chairmanship of the Prime Minister held its first meeting on 12 August 2009 after Nandan Nilekani assumed charge as the chairperson in the rank and status of a cabinet minister. After that a Cabinet Committee on UIDAI was constituted on 22 October 2009. In a related development, Goolam E Vahanavati, Attorney General for India gave his written opinion on 6 August 2011 stating, “I do not consider the issuance of Aadhaar numbers to be a violation of right to privacy contained in Article 21 of the Constitution.” Wipro Ltd, Consultant of Planning Commission as part of a section titled ‘Implementation challenges’ refers to the issue of Transparency vs. right to privacy. The basic premise for the success of UID is the concept of “one owner, many users”, according to the document. But as of now the fact is that there are multiple owners of the database both inside and outside the government.
Notably, Wipro, the Consultant of Planning Commission states that “It is envisaged that, in the long term, UID would transform into being a de facto identifier for all residents of the country.” Its document states that “Importantly, statutory backing would be required for the adoption of UID by residents, Government departments, its agencies and the private sector in the long term. But as of now UID is conceptualized as de facto identifier and not a de jure identifier. This document has a section “Benefits to private/NGO Sector” wherein it states that “Private sector would be able to leverage the resident identification infrastructure and in turn, contribute to effective development activities, Use UID to speed up certain businesses, especially in the insurance and credit sectors, may eliminate the need for private sector to set-up parallel identification systems leading to improved efficiency in delivery of their services and a reduction in identity-related frauds in the service delivery.” Why this Congress led Government so obsessed with ensuring benefits for private/NGO sector using citizens’ personal sensitive information?
Ravi Shankar Prasad, member of Parliament, (MP), general secretary and chief spokesperson, BJP issued a statement on behalf of the party dated 21 January 2012 on the subject of “UID & National Security”? The question is did he carefully read the report of the Yashwant Sinha headed Parliamentary Standing Committee (PSC) on Finance that was submitted to both the Houses of Parliament in December 2011. It appears that he and his party has not done so. Had it done so it would have realized that “preparation of Unique Identification Number (UID) (Aadhaar) being prepared by the Unique Identification Authority of India (UIDAI)” itself is legally and constitutionally questionable. BJP maintains a deafening silence over the issue of illegal and illegitimate biometric data collection. This was an issue categorically raised by the Parliamentary Standing Committee and its Prime Ministerial candidate. Arun Jaitely also raised deep concerns about privacy in Aadhaar era in writing.
BJP has asked the Indian National Congress led Government as to ‘What is the “Sanctity and integrity of the data” being collected by the UIDAI?’ Will a solemn reply by the Government stating that the “sanctity and integrity” of data in general and biometric data in particular being collected is being taken care assure and satisfy the principal opposition party? Is it looking for merely an assurance? Why is it choosing to be complicit about the illegality of biometric profiling as has been pointed out by the Parliamentary Committee? Will it continue with the illegality if it wins the 2014 elections? Its silence in this regard is quite glaring.
Why is BJP mixing up the issue of “National Register of Indian Citizens” and the identification of residents of India as proposed by biometric Aadhaar/ UID? The principal opposition party appears convinced about a need for a centralized database of citizens’ sensitive personal for “National Security”.
In its affidavit on UID/ Aadhaar number based biometric identification, the Congress-led Government has trapped the main opposition party in a political trap by paraphrasing what BJP- led government had articulated and undertaken when they were in power. This affidavit is also an attempt to give a political message to the Parliamentary Committee in question that both BJP and Congress essentially have similar position on biometric profiling of Indians and BJP’s opposition is merely a token opposition to justify its role as the principal opposition party. Notably, BJP is yet to take a position that if it wins 2014 elections it will dismantle the Aadhaar project as it suffers from democracy deficit.
Meanwhile, on 26 November 2013, the Supreme Court gave an order that reads: "After hearing the matter at length, we are of the view that all the States and Union Territories have to be impleaded as respondents to give effective directions. In view of these notices to be issued to all the states and union territories through standing counsel. The advocates who have already entered appearance must file their replies within a period of three days from today. Learned standing counsel for the states who were not represented may take instructions from their respective states and file their response within one week."
The Court refused to modify its order its order of 23 September 2013 stating that Aadhaar cannot be made mandatory. Its modification was sought by the central government implying that it wanted to make it mandatory. This is contrary to the written opinion of Attorney General for India dated 6 August 2011 wherein he stated, because “…participation in the Scheme is voluntary”, it is not a violation of right to privacy.
Citizens and states must note that it is not a question of Aadhaar number being voluntary or mandatory, which seems to be the focus of the proposed resolution in the West Bengal State Assembly. It is a question of citizens being turned into subjects using illegal and illegitimate biometric Aadhaar number.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
CPI (M) said the decision of oil companies to make Aadhaar-linked bank account compulsory for LPG subsidy is unacceptable as only 25% of the country's population had so far obtained the UID
The Communist Party of India (Marxist) or CPI(M) has asked the Indian government to withdraw its decision to make unique identification (UID) number or Aadhaar compulsory for providing various benefits like cooking gas subsidy to citizens.
The Kerala state plenum of CPI (M) adopted a resolution in its meeting at Palakkad on Thursday. The resolution alleged that Aadhaar had been made compulsory by the Centre without having the backing of any parliamentary legislation and in disregard to the repeated rulings of the Supreme Court on the issue.
"The government has been pressurising the people to open bank accounts and link them to Aadhaar. Instead of allowing the people to open zero-balance accounts, many banks are insisting they should deposit Rs500 to Rs1,000 to open accounts," CPI(M) said.
Though a bill was introduced in Parliament on the matter, the report of the Parliamentary Standing Committee to which it was referred, had negated the salient provisions of the bill, the resolution said.
It said, "The decision of oil companies to make Aadhaar-linked bank account compulsory for cooking gas subsidy is unacceptable as only 25% of the country's population had so far obtained the Aadhaar. This means that the vast majority of the people are anxious whether they would continue to receive the benefits for which they are entitled."
CPI (M) alleged that it is part of the government's neo-liberal policy of phasing out subsidies and welfare payments.
"The Government's decision to set a time-frame for linking the benefits with Aadhaar has caused serious concern among the beneficiaries of various welfare schemes," the resolution added.
What happened in the Supreme Court on Tuesday as the judges heard a public interest litigation that challenged the constitutional validity of Aadhaar?
On Tuesday, the Supreme Court issued notices to state governments to explain their stance on making the unique identity (UID) number, Aadhaar compulsory.
Hearing a public interest litigation (PIL) that challenged the constitutional validity of Aadhaar number being issued by Unique Identification Authority of India (UIDAI), the apex court opined that it would not want to be in a situation where a state government would later plead that they were not given an opportunity to be heard.
Shyam Divan, the counsel for Maj Gen (retd) SG Vombatkere, cited example of several States which made Aadhaar mandatory for availing of host of services. For instance, he said in Kerala and Himachal Pradesh, admissions to school required students to have Aadhaar. Maharashtra recently made Aadhaar compulsory for government employees to draw their salary and pay slips. Madhya Pradesh followed the Centre’s diktat to make Aadhaar mandatory for receiving pension and provident fund benefits in three districts while Himachal Pradesh linked the Aadhaar scheme to offer scholarships in universities.
The bench of Justices BS Chauhan and SA Bobde was initially of the view that the petitioners are only bothered by the government making UID compulsory. So, the Bench asked Divan, “If we order that it cannot make it mandatory, would you have a case?”
Divan replied that the issues are deeper and he needs time to explain the whole scheme. The Aadhaar project, the senior advocate said, 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.
The Supreme Court then asked, “Would you have a case if Parliament passes a law giving UID legal status?” Divan replied that even if the Constitution is amended, UID would be illegal.
Divan then took the court through the flow chart of how UID enrolments are done, the kind of private companies are involved and the dangers of the scheme. He pointed out how UIDAI signed memorandum of understanding 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.
The counsel for Maj Gen (retd) Vombatkere, then briefly mentioned some abuses which could be carried out using UID.
He brought out how if a password of an ATM card was compromised, the cardholder could change the password, but if one's fingerprints or iris (biometrics) are the passwords, then the person whose password is compromised has no remedy. The court wanted to know the definition of biometrics in UID and spent some time studying it.
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. One of the judges on the bench was very interested in this line of argument and asked many probing questions.
Interestingly, neither the UIDAI nor union government have filed any counter to the PIL. They have not denied any of the allegations made in the petition by Maj Gen (retd) Vombatkere and Col (retd) Matthew Thomas.