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No beating about the bush.
Are HPCL, BPCL and IOC, which are harassing consumers over the LPG cylinder, 'agencies engaged in delivery of welfare services'? Their conduct in violation of the Supreme Court's order illustrates how they are delivering illegal, intrusive and unwelcome messages
With an explicit approval of ministries of finance and petroleum and natural gas, unprecedented bombardment of messages (SMS) on mobiles of consumers is going on. Oil marketing companies like the Hindustan Petroleum Corp Ltd (HPCL), Bharat Petroleum Corp Ltd (BPCL) and Indian Oil Corp (IOC) are daring the majesty of the Supreme Court, which has reiterated its ban on the making of Aadhaar mandatory for any services. It is evident that the floodgates of messages (SMS) have been opened under the influence of Nandan Nilekani, chairman, Task Force on an Aadhaar-Enabled Unified Payment Infrastructure for the direct transfer of subsidies on Kerosene, LPG and Fertilizer, Task Force on Direct Transfer of Subsidies on Kerosene, LPG and Fertilizer and Unique Identification Authority of India (UIDAI) in manifest and admitted non-compliance of the apex court’s order.
The consumers are bearing the consequences of the terms of reference of an (Interim) Task Force on Direct Transfer of Subsidies on Kerosene, LPG and Fertiliser that was constituted on 14 February 2011 by the Ministry of Finance. Its mandate was to “examine and suggest an implementable solution for direct transfer of subsidies on Kerosene, LPG and Fertilizer to intended beneficiaries with the use of Aadhaar numbers (Unique Identification numbers), Aadhaar-enabled transactions and Aadhaar authentication infrastructure of the UIDAI.” This was announced in the Budget Speech of 2011-12. Subsequently, the Terms of Reference of the Task Force were extended to include the development of an Aadhaar-Enabled Unified Payment Architecture to on 20 September 2011.
For the central government what is at stake is the recommendation of these task forces which are being implemented in contempt of Supreme Court as if the Task Force is superior to the Court. Central government had sought modification of the Court’s order by its application of 8 October 2013 but the Supreme Court did not grant them any relief and instead it categorically stated in its order of 26 November 2013 that its order of 23 September 2013 remains unmodified.
The order unequivocally directed, “no person should suffer for not getting the Aadhaar card in spite of the fact that some authority had issued a circular making it mandatory.” But these companies are making the consumers suffer. Parliamentary Standing Committee on Finance had apprehended that “The possibility that some such agencies (data collecting entities) are aligned to communal and fundamentalist groups and thus having ulterior motive in collecting non-mandatory information, cannot be ruled out.” Its apprehension stands vindicated.
Ministry of Petroleum and Natural Gas (MoP&NG) has filed the attached ‘Application for clarification/modification of order dated 23.09.2013”. The court’s order of November 26 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 thereof notice 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."
Now Nilekani is indulging in fibbing and hiding his indulgence in myriad veils. As chairman of UIDAI, he issued the unique identification (UID)/Aadhaar enrolment form making a solemn declaration that “Aadhaar Enrolment is free and voluntary.” This is a declaration of Government of India. This is a promise of Planning Commission of India headed by the prime minister. As a consequence, all the agencies, state governments, the Government of India and the “agencies engaged in delivery of welfare services” are under legal and moral obligation to ensure that it (UID/Aadhaar) cannot be made mandatory.
According to the Strategy Overview document of the UIDAI "enrolment will not be mandated" adding, "This will not, however, preclude governments or registrars from mandating enrolment." The ‘governments or registrars’ who are making it mandatory is none other than Nilekani.
The enrolment form of Aadhaar/unique identification (UID) number promises on top of the form that it is “free and voluntary”, several central ministries and uninformed state governments attempted to make it mandatory, in a manifest case of breach of citizen's trust. It is the promise of the President of India and Government of India. Is it not?
Clearly, Nilekani’s words in his official capacity are untrustworthy. This is unbecoming of a person who has a rank of a cabinet minister in the Planning Commission. The column no 8 in the Aadhaar Enrolment Form at page no 1 refers to “agencies engaged in delivery of welfare services”. Are these oil marketing companies (OMCs) which are harassing consumers, “agencies engaged in delivery of welfare services”, their conduct in violation of the court’s order illustrates how they are delivering illegal, intrusive and unwelcome messages and not welfare.
At page no 2 of the Aadhaar Enrolment Form provides, “Instructions to follow while filling up the enrolment form” which states that column no 8 is about seeking consent from an Indian “Resident (who) may specifically express willingness/ unwillingness by selecting the relevant box” by ticking “yes” or “no” options . The column no 8 at page no 1 reads: “I have no objection to the UIDAI sharing information provided by me to the UIDAI with agencies engaged in delivery of welfare services.” Now the issue is that if residents are promised that enrolment is “voluntary” they may have given their consent unaware of its ramifications but if they know now that it is made “mandatory” they are may refuse to give their consent. Has their consent been frozen?
Given the fact that the pretence of taking consent from consumers was advanced. It has clearly established two sets of biometric Aadhaar number holders, one who have given consent for their information to be shared with the agencies involved in delivery of welfare services and the other being those who enrolled for the biometric Aadhaar number but they did not give consent for their information to be shared with these agencies. The question is why are the ones in the latter category too are being submerged in the flood of unwanted messages. Among the Big Data and intelligence companies the constant refrain is data is never shared, it is bartered. Isn’t UIDAI bartering away right to free choice, a basic human right in the name of plugging the leakage of the subsidy?
The court is likely to hear the matter on 28 January 2014 and take these ‘welfare agencies’ and the concerned ministries to task.
But in violation of Supreme Court's order, Ministry of Petroleum and Natural Gas through notifications published in the Gazette of India vide GSR 718 (E) and GSR 791 (E) has made several amendments to the Liquefied Petroleum Gas (Regulation of Supply and Distribution) Order 2000 (no.10) claiming powers conferred under Section 3 of the Essential Commodities Act (ECA) 1955 has made UID/Aadhaar mandatory. The Section 3 of ECA 1955 gives powers to control production, supply, distribution, etc of essential commodities. It is inexplicable as to how this provides a legal mandate to link the UID number with its services. This implies denial of subsidy to those who do not have the impugned UID number, which is based on some biometric identification of ‘usual residents’, unmindful of the fact that the subsidy in question is meant for citizens. This is a case of manifest inconsistency, because it does not differentiate between a citizen and a non-citizen.
Despite UID/Aadhaar number being legally questionable its continuing enrolment for biometric UID/Aadhaar number based on an Enrolment Form which promises that it is ‘free and voluntary’ and indulging in a sleight of hand by stating that by enrolling you give consent for it to be made mandatory through 'welfare agencies'.
The fact is UID number is constitutionally, legally, legislatively, politically, historically, democratically and ethically wrong and the key issue is not whether it should be mandatory. It is an attempt take over property rights over personal sensitive information from citizens for good.
It constitutes colossal and unprecedented assault on privacy and democratic rights. Under the influence of advertising which is being dished out by UIDAI and the Governments, some publications and icons like Amitabh Bachchan will have us believe that there is nothing wrong with Orwellian architecture masquerading as solutions architecture and public information infrastructure. The video of Bachchan in ICICI bank ad endorsing biometric UID/Aadhaar is available here.
The claims of the Solicitor General and Ministry of Petroleum are questionable. An undated letter (circular) of the Ministry reads, "...we will restrict LPG distribution only to those who have registered Aadhaar numbers with the distributor." This is in direct contradiction to the submission made by Solicitor General in the Supreme Court. It is clear that it has nothing to do with the subsidy this is about the supply of LPG itself, with or without subsidy. Meanwhile, it has come to light that individual companies have already put in place a process for continuing LPG supplies with or without Aadhaar/UID number and with or without Direct Benefits Transfer (DBT), hence there can be no disruption or hardship caused by removing UID from the DBT process as envisaged by the Solicitor General.
In a bizarre move, three oil PSUs have moved the Supreme Court seeking modification of its earlier order, but before a different bench of Chief Justice P Sathasivam and Justice Ranjan Gogoi for an urgent hearing, according to a report of the Press Trust of India dated 6 October 2013.
In the Madhya Pradesh High Court a petition has been filed against the “illegal demand for providing Aadhaar number for Gas Cylinders on subsidized rate without any statutory force for making the Aadhaar number mandatory.” The writ petition (civil) no 18679 of 2013 has argued that “it is totally arbitrary.” One of the grounds in the petition refers to the publication of advertisements by the government saying, “by the impugned publication and demand of Aadhaar number is totally unreasonable because at present even 25% of LPG Gas cylinder holders does not get them register or the UID authorities issued the Aadhaar number or Aadhaar card hence making the Aadhaar card is totally illegal.”
Dealers in Madhya have revealed to this author that there is a compelling logic to keep the Aadhaar-linked subsidy transfer for LPG in abeyance. MoPNG and OMC has/had proposed to launch DBTL in Indore, Bhopal, Jabalpur etc on 1 October 2013 wherein it is/was envisaged that after 31 December 2013 no consumer shall be able to get the subsidy transferred to their bank account if he/she does not have Aadhaar or the Aadhaar is not linked with the bank account. Notably, those people who got their Aadhaar number linked to gas connections are being charged an undeclared hike of Rs50 per cylinder. Hindustan Times, Bhopal has reported on 9 January 2014 that IOC is arguing that it is not blame as the LPG consumers of IOC are paying extra because of the value added tax (VAT) uniformly levied by the central government. IOC has announced that once the deadline of seeding gas connections with Aadhaar is over the cylinders would be available at the market rate and only way of availing of the subsidy would be through the Aadhaar linkage to the gas consumer and bank account.
Most of the consumers have been unable to get the desired subsidy transferred in their account because of this pre-condition. The consumers have been deprived of the subsidy due to the following reasons:
The dealers are arguing that on the basis of the fact that Supreme Court order, Aadhaar cannot be made mandatory for availing the subsidy otherwise huge number of the consumers shall be deprived of their bona fide right to avail the subsidy.
Meanwhile, on 6 January 2014, LPG Distributors Federation has announced that they will go an indefinite nationwide strike from 19th January. Their demands include direct benefit transfer for LPG scheme be made compliant with the direction of the Supreme Court. The strike is also a protest against distributors being forced to take Aadhaar from the customers despite Court’s order.
Supreme Court has simply stated what the central government has promised in the Parliament. In its order what the Court has done is to simply reiterate the significance of the promise made by Government of India. As of now Chidambaram, Nilekani, Moily and the oil companies are making the court’s orders subservient to their court’s directions. This sets a dangerous precedent.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)