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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)
While Nandan Nilekani, former chairman of UIDAI, is busy fighting his election, he has left behind a dubious record of keeping the Aadhaar holders in the dark regarding access to their biometrics and other personal details by any private or public agency
Now, it is from the horse’s mouth. The office of the Unique Identification Authority of India (UIDAI) has admitted that information regarding biometrics and other personal details of Aadhaar, the 12-digit unique identification (UID) number, to any outside agency cannot be revealed to the holder unless it is requested by the government. In addition, once you have been allocated the UID number, there is no way to delete or cancel it, which means you cannot opt out of it. More shocking is that Aadhaar was never used to authenticate subsidies for the LPG cylinder. It was just used as an identifier for the bank.
The second appeal was heard In a Central Information Commission (CIC) Sharat Sabharwal’s office on 13 March, 2014, wherein he stated that although the RTI applicant, CJ Karira had filed a requisition under Section 7 of the RTI Act, which requires the PIO to give information within 48 hours; the requisition does not specifically come under this section. However, his order stated: “…we took this appeal up for consideration out of turn as the answers of the public authority to the queries of the Appellant in the instant case may be of interest to a large number of UID card holders, who may have similar apprehensions as the Appellant regarding sharing of the data provided by them to the UIDAI for obtaining a UID card.”
Karira, co-convener of India Against Corruption (IAC) filed a RTI application on 27 September 2013 seeking information regarding sharing of his Aadhaar data to outside agencies. He also asked for certified copies of the agencies with whom the data has been shared and procedure to delete one’s name from the UID register.
Not having received a reply from the CPIO, he filed an appeal to the First Appellate Authority (FAA) on 13 November, 2013. The FAA did not conduct any hearing or pass any order. On 23 December 2013, the CPIO gave him partial and wrong information, particularly regarding the query of whether details of his UID number was shared with any agency.
Karira stated to the FAA that the “information provided by the CPIO vide his letter dated 23 December 2013, was ‘incomplete and incorrect’, because HPCL and the State Bank of Mysore had his UID number and got the same authenticated through UIDAI, while the CPIO had stated in his reply that his data had not been shared with any entity outside the UIDAI.”
Karira again asked for “complete and correct information free of charge; imposition of penalty on the CPIO under section 20(1) of the RTI Act for the delay in provision of information; a warning to the FAA to dispose of appeals to him within the stipulated time limits under the RTI Act; departmental action against the CPIO and the FAA under the relevant rules and regulations and; a direction to the public authority to arrange training on RTI matters for its concerned officials.”
Having failed to get the required information and to request action against delay of information, Karira went in second appeal with the CIC on 15 January 2014.
The CIC order observes during the hearing on 13 March, 2014, “… it is seen that three of his queries related to the requests… for authentication/ confirmation/ matching of any of his data held by the UIDAI, the details of the persons or entities asking for such authentication etc. and certified copies of requests for such authentication and replies by the UIDAI..”
“The CPIO had stated in his reply dated 23 December 2013 that Karira’s data had not been shared with any entity outside the UIDAI. Karira has submitted that this information was misleading, because he had given his UID number to his gas agency and bank in connection with provision of subsidy on supply of cooking gas cylinders.”
“UIDAI stated that the use of the UID number, provided by the Appellant to his gas agency and bank, was for the limited purpose of ensuring that the person being provided the gas cylinders and subsidy was the same. It did not involve authentication/ matching by those agencies with the data held by them.”
The shocker is about the procedure to surrender one’s Aadhaar number. The order observes: “Two of the queries related to the procedure by which a UID number holder could surrender his UID number and card and get his data erased from the data base of the UIDAI. The CPIO informed the Appellant vide his letter dated 13th and 16 January 2014 that as on date, there was no such procedure adopted by the UIDAI to delete the UID number from the UID database.
The last query in the RTI application sought information regarding the non-UIDAI entities/ persons, who have access to his personal/ demographic/ biometric data held by UIDAI or with whom UIDAI has shared such data.
“…The CPIO stated that 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. Karira submitted during the hearing that a declaration in the application for UID number obtains the consent of the applicant for such sharing of data. The Respondents stated that such consent is not mandatory, but optional.’’
The CIC also ordered that UIDAI should have adequate number of CPIOs and FAAs to ensure that all applications are disposed off within the relevant time frame. According to CIC, “…there had been a surge in the RTI applications to the UIDAI through the online RTI portal since August-September 2013, and as many as 480 applications were received between August & November 2013…We are surprised that a public authority such as the UIDAI, with widespread public dealings, should have thought it fit to have only one CPIO until recently.”
Reacting on the CIC order, RTI activist Maj Gen SCN Jatar (retd) said, “It is shocking to note that Aadhaar is not used to authenticate LPG gas subsidies. It is only an identifier for a bank and the OMC to ‘match’ the number; there is no way to delete an UID number once allocated; there is no way to delete the biometric and other details of a citizen who wants to "opt out" of Aadhaar; there is no record maintained of who Aadhaar data is shared with and; there is no record maintained of who Aadhaar data is shared with!’’
Here is the order from the CIC…
(Vinita Deshmukh is consulting editor of Moneylife, an RTI activist and convener of the Pune Metro Jagruti Abhiyaan. She is the recipient of prestigious awards like the Statesman Award for Rural Reporting which she won twice in 1998 and 2005 and the Chameli Devi Jain award for outstanding media person for her investigation series on Dow Chemicals. She co-authored the book “To The Last Bullet - The Inspiring Story of A Braveheart - Ashok Kamte” with Vinita Kamte and is the author of “The Mighty Fall”.)
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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Read more articles from a series on Aadhaar by Gopal Krishna