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No beating about the bush.
What is being proposed by the likes of Pitrodas and Nilekanis through so-called transformational government project is to subjugate nation states and turn their citizens into subjects through social control technology companies
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
-- The Fourth Amendment, Bill of Rights, United States Constitution adopted on March 1, 1792
Miraculous results can be achieved by practicing the methods of subversion. A king shall have his agents in the courts of the enemy, the ally, the Middle and the Neutral kings to spy on the kings as well as their eighteen types of high officials. A single assassin can achieve, with weapons, fire or poison, more than a fully mobilized army.
-Kautilya in Arthashastra, 150 A.D.
“There’s safety in the blindingly obvious”
--David Headley (formerly Daood Saleem Gilani), an intelligence agent
It is ‘blindingly obvious’ that biometric identification is meant for indiscriminate warrantless and automatic surveillance of citizens. It signals the arrival of the "colonial epidemic of general searches" undertaken on behalf of the monarch with unlimited power on the life and property of subjects.
How will judges hear cases in the judicial system of an Orwellian state? How will they judicially/ biometrically identify the double agents?
Will they allow themselves and their fellow citizens to be subjected to an “ever-watchful electronic sentinel in order to collect future evidence”?
Will Indian Supreme Court allow the Government and non-state actors to wield the power of surveillance over sovereign citizens as portrayed in George Orwell’s novel 1984 and Steven Spielberg’s “Minority Report”? Orwell was born in India.
In the US Vs Antoine Jones case, the US Supreme Court gave its unanimous verdict on 23 January 2012 and held that by installing the Global Positioning System (GPS), an electronic device on Antoine Jones, the defendant’s jeep without a valid warrant, the police had committed a trespass and the trespass constituted an unreasonable search under the Fourth Amendment. Michael R Dreeben, Deputy Solicitor General, Government of US had argued that information revealed to the world is not protected by the Fourth Amendment which protected "reasonable expectation of privacy" of citizens.
In 2005 Jones was suspected of drug trafficking but he was arrested when their warrant to attach a GPS tracking device to the underside of the defendant's jeep had expired and had crossed the geographical boundary for which it was valid. Walter E Dellinger III, the former US Solicitor General and the attorney who represented Jones said the verdict was "a signal event in Fourth Amendment history." This judgement came long after the 10 member 9/11 commission of inquiry in the US had submitted its report. The verdict is attached .
During his first presidential election campaign Barack Obama promised to act against the REAL ID Act passed illegitimately for identifying citizens biometrically during the regime of George W Bush. Obama administration acted on his promise along with the States of US.
With its efforts to create Unique Identification Authority of India (UIDAI)’s Central Identities Data Repository (CIDR), National Population Register (NPR) and National Intelligence Grid (NATGRID) in the aftermath of 26 November 2008 wherein 166 people were killed and more than 300 injured in the world’s fourth largest city, Mumbai, Government of India seems to be undertaking tasks which have been abandoned in US. The book ‘The Siege: The Attack on the Taj” authored by Adrian Levvy & Cathy Scott-Clark published in 2013 by Penguin Books reveals that “The handler Abu Qahafa, ‘the Bull’, has never been identified. Nor has Major Iqbal, David Headley’s ISI contact, who recruited ‘the Mice’, his information gatherers in Mumbai, who boasted of an Indian double agent called ‘Honey Bee’. None of these sources have been found or identified.” Abu Qahafa who handled the military components of Operation Bombay is a Punjabi from Bahawalpur is the second in command in Lashkar-e-Toiba which was formed in 1990 by Hafiz Saeed. The book will have us believe that the US Central Intelligence Agency (CIA) was providing consistent intelligence inputs based on its ‘significant source’ implanted in Lashkar to Indian intelligence agencies. It is admitted that Lashkar knew David Headley (formerly Daood Saleem Gilani) who befriended to be operating for western intelligence agencies.
One wonders whether the chiefs of Ministry of Home Affairs (MHA)’s biometric NPR and NATGRID and Planning Commission’s CIDR of biometric UID/Aadhaar numbers identify these unidentified individuals like ‘Honey Bee’ before proceeding with their task of biometrically identifying Indians. Before proceeding with these initiatives it, it must fix accountability for failure to act on available intelligence inputs about the attack on Mumbai.
What are the lessons from bomb explosions in Mumbai in April 1993 in which Sanjay Dutt was allegedly involved among others, conflict in Kargil, attack on Parliament and attack on Mumbai trains in July 2006 and on 5-star hotels and railway station in November 2008? Did it really create a rationale for indiscriminately biometrically profiling all the Indians?
Press Trust of India reported on 13 December 2013 that Chief of Army, General Bikram Singh accepted the Legion of Merit, the sixth highest military honour of the US, when he visited that country from 2nd to 5 December 2013 without the clearance from the Ministry of Defence. General Singh was also inducted into the US Army War College (USAWC) International Fellows Hall of Fame, and toured various military facilities of USA such as Fort Bragg in North Carolina and Fort Benning in Georgia. The Ministry learnt about it from media. General Singh gave a keynote speech to the USAWC graduating class of 2013-2014. He is an alumnus of the USAWC, located in Carlisle, Pennsylvania, having completed a course there in 2004. During his visit to the US earlier this month, Xinhua news agency reported that the Ministry has sought an explanation from General Singh but Sitanshu Kar, the spokesman for the Defense Ministry has refused to comment on the matter.
Earlier, Admiral Nirmal Kumar Verma who as the Chief of the Naval Staff of Indian Navy, from 31 August 2009 to 31 August 2012 and as Chairman, Chiefs of Staff Committee got himself biometrically profiled on 18 August 2011. Did he take the permission of Ministry of Defence before subjecting himself to the ignominy of being biometrically profiled? It has also been reported the office Minister of Defence was implanted surveillance equipments. These incidents happened during the tenure of AK Antony as the Defence Minister.
In November 2012, Admiral Verma was appointed as the High Commissioner to Canada. Can Government of India on affidavit inform the Supreme Court that Admiral Verma’s biometric profile is not available with Canada’s Communications Security Establishment Canada (CSEC), which is part of the intelligence sharing alliance comprising of US, UK, Australia, Canada, New Zealand and France? In an unrelated development, Nandan Nilekani was awarded an honorary Doctor of Laws degree by the Rotman School of Management at the University of Toronto, Canada on 31 May 2011.
Most recently, the Economic Times has published a news based on the report from Press Trust of India dated 28 December 2013 that Captain P Raghu Raman, the CEO of NATGRID has announced that "In many ways it (NATGRID) has started. There are certain elements being helped out where it is required," when he was asked if the NATGRID has begun its operations. NATGRID is born out of the lessons from 26/11 attack in Mumbai. NATGRID attempts to replicate Federal Bureau of Investigation (FBI) of US and will require similar budgetary allocations. It is to act on the basis of 21 data sources of various intelligence and enforcement agencies for 10 user agencies. National Counter Terrorism Centre (NCTC) was supposed to gather information through the NATGRID.
Prior to this Captain Raghu Raman was the CEO of a multinational security company, Mahindra Special Security Services Group, a subsidiary of the Mahindra Group. He has been Chairman, Internal Security Committee, Bombay Chamber of Commerce & Industry (BCCI) and head of Subgroup on Industry Guidelines and Member, National Task Force on Internal Security, the Confederation of Indian Industry (CII). Raman had left Indian Army on a job offer from Anand Mahindra, the industrialist and took over as the CEO of the joint venture between Mahindra and British Aerospace, Mahindra Defence Land System in 2009. During the Mumbai attack of November 2008, Raman reportedly spoke constantly on the phone for nearly two days with some people trapped inside sharing "dos and don'ts" despite the fact that he had lost two friends in the terror strike.
It has been noted that 22 minutes after the first shots were fired in Leopold Café, Mumbai on 26 November 2008, Black Cats were ready but it took the Cabinet Secretary, the top most civil servant in the country, 70 minutes (one hour and 10 minutes) to contact Jyoti Dutt, the then Chief of National Security Guards (NSG) under whom Black Cats operated. Madhukar Gupta, the then Secretary, MHA was stranded in Pakistan, on government business, and could not get a flight until the morning and when he did arrive he asked Dutt who was to leave for the airstrip, to pick him up from his residence which entailed significant deviation from Dutt’s route. This is noteworthy that the authors’ name some officials and in some specific cases they just mention their designations like the Joint Secretary Police (Internal Security) who withheld the green light for the combat operations in the crucial moment. One of the sons of Syed Saleem Gilani, a radio broadcaster from Voice of America and Serrill Headley from Maryland, David Headley (formerly Daood Saleem Gilani) is a US citizen of Pakistani descent. David Headley (formerly Daood Saleem Gilani) is from a mohajir family, who migrated to Pakistan from Kapurthala, Punjab after partition. His half-brother Danyal was the public relations officer of the Pakistan’s Prime Minister. When his father died Pakistan’s Prime Minister (name?) visited his family to offer condolences. There is ‘overwhelming evidence’ that David Headley (formerly Daood Saleem Gilani) who ran ‘Reliance cyber café’ near Churchgate railway station was an intelligence agent.
Is it irrelevant to recollect as to why Adil Sharyar, son of Muhammad Yunus, a migrant from North West Frontier Province, Pakistan who was convicted in US was pardoned by the President of US? Yunus was a confidant of Indira Gandhi and was one of the names mentioned as candidates for the Presidential elections in which R Venkatraman was elected as the President. Venkatraman mentions his name in his book ‘My Presidential Years’. Sharyar was imprisoned and he was serving a 35-year sentence for setting off a firebomb, fraud and other violations in Florida. He was pardoned by Ronald Reagan on 11 June 1985, the day Rajiv Gandhi arrived in Washington for a visit with the President. What was the quid pro quo involved to secure the pardon for Sharyar from the US President? Rajiv Gandhi had told India Abroad, news agency that he had not asked for the release of his friend.
In the Parliament, Prof Madhu Dandvate had asked the Union Minister of External Affairs (MEA) whether the attention of Government has been drawn to the news report in Times of India (Delhi Edition) of 4 March 1986 under the caption ‘Ex-CIA agents’ firm made ‘Rajiv’s India’ and whether it is correct that the company which made the film is owned by a former CIA boss Max Hugel and does not such a close liaison between the former CIA boss and the firm production activities harm the national interests and security requirements. KR Narayanan, the then Minister of State in MEA had replied, “The Television Documentary “Rajiv’s India” was a joint production of Jack Anderson File/International Syndications Inc. It is a fact that Max Hugel, the President of International Syndications INC (ISI) held an official position in the CIA from 21 January 1981 to 14 July 1981” in a written reply. With regard to question as to its harm to national interests and security requirements, the minister added that it does not harm because “Normal procedures of checking with appropriate authorities for protection of national interests and security requirements are invariably observed before Government grant permission to the producers to visit India to make films. Every security precaution was observed when the television team visited India.”
Jack Anderson, the co-producer of the documentary was an investigative journalist who had exposed the infamous Nixon-Kissinger ‘tilt’ towards Pakistan during the war for the liberation of Bangladesh. Doordarshan had announced that the documentary will be broadcast nationwide but at the scheduled time it was not shown "due to certain technical problems.” The ‘technical problems’ never got solved. As per official records is it known as to for how many hours did Rajiv Gandhi and Sonia Gandhi spend with Max Hugel in getting themselves recorded? Will this documentary be ever shown in India? The books of intelligence agencies underline that in the business of intelligence gathering, once an individual is recruited, he remains recruited forever. Is it untrue?
It was in this a context that Dr Satyanarayan Gangaram Pitroda (Sam Pitroda), a US citizen, came on an invitation from Indira Gandhi, the then Prime Minister. Pitroda became an advisor to Rajiv Gandhi, the then Prime Minister and is at present the advisor to the current Prime Minister on public information infrastructure and innovations (PIII) in the rank of a cabinet minister without oath of office and secrecy. He claims to be working for 'Democratisation of information', which sounds like there is safety in stating blindingly the opposite of what one intends to do.
PIII intends to connect each of the country’s 250,000 panchayats to fast, broadband connections. As per its plan, a giant, nationwide, broadband network that will not only integrate all Indians with their governments but government departments with one another, all educational and scientific institutions, every related government programme and develop new applications for these programmes as the network takes shape is unfolding. Aadhaar is a subset of this universal plan. These programmes will be controlled by applications to be developed by the National Informatics Centre (NIC) which created during 1975-1977. The overall plan is that UID will tag every person, GIS will tag every place, and the applications will tag every programme. Once the basic PIII is in place, it is envisaged that “Once we do the basic platforms, “Some kid will figure out the applications.” Which kid will figure out the applications? What if these applications end up undertaking surveillance of nine hundred million telephones which are currently being used in the country?
It is noteworthy that Pitroda and Hubert Vedrine, former foreign minister of France, have founded the People for Global Transformation (PGT), which held its first meeting in the last week of September 2012 with the Reliance Foundation in Mumbai. At one point, Vedrine was the Diplomatic adviser of French President, François Mitterrand during 1981-1995. Coincidentally, French Government has a stake in the Safran Group which is involved in biometric Aadhaar. In an interview to Business Standard, Pitroda said, we “come together to think about what kind of world we need to create. For over a decade, I have been telling friends that during the World War II, small groups of people got together and decided certain institutes needed to be set up and they were formed with an idea to dominate the world. So, we have the UN, World Bank, NATO and others. All these institutions do not make any sense now; they are obsolete.” They are using 10 people who from a policy-making background, from emerging and mature economies for this work.
Pitroda says, “Nation-states might not have the same meaning anymore as 70 years ago, especially in the connected world.” Global Transformation is the aim of the World Bank’s e-Transform Initiative launched in Washington in April 2010 which is unfolding in partnership with five transnational companies and national governments of France and South Korea. Meanwhile, Nandan Nilekani, the official of Planning Commission has won an award coincidentally named NDTV’s Transformational Idea Award 2011. He is also a winner of ET Award winner for Policy Agent of the Year in 2011 and a member of the ET Awards Jury in 2013. In an unrelated development, The Economic Times and The Times of India have been publishing UIDAI’s advertisements at regular intervals.
It is indeed true that a small group of people set up institutions like UN, World Bank and NATO to dominate the world. They are indeed obsolete but what is being proposed through so-called transformational government project is to subjugate nation states and turn their citizens into subjects through social control technology companies. There is democracy deficit in the these institutions but what is being bulldozed under the dictates of these very institutions only enables their firmer grip over the fate of present and future citizens.
At a convocation address on 2 December 2013, Pitroda said, “We are creating two major networks – one called knowledge network to connect all our Universities and R&D institutions, libraries and others, with 40 GB bandwidth to transfer large amounts of information so that our scientists can collaborate better, share resources and expedite research and development. The second network is to connect 250,000 local panchayats through optical fiber. When that happens, all our villages would have huge amount of broadband capacity. These two networks will cost us about Rs50,000 crore. The first one is already built the second one will be built in next eighteen months. In addition, we are creating platforms for ID (Aadhaar) that Nandan Nilekani is working on; GIS (Geographic Information Systems) – Dr Kasturirangan, Dr Ramaswamy, Dr Nayak are working on; Dr Gairola in NeGP (National e-Governance Plan) where information on food distribution, driver’s license, passport, income tax – all would be organised. We are computerizing 32 million court cases because it takes fifteen years to get justice today. We need to organise and computerize the police, CBI and prisons.” He revealed that his public information infrastructure will be ready in 2-3 years at the cost of about Rs1 lakh crore.
No one seems to have asked Pitroda who is a political appointee in the rank of a cabinet minister in the Indian National Congress-led Government as to what will be the fate of PIII related sets like UID/Aadhaar, NPR and NATGRID after the 2014 elections.
Notably, it is not only the US Supreme Court that has come in defence of democratic rights, even the European Court of Human Rights (ECHR) and the Supreme Court of Philippines has ruled against indiscriminate biometric profiling by the Government or any entity. Now Supreme Court of India has to decide whether or the letter and spirit of Fourth Amendment of US Constitution is present in Indian Constitution or not and whether the unanimous verdict of ECHR against indiscriminate profiling is relevant in India as well. Besides biometric Aadhaar, NPR, the court must consider examining the interconnectedness and legality of NIC, NATGRID and PIII as well.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
The Aadhaar project with its enormous potential of surveillance alters the relationship between citizen and state. It tilts the balance so steeply in favour of government that a citizen whose biometrics are controlled by the State is permanently condemned to submission
Before we get to the seductions of technology, let me talk about the seductions of literature specifically, children’s literature. Belonging to an ancient epoch for many in this audience (the pre-Amar Chitra Katha age) is a book series featuring Curious George, a supremely cute monkey who travels by ocean liner from his home in Africa to the East Coast of the United States to reside with his friend, the Man with the Yellow Hat. Some of you I hope have succumbed to the charms of Curious George, but for those who haven’t, one striking feature of his adventures is our hero’s interactions with technology – a space ship adventure in 1957, and more modestly--kites, bicycles, a water pump, hospital equipment – all tested and deployed in a rather unique simian way.
The author - illustrators, Hans and Margret Rey gently guide Curious George, the mischievous monkey, to a new-for-him contraption and what follows is a hilarious adventure. Now, what might Curious George conjure up with Aadhaar?
The harnessing of new resources and the employment of new technologies inevitably disrupts the prevailing legal regime. When railroads were first laid across farm lands, sparks from the friction of locomotive wheel and rail triggered fires that destroyed farms. Judges and legislatures were required to balance the economic gains from the new technology against the loss suffered by individuals. As you recall, in that case, technology prevailed and the liability of carriers was limited by law. But as we also know from our experience with the chemical industry, the law can and does muzzle technology.
We stand at important crossroads with respect to privacy. By ‘we’ I mean all of us collectively as a species, as a civilisation. There is little doubt that in order to harness the benefits of technology in the fields of health, public order, economic efficiency and a myriad other spheres, we will continue to voluntarily cede much of our autonomy and privacy for a notion of a better or more secure life. The real issue at this crossroads is whether in our anxiety to advance, we will surrender all of whatever little is left of the privacy we enjoy. A decade or two from now give or take a bit, will privacy be viewed as a quaint hangover of the 20th century or will it remain a core value to be fiercely protected? Much of what we do today, and now, in terms of reining in government and private enterprise, will decide the legitimate contours of invasive technologies and pervasive government. Tomorrow is too late.
The Aadhaar Case
The Supreme Court is currently hearing a set of public interest writ petitions challenging the Aadhaar project. The case is slated for final disposal and I must disclose my bias in that I appear for a set of petitioners. There is an interim direction by the Court that no person should suffer from not having an Aadhaar card and that it should not be given to illegal immigrants. There is little to suggest that after the interim direction on 23 September 2013, the Union government or the Unique Identification Authority of India (UIDAI) have taken any proactive steps to implement the interim directions in letter or spirit. It is business as usual.
What is Aadhaar?
The UIDAI is an administrative body created by a notification issued by the Planning Commission on 28 January 2009. UIDAI currently operates without any statutory backing, though the Government has a Bill ready to provide a statutory framework. Now that Parliament has adjourned on 18 December 2013 two days ahead of schedule, the law must wait until the next session unless an ordinance is promulgated.
Aadhaar is the UIDAI brand and logo. The Aadhaar Number is a random, unique 12 digit number issued to each person who successfully enrols. The project cost is in excess of Rs1.50 lakh crore and though there is no specific legislative or indeed even administrative notification that permits UIDAI to use ‘biometric information’, this is the foundation of the project.
Biometrics is distinctive measurable characteristics of a person that may be used to label and mark individuals. DNA and palm prints are an example.
The biometric information being collected by UIDAI comprises: (1) facial photographs of the individual; (2) All 10 fingerprints and (3) a scan of both iris. UIDAI seeks to create a vast data bank containing this personal information.
Biometric information of an individual is part of his or her body. Quoting Lord Goff, the Supreme Court recently recognised that every human being of adult years and sound mind has a right to determine what shall be done with his or her own body. This right to bodily integrity is so fundamental that we frequently take it for granted in the rush and tumble of big city living.
Procedure Adopted By UIDAI
The procedure adopted by UIDAI is so casual that it borders on irresponsible. Briefly, the entire process at the field level is in the hands of private enterprises known as enrollers who operate freely without any government supervision. The threshold qualifications for an enrolment agency are so low that not one of them is a recognisable name. They comprise an assortment of, trusts, societies, proprietary concerns, partnerships and what have you. The biometric information of each enrolee – that set of valuable parameters that we ought to most fiercely guard – is spirited out by filling out a form. The biometrics are initially stored and collected in private hands before it is transmitted to the UIDAI Central ID Repository (CIDR) via memory stick or courier or by direct uploading. The UIDAI has no privity with the enrolling agencies. The loose framework of relationships linking UIDAI to the collection of biometric data is through MOUs with state governments or departments known as registrars. It is these registrars who engage private sector enrolment agencies.
Upon receiving the biometric information the process of de-duplication is undertaken to ensure that the same individual is not issued two UID numbers. The de-duplication exercise is carried out by: (i) Accenture; (ii) Mahindra Satyam & Morpho joint venture; and (iii) L1-identity Solutions. Your biometrics are handled by entities of alien origin with no particular affection for Indian Constitutional values.
The Aadhaar verification system works through the internet. The service provider – say a bank or LPG cylinder supplier reads your finger print on a small device. The biometric identification is confirmed against the data stored by the UIDAI in its central depository and a confirmation is issued in real time that this person, indeed, is he or she whom she claims to be. UIDAI expects that a forest of applications will rapidly develop which employ Aadhaar as the gatekeeper. There are scores of gates visible and invisible, that we walk through every day. A fingerprint confirmation to unlock the gate may include unlocking a mobile device; opening the front door to a flat, opening the front gate to the building, unlocking a car door, starting a motor car, withdrawing money from an ATM, paying a cab driver by an Aadhaar enabled debit to a bank account, entering an airport, boarding an aircraft, recognising a face at an airport, entering the University campus or a hostel -- to name just a few gate ways that I passed through this morning. This, again, is no longer the realm of science fiction but is so ‘yesterday’ for technology geeks. It is a matter of time before biometric verification invades every moment of our existence. Unless... We stop this invasion now.
The Itinerant Indian
To illustrate the impact of Aadhaar let me take a hypothetical individual-- manic in her travel habits and who, unlike the poor sod on the Clapham omnibus, is able to compress some of the more significant milestones in life into a relatively short frame.
Recently wedded, she presents herself to register her marriage at the Registration office at New Delhi. She is turned away since she doesn’t have an Aadhaar number, which the Delhi government has by an order made mandatory. Being a conscientious objector, rather than gift her biometrics to the Union government, she travels to Jharkhand to register her marriage. To her horror, she discovers that the state of Jharkhand too has made the Aadhaar number mandatory for the registration of marriages.
Returning to Delhi, she seeks to register a lease for her residential premises but discovers an unyielding sub-registrar who will not register her lease without Aadhaar.
She then applies for an LPG connection and a ration card on behalf of her parent, who resides in this magnificent city, Bangalore. The state of Karnakata will not grant an LPG connection or a ration card unless her parent parts with the biometrics and secures an Aadhaar number.
Moving to Kerala, she finds that she cannot secure admission for her children to a school or a college without them being finger printed and an Aadhaar number issued. Schools and colleges in Himachal Pradesh too insist on Aadhaar numbers before granting admission. Scholarships and fellowship are beyond the reach of her children because they must have an Aadhaar number according to the University Grants Commission (UGC).
Were our protagonist to teach in Maharashtra, she would have to have an Aadhaar number to draw salary and were she elevated as a Judge of the High Court at Bombay, she would discover on her desk a circular issued by the Prothonotary and Senior Master (quite possibly the grandest designation ever conceived for the job of Registrar). The Prothonotary directs that Judges will not receive salaries unless they have an Aadhaar number.
None of this is a gloomy imagination of tomorrow. It is the present. As we debate surveillance, the reality is that in several parts of the country you cannot get your child admitted in school or college, get your marriage registered, buy or lease a property, secure a scholarship, receive your salary, obtain subsidies for LPG or a scholarship unless you first gift your biometrics to the UIDAI.
For all intents and purposes, the creeping civil disabilities that visit an individual who does not surrender her biometrics are already so nasty that we live in what by some measures may qualify as a police state. We are certainly at the cusp of morphing into a police state (with thank God – only half decent policing.)
Extrapolating ever so slightly, the Union government is creating one huge data bank of every individual’s fingerprints, facial image and iris scan. As we speak, UIDAI is fingerprinting our future prime ministers, chief justices, leaders, decision-makers and far more sinister, each and every citizen and indeed resident of India.
Aadhaar is garrotting civil rights and civil liberties.
Heads of Challenge
To give you a flavour of the contest in the Supreme Court, here are some of the grounds on which the Aadhaar project is assailed:
(i) The UID project is destructive of limited government which is built into the Constitutional scheme and is part of the Basic Structure of the Constitution of India. Limited government is transgressed by breaching bounds of personal autonomy guaranteed to every person under the Constitution. There is no statute to back the impugned project but even if there were one, the statute would be ultra vires the Constitution.
(ii) The Constitution balances the functioning of the state against individual freedoms and rights. Whenever the state seeks to impinge upon fundamental rights, its actions must be backed by statute and not mere executive fiat. Here, 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.
(iii) The 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.
(iv) The project is also ultra vires because under the constitutional scheme any action by the State that could potentially impinge on an individual's freedom must be backed by statute.
(v) The procedure adopted by the Respondents is arbitrary and violative of Article 21 because:
(a) There is no informed consent;
(b) Individuals are not told about crucial aspects such as potential misuse of the information, the absence of any statutory protection, the commercial value of the information;
(c) Private parties collect biometric information without safeguards;
(d) The enrolment is based on a flawed introducer system and verifier system; and
(e) There is no government security of stored data;
(vi) The project as implemented coerces individuals to part with biometrics.
(vii) The project violates the right to privacy.
(viii) The project is arbitrary and illegal inasmuch as it allows private dominion over biometrics without governmental control thereby compromising personal security and national security.
(ix) Assuming the Constitution permits the state to collect and store biometric data of all residents, the Constitutional scheme requires that dominion over biometrics of Indian citizens and residents is a core, non delegable function of the state that cannot be privatised.
(x) The impugned project enables surveillance of individuals, and thereby violates Articles 14 and 21.
(xi) The impugned project as implemented violates the right to human dignity which is a facet of Article 21.
(xii) The impugned project compromises citizenship.
(xiii) The failure to provide an 'opt out' option violates individual autonomy and dignity guaranteed under Article 21.
(xiv) The foundation of the project i.e. biometrics is an unreliable and untested technology. Moreover, biometric exceptions severely erode reliability.
(xv) Public funds are being channelled to private enterprises without sufficient validation and study that biometric verification works.
There are plenty of governmental justifications. First, government claims that each of us has a right to an identity and this is all that the Aadhaar project does. Second, Aadhaar when linked to credits into a bank account will prevent the huge leakages that undermine social welfare spending. Third, UIDAI expects a range of applications and technologies to evolve about the Aadhaar platform that will dramatically improve our daily lives and be supremely convenient to both businesses and consumers. Aadhaar is ‘Post its’ + cell phones on steroids. A world without the joys and benefits of Aadhaar will be unimaginable just a few years from now.
Identification of Prisoner’s Act
Your biometrics is yours and yours alone. The government can have no claim over them, any more than it can claim your body. Of course, there are narrow exceptions.
Illustratively, the Identification of Prisoner’s Act, 1920 recognises the right of a person to protect his or her finger impressions. This short Act comprising 8 sections requires persons convicted of offences punishable with rigorous imprisonment for a term of one year or more to allow his measurements and photograph to be taken by a police officer. A measurement may also be taken when a person is arrested in connection with such an offence. A magistrate may order a person to give finger impressions or a photograph for the purposes of investigations.
Resistance is deemed to be an offence under Section 186 of the IPC (Obstructing a public servant in the discharge of his duty). Where a person is not a repeat offender, his photographs (negatives and copies) and all measurements are required to be destroyed when he is released without trial or discharged or acquitted.
This pre-constitutional regime, which gave limited rights to the state, is now being turned on its head with wholesale trawling of fingerprints through an administrative scheme with no statutory protection to individuals.
The Aadhaar project, in the absence of any statutory framework or privacy statute is a monstrous invasion of individual rights. It destroys the foundational principle of limited government which is a fundamental attribute of our written constitution. The constitution not only draws lines amongst different organs of the state but it also draws a line between what a state can legitimately do and what is beyond its sphere. Creating a vast data bank of biometrics that potentially can be used against an individual is an enormous and systemic invasion of privacy that appears to fall outside the legitimate sphere of limited government.
In an Aadhaar enabled world, the continuous verification at by the CIDR translates into real time tracking. By coercing individuals into parting with their biometrics at pain of withdrawing essential civil rights, willy-nilly, we usher in a police state. The Aadhaar project, in my view, destroys the social contract that underlies the Indian Constitution. If there is a moral theory on which our Constitution rests, it is the theory that there are limits to state power and there are certain boundaries that the state cannot transgress, no matter how great the perceived benefit. Indian citizens have moral rights against the state and against each other. The right to be left alone, the right to be silent, the right to be anonymous are aspects of individual liberty that are slip siding away due to technologies that most of us can barely comprehend.
The right to privacy, in my view, is a right that must be taken seriously and while a post Aadhaar world is not necessarily Dystopia, it is certainly a land where reclaiming a personal space where one can be completely alone, will be well nigh impossible.
Aadhaar is wrong because it compromises the bodily integrity of each of us by snatching away an intimate aspect of our physical identity. It is wrong because it is no part of the business of the Government of India to create a vast data bank of biometrics that can be used and abused against Indians. The Aadhaar project with its enormous potential of surveillance alters the relationship between citizen and state. It tilts the balance so steeply in favour of government that a citizen whose biometrics is controlled by the state is permanently condemned to submission. Her tastes, her habits, her routines, her provocations are all known or can be known by the State. A central bank of biometric data robs individuals of dignity assured by the Preamble to the Constitution. It also gives an inordinate amount of power to those in government controlling the levers of power against every outsider. The Constitution of India has a morality (which occasionally our Justices fail to discern) but which I believe prohibits an Orwellian state.
Returning to Curious George -- what would Curious George do with Aadhaar? Given his mischievous streak, he would probably plant your finger prints at places you have never visited. And so, Rahul Gandhi may be shown to have visited an RSS shakha and another presumptive Prime Minister may have a trail of fingerprints proving daily visits to the neighbourhood mosque. Would Curious George have a blast? Not so. The real tragedy is that all of Curious George’s diversions and antics were played out at a time when he was magnificently alone and unsupervised. Unnoticed by the Man is the Yellow Hat, or the Zoo keeper, or the Museum attendant. Free to play his pranks. The space and the freedom to do mischief, to provoke, to instigate, or indeed to be idle will no longer remain. Not for Curious George and not for us. That is the price or Aadhaar.
This article is derived from a talk delivered by Adv Shyam Divan at the 7th NLSIR Symposium at National Law School, Bangalore on 21 December 2013
(Shyam Divan is a Senior Advocate, practicing in the Supreme Court of India)
Most of those who are in public life are in the ‘fifth column’ because of either their naivety or their seemingly apolitical tunnel vision for UIDAI’s Aadhaar project, which makes them act treacherously in a historical vacuum
It is said that once on a military campaign Napoleon Bonaparte, a military and political leader of France, stood outside his tent in the battlefield facing the most fortified castle of an European city and said, “Once this city is taken, nothing will stop my campaign, and I'll soon be Emperor of France" with my five army columns. Everybody knew about his four columns of army but not the fifth. When asked about his 5th column, Napoleon replied, "My fifth column is within the city itself!” Soon the gate keepers of the castle were clubbed to death, the huge gates swung open, and Napoleon's soldiers marched through. The "fifth columnists" told him about the barracks full of soldiers kept to defend the city. Napoleon woke them and asked them to join him or die. The city fell in no time and Napoleon did indeed go on to become Emperor of France with the help of the fifth columnists.
There is an unacknowledged relationship between the biometric Unique Identification (UID)/Aadhaar project and the US-based National Defense Industrial Association (NDIA). The latter was set up in 1919 to scale up the war effort during World War-I. Since then, it has been “promoting national security” of the US and 'institutionalising' Biometrics Enabled Identification based on Automatic Identification Technologies (AIT). The same National Defense Industrial Association-sponsored Unique Identification (UID) Industry Leadership Advisory Group (ILAG) that was organised “in March 2005 at the suggestion of the US Department of Defence (DoD) UID Program Manager to serve as a defense industry focal point for government-industry collaboration and coordination in developing UID implementation policy and procedures.”
Notably, Defence Procurement and acquisition policy office in the US DoD has a “Unique Identification” (UID) section for “in tracking and reporting the value of items the Government owns”, “Item Unique Identification (IUID) Standards for Tangible Personal Property” and “Unique Identification (UID) Standards for a Net-Centric Department of Defense” that cites “Department of Defense Chief Information Officer (CIO) Memorandum, “DoD Net-Centric Data Strategy”” dated 9 May 2003.
It is stated that IUID requirement does not apply to “software, manuals, etc.” and “commercial off-the-shelf (COTS) items” but it applies to “not-for-profit contracts such as research contracts with universities”, “classified items”, “foreign military sales”, “small businesses”, “government-furnished property”, “Defense Logistics Agency (DLA) requests” “models, prototypes, or development items delivered to DoD”.
US Department of Defence uses both Radio Frequency Identification (RFID) and Item Unique Identification (IUID). “Within IUID, the unique item identifier (UII) is a piece of data associated with an item that uniquely identifies it throughout its life. RFID is a vehicle for holding and sharing data. IUID of tangible items deals with physical markings applied directly (or indirectly via label, data plate, etc.) on items. IUID also requires data to be captured about the item and submitted electronically to a registry database. It is thought of as creating a birth certificate for the item. On a superficial level, IUID and RFID employ different technologies. IUID utilises an optically scannable 2-dimensional data matrix barcode to carry information whereas RFID utilises some form of integrated circuitry to encode information and produce radio waves which can be received and interpreted at a greater distance with a radio antenna and receiver.
Notably, RFID has been recommended in India for installation vehicles and libraries. A briefing paper of Government of India observed that “Information or an opinion about an individual” is personal sensitive information.
Functionally, IUID’s purpose within the (US) DoD is “to uniquely identify individual items”. The purpose of RFID within the (US) DoD is “to identify cases, pallets, or packages which contain items”. UID Policy Office of US DoD has a number of working groups to support the development and implementation of the UID policy. These include Working Groups on: Logistics IUID Task Force, Industry Leadership Advisory Group (ILAG), Wide Area Work Flow (WAWF)/UID/RFID Users Group, Property Management, Joint Aeronautical Commanders, Government Furnished Property Industry, Federal Acquisition Regulation, Business Rules, Standards, Implementation, Technical Interface and IUID Quality Assurance.
Biometrics technology companies like Raytheon Company who were awarded by National Defense Industrial Association in 2009 participated in the ILAG. They have created an artificial need to sell their surveillance products in India unmindful of its dehumanising ramifications. It is these entities which are behind the biometric UID/Aadhaar project and the Bill to sell their products.
The preamble of The National Identification Authority (NIDAI) Bill, 2010 which was rejected by the Parliamentary Standing Committee on Finance reveals that it is meant “for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals”. There are two parts to the phrase “individuals residing in India and to certain other classes of individuals”.
The first part refers to “resident” as an individual usually residing in a village or rural area or town or ward or demarcated area (demarcated by the Registrar of Citizen Registration) within a ward in a town or urban area in India.” This motivated definition of the term resident in the Section 2 (q) of the NIDAI Bill accords wide scope to the Bill. It leaves the definition vague about the Indians who are residing abroad temporarily, non-resident Indians (NRIs), persons of Indian origin (PIOs) and refugees. By now, Indians know that there are NRIs and PIOs of all ilk and shades whose role merits rigorous attention. The second part of the phrase is “certain other classes of individuals”. The first part is defined but the second part has not been defined.
The National Identification Authority (NIDAI) Bill, 2013 which was re-approved by the Union Cabinet on 8 October 2013 was listed for introduction in the winter session of the Parliament between 5th to 18 December 2013, but it could not be introduced. In the new version, “certain other classes of individuals” have been substituted with “certain other categories of individuals to enable establishing the identity.”
In the NIDAI Bill 2010, Section 4(3) reads, “An Aadhaar number shall, subject to authentication, be accepted as proof of identity of the Aadhaar number holder.”
In the NIDAI Bill, 2013, Section 4 (3) reads, “An Aadhaar number in physical or electronic form, subject to authentication and other conditions as may be specified by regulations, shall be accepted as proof of identity and proof of address.” Along with it is added an “Explanation—For the purposes of this sub-section, the expression “electronic form” shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000.”
Section 9 of the Bill reads: “The Authority shall not require any individual to give information pertaining to his race, religion, caste, tribe, ethnicity, language, income or health.” The issue here is once someone has been biometrically profiled and identified ‘Prohibition on requiring certain information’ becomes irrelevant. But the question is how biometric information is less sensitive than information regarding race, religion, caste, tribe, ethnicity, language, income or health collection of which is prohibited?
Section 10 of the Bill reads: The Authority shall take special measures to issue Aadhaar number to women, children, senior citizens, persons with disability, migrant unskilled and un-organised workers, nomadic tribes or to such other persons who do not have any permanent dwelling house and such other categories of individuals as may be specified by regulations.” It does not reveal or define the “special measures” being deployed to trap these categories of people in the database.
The Bill makes a specific distinction between the “identity information” in respect of an individual means biometric information, demographic information and Aadhaar number of such individuals” and “demographic information” that includes information relating to the name, age, gender and address of an individual (other than race, religion, caste, tribe, ethnicity, language, income or health), and such other information as may be specified in the regulations for the purpose of issuing an Aadhaar number. It refers to “biometric information” as “a set of such biological attributes of an individual as may be specified by regulations.” It is important to note that although Planning Commission or Ministry of Home Affairs does not have the legal mandate to collect biometric data instead of seeking that mandate under the NIDAI Bill, there is once again an effort being made to do it through sub-ordinate legislation.
The Bill defines “Central Identities Data Repository” (CIDR) as “a centralised database in one or more locations containing all Aadhaar numbers issued to Aadhaar number holders along with the corresponding demographic information and biometric information of such individuals and other information related thereto.” It is not made clear as to why CIDR will be at “one or more locations.”
Now, if one looks at the definition of “authentication” in the Bill which is defined as “the process wherein, Aadhaar number along with other attributes (including biometrics) are submitted to the Central Identities Data Repository for its verification and such Repository verifies the correctness thereof on the basis of information or data or documents available with it,” it implies that authentication using CIDR of an “Aadhaar number holder”, an individual who has been issued an Aadhaar number, will be done at “one or more locations.”
It is quite apparent that these locations can be private companies. In effect, a private company of Indian or/and foreign origin will authenticate whether a resident of India is definitely the same person as he/she claims to be. As an implication identity of an Indian citizen is going to be decided by a company, which can be a National Information Utility (NIU), a private company with a public purpose with a profit making as the motive but not maximising profit.
Most of those who are in public life are in the fifth column because of either their naivety or their seemingly apolitical tunnel vision which makes them act treacherously in a historical vacuum. It is evident that in India, knowingly or unknowingly many institutions and individuals are acting like this column, a party that is acting with the foreign and corporate entities to subvert the very idea of India and Indian civilisation under the influence of their supervisors.
Do Indians need to ponder over—who all are in the fifth column, which institutions are acting like this column and isn’t there a need to know the identity of those in the column in question?
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)