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No beating about the bush.
Neither President Pranab Mukherjee, Congress chief Sonia Gandhi, Rahul Gandhi nor several ministers from UPA have enrolled for the Aadhaar scheme. Yet, the UPA government proposes to re-introduce the NIDAI Bill thus mocking parliamentary process at the fag end of the 5-year term after execution of the Aadhaar project
India ranks fifth among countries reporting maximum number of cybercrimes, as per the latest report released by Internet Crime Complaint Centre of the US. There are 20 types of cybercrime being witnessed worldwide. The need for new cyber jurisprudence and new international court for cyber jurisprudence has to come up.
The Committee note that the complex inter-connectivity of Internet with borderless environment, evolving innovative technologies, lack of awareness and rapidly changing security and threat landscape has posed massive challenge to cyber security ranging from data theft, espionage and Denial of Service (DoS) attacks to offensive actions by adversarial State and Non-State actors. The Committee also note that anonymous attacks – groups sponsored by Nations and terrorist groups also have become a major cross border challenge in Cyber Space.
- Report on Cyber Crime, Cyber Security and Right to Privacy, Parliamentary Standing Committee on Information Technology, February 2014
Besides interim budget, fiscal policy statements for 2014-15 and supplementary grants for 2013-14 by P Chidambram, the Finance Minister, the schedule for 17 February 2014 in Rajya Sabha has eight items listed for the legislative business. This list dated, 13 February 2014, has been signed by Shumsher K Sheriff, Secretary General, Rajya Sabha. The last item mentions The National Identification Authority of India (NIDAI) Bill to be re-introduced. It is meant to legalise biometric data collector, Unique Identification Authority of India (UIDAI)’s work done since 28 January 2009. This Bill was trashed and rejected by Parliamentary Standing Committee on Finance in its report to both the Houses of Parliament. This exercise by this lame duck minority government led by Indian National Congress is manifestly insincere.
The item No8 in the legislative business reads “RAJEEV SHUKLA to move that Bill to provide for the establishment of The National Identification Authority of India for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals and manner of authentication of such individuals to facilitate access to benefits and services to such individuals to which they are entitled and for matters connected therewith or incidental thereto, be taken into consideration.” Rajeev Shukla is the Minister of state in the Ministry of Parliamentary Affairs and Planning.
In its observations and recommendations, 25 member Parliamentary Standing Committee on Information Technology in its 88 page report on Cyber Crime, Cyber Security and Right to Privacy dated February, 2014 states, “the Committee is extremely unhappy to note that the Government is yet to institute a legal framework on privacy. When asked about the status of the above legislation, the Department has diverted the issue stating that the Department of Personnel and Training (DoPT) is still in the process of evolving legislation to address concerns of privacy, in general, and it is still at the drafting stage. The Committee seriously feels that in view of enormous data, very sensitive in nature, being consigned to cyber space each day particularly in the light of Government’s visionary UIDAI programme, the Government should not jeopardise the privacy of citizens on the plea that the Department is concerned only with Section 43(A) which it is based on self-regulation.”
The real issue of unhappiness of citizens is why should UID/Aadhaar programme and National Population Register (NPR) be proposed and executed prior to the legal framework for safeguarding right to privacy? How can this Committee feign ignorance of the fact that far from UIDAI programme being “visionary”, it lacks the legal mandate to be brought into operations? Perhaps, the word has been used to underline the irony.
The report aptly states, “The Committee observes that National e-Governance Programme (NeGP) is one of the ambitious projects of the Government and the Department is planning to use ‘Cloud computing’ for e-Governance Programmes and for storing its data. The Committee also note that the Government of India has recently published GI Cloud (Meghraj) – ‘Strategic Direction Paper’ and ‘Adoption and implementation Roadmap’ as a part of this Cloud initiative, which prescribes the precautions, standards and guidelines on security addressing the various challenges and risks and gives more clear dimension to the timelines of implementation. With regard to the usage of ‘Cloud computing’, the Committee in their Twenty-seventh Report (2011-12), had expressed apprehensions about technological and legal challenges associated with the concept of ‘shared platform’ and had recommended the Department to conduct a study/survey to find out the existing scenario nationally and internationally and be prepared with a mechanism to deal with the risks associated with the usage of Cloud computing and be vigilant about such emerging technologies. However, the Committee is surprised to note that though NeGP has entered seventh year of its implementation, the Department has neither conducted any study/survey in this regard nor has any data on instances of cyber security breaches encountered in e-Governance projects. The Committee feel that NeGP being a visionary project of the Government, the Department should not show any laxity. The Committee, therefore, recommend the Department to conduct a study/survey to find out the instances of cyber security breaches in NeGP projects. While cautioning the Department to be extra vigilant with the usage of the new technology ‘cloud’ which is still at a nascent stage, the Committee desire that the Department would stick to their assurance of keeping security issues on priority, particularly, in the implementation of e-Governance projects and make the programme foolproof.”
The report has revealed that the Government has jeopardized the privacy of citizens through UIDAI’s biometric identification exercise in that case how is that the Committee mention Government’s UIDAI programme as visionary. Given the fact that the UIDAI’s data is admittedly stored on cloud, the fact that government ignored the Committee's apprehensions on the usage of ‘Cloud computing’, the concept of ‘shared platform’ and the risks associated with the usage of Cloud computing in the 5th year of the implementation of Aadhaar unmindful of cyber security breaches encountered in e-Governance projects, the government merited strong criticism. Instead of censuring the Government and making it accountable, the Committee only expresses surprise. But in its own mild way, this Committee also trashed government’s unpardonable callousness towards the security ramifications of storing UID/Aadhaar data on cloud and the failure to enact a legal framework for right to privacy. As has been done with right to privacy although the government admitted the need of enacting a legal framework for UIDAI, its tenure is about to an end without enacting it.
At page no. 46-47, the report Parliamentary Standing Committee on Information Technology that examined the work of Department of Electronics and Information Technology (DeitY), Ministry of Communications and Information Technology, asked about the surveillance by National Security Agency (NSA) of the US. It states that in the context of privacy of data, the Committee desired to know the Department’s stand on the issue of surveillance by US and interception of data sent through e-mails. To this, J Satyanarayana, Secretary, DeitY, responded during the evidence as under:-
“Sir, about the US surveillance issue, there has been a debate, as you are aware, this morning in the Rajya Sabha itself and the hon. Minister has addressed this issue. He also emphasised that as far as the Government data and Government mails are concerned, the policy, the copy of which I have given to the Committee earlier, is going to address a large part of it. Hopefully, by the end of this year, if it is implemented, the things will be absolutely safe and secure…x.x.x.x…In the reply, the Hon. Minister also said that we have expressed our serious concern about the reported leakages and in the name of surveillance, the data that has been secured from various private sources, internet resources by the US Government. We have expressed it formally to the Government of the US and also during the Secretary of State’s visit a few weeks ago in India, this has been reinforced on a person to person basis. We have been assured that whatever data has been gathered by them for surveillance relates only to the metadata. It has been reiterated and stated at the highest level of the US President that only the metadata has been accessed, which is, the origin of the message and the receiving point, the destination and the route through which it has gone, but not the actual content itself. This has been reiterated by them, but we expressed that any incursion into the content will not be tolerated and is not tolerable from Indian stand and point of view. That has been mentioned very clearly and firmly by our Government.”
In effect, the Indian National Congress-led government has formally communicated to Government of US that India has no problem if they conduct surveillance for metadata in fact it is acceptable and tolerable but “incursion into the content will not be tolerated and is not tolerable.” An Urdu couplet- hum woh hai jo khat ka mazmoon bhaap lete hai lifafa dekhkar (we are those who can assess the content of letter by merely looking at the envelop)-captures the message from the US what Congress party in particular and the political class in general have missed. Such faith in Government of US' empty words is akin to Jawaharlal Nehru's gullibility with regard to designs of Chinese government that led to the humiliating defeat of India in 1962 and Mir Jafar's touching 'innocence' about the deeper designs of British East India Company that compelled him to switch sides in the battle of Plassey in 1757.
The Parliamentary Committee observes, “While taking note of the Department’s stand on the recent instances of surveillance and interception of data (though only meta-data) by other countries, that incursion into the content of the country’s data will not be tolerated, the Committee is of the strong opinion that the Department should have exercised enough caution so that such a situation was not allowed to occur at the first instance. Further, the Committee feels that the Department should be extremely vigilant and cautious in terms of safety as well as in terms of policy with different countries so as to avoid such leakage and interception of sensitive data in the name of surveillance. The Committee, therefore, strongly recommends the Department to take remedial measures and come out with a policy which should be implemented stringently so as to obviate recurrence of such instances.”
This report was presented to both the Houses of Parliament on 12 February 2014. It reveals that Indian Computer Emergency Response Team (CERT-In) has signed memorandum of understanding (MoU) with Computer Emergency Response Team, US (US-CERT), Japanese Computer Emergency Response Team Coordination Centre (JP-CERT/CC), National Cyber Security Centre (NCSC), South Korea, Computer Emergency Response Team, Mauritius (CERT Mauritius, Computer Emergency Response Team, Kazakhstan (CERT Kazakhstan) and Government of Finland for international cyber security cooperation arrangements. Department of Electronics and Information Technology have signed a MoU with Canada in ICT and Electronics sector. The Department, with the help of Ministry of External Affairs, is having engagement dialogue with several countries such as Malaysia, Israel, Egypt, Canada and Brazil on cyber security incidents and vulnerabilities in IT products and systems.
Edward Snowden has disclosed that several of the countries like Canada, South Korea and others, with whom the MoU has been signed, are in the intelligence bartering/ sharing alliance with the US, prior to India’s independence.
While presenting the Union Budget 2009-10, the then Finance Minister, Pranab Mukherjee had announced the setting up of the UIDAI by the Government to “establish an online data base with identity and biometric details of Indian residence and provide enrolment and verification services across the country.” He had allocated Rs120 crore for this project as “a major step in improving governance with regard to delivery of public services.”
The Minister did not inform the Parliament that UIDAI “was created during 2009-10 and a modest start with an expenditure of Rs30.92 crore was made.” Parliament has been kept in dark about how Unique Identification (UID) /Aadhaar Numbers to every resident in India started unfolding without sharing “the linkages of various welfare schemes steered by different Ministries/departments of Government of India”.
The Parliament remains unaware about how UIDAI selected the “Managed Service Provider” for the Central Identity Data Repository (CIDR) of biometric UID/Aadhaar numbers. For this, a budget of Rs1900 crores was allocated in the Union Budget 2010-11 by the Finance Minister. It is admitted that “CIDR will be handed over to the Managed Service Provider (MSP) on a long term contract basis.”
Economic Survey 2011-12 claimed, “The Aadhaar project is set to become the largest biometric capture and identification project in the world.” It is admitted by UIDAI that there are “ownership risks (Ownership of the project by stakeholders), Technology risks (nowhere in the world a project of this size has been implemented) and privacy concerns (there may be groups raising privacy issues – many ID Projects in western countries have been stalled due to the opposition of privacy groups).” The UIDAI claims that it is “putting into place the risk mitigation strategies to minimize some of these risks” but this has never been shared with the Parliament and the citizens.
Union Budget speech 2012-13 under the heading Growth, Fiscal Consolidation and Subsidies reads: “23. The recommendations of the task force headed by Shri Nandan Nilekani on IT strategy for direct transfer of subsidy have been accepted…This step will benefit 12 crore farmer families, while reducing expenditure on subsidies by curtailing misuse of fertilizers.” Such claims of benefits from direct transfer of subsidy has been debunked in the past, but government remains adamant to pursue this path under the influence of vested interests.
The Ministry of Planning, in their Action Taken Reply has been quoted as having stated that “UIDAI has been authorized to enroll 60 crore residents by March 2014 through the multiple registrar approach. As against this, UIDAI has enrolled 36.58 crore residents and a further 10.94 crore residents have been enrolled by RGI. Total enrolments by the end of June 2013 is 47.52 crore. The total Aadhaar generation up to the end of June 2013 is 37.37 crore......The average cost per card is estimated to range between Rs100 to Rs157” in October 2013 report of PSC to the Parliament. The total budgetary allocations made for UIDAI since its inception up to 31 March 2014 is Rs5,440.30 crore, as per details given below:
Amount (Rs. crore)
*Actual Expenditure, ^ Budget Estimates
The budget of this project comes under the ministry of planning. The budgetary support to Aadhaar was increased by 47% to Rs1,758 crore in 2012-13 from Rs1,200 crore in 2011-12 for UIDAI to enroll Indian residents for their unique IDs/Aadhaar to 60 crore from 20 crore. A provision of Rs2,620 crore has been allocated in Budget Estimate (2013-14) for UIDAI and a major part of the budget provision for Rs1,040 crore is earmarked for ‘Enrolment Authentication and Updation’, out of which Rs1,000 crore has been earmarked under the head ‘other charges’. What is this “other charges”?
Besides this what is the justification of Planning Commission undertaking enrolment of 60 crore Indian residents under UID and Ministry of Home Affairs enrolling 61 crores under NPR. Is the Congress-led government running two similar projects with public money to merely satisfy the anonymous donors of the party?
The 31-member Parliamentary Standing Committee on Finance examined and censured on numerous occasions. In its April 2013 report on UIDAI (Sixty-Ninth Report) observes, “The Committee is concerned to note that during the last three financial years (up to January, 2013), a huge sum of Rs2,342 crore has been spent on the Scheme and Rs2,620 crore has been allocated in BE 2013-14, out of which Rs1,040 crore is earmarked for ‘Enrolment Authentication and Updation’ pending legislative sanction of the Scheme. The Committee strongly feels that in the absence of legislation, Unique Identification Authority of India (UIDAI) is discharging its functions without any legal basis.”
As of 1 February 2014, the members of the Cabinet Committee on Unique Identification Authority of India (CCUIDAI) related issues that oversee the project include Dr Manmohan Singh, Sharad Pawar, P Chidambaram, Sushilkumar Shinde, Kapil Sibal, Girija Vyas and Jairam Ramesh. After it came to light in a cabinet meeting that these ministers themselves were not clear as to whether biometric identifier number branded as Aadhaar refers to a card or a number, the Group of Ministers (GoM) regarding ‘Issue of Resident Identity Cards’ to all usual residents of the country of age 18 years and above under the scheme of National Population Register (NPR) was constituted to look for an answer, it seems. The Terms of Reference of this GoM is to “examine all aspects relating to the proposal for issuing Resident Identity Cards to the usual residents of the country, keeping in view all relevant issues and finalize its recommendations at an early date.” This GoM on Resident Identity Cards has an ulterior motive of outwitting opposition parties because during Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA) regime, the same was proposed. It is an exercise to create an illusion of bipartisan support.
It is quite astounding that none of the members of CCUIDAI or the GoM members, be it AK Antony, P Chidambaram, Ghulam Nabi Azad, Sushilkumar Shinde, Ajit Singh, Kapil Sibal, Praful Patel, V Kishore Chandra Deo or Jairam Ramesh have got themselves enrolled for either UID/Aadhaar or NPR. Notably, Sonia Gandhi and Rahul Gandhi, the political patrons of the project have chosen not to enroll and baptize themselves with so-called right to identity to them. Pranab Mukheree, who fathered the project and declares how he set it rolling in his bio-data is also conspicuous by refraining from enrolment like LK Advani, Mayawati, Mamata Banerjee, Mulayam Singh Yadav, Prakash Karat, Nitish Kumar or Arvind Kejriwal. None of the known editors of print and electronic media have enrolled themselves for it. No known social worker, be it Medha Patkar, Aruna Roy or Sandeep Pandey have endorsed it. No known judges, lawyers, jurists or academicians of the country have got themselves biometrically profiled under the project. In fact acclaimed scholars like Ashis Nandy have referred to UID number as prison number. Likes of whistleblowers such as AK Jain and Press Council of India member, Arun Kumar have debunked it. This demonstrates that the project does not enjoy the confidence of the senior most politicians, judges, scholars, activists and the legal fraternity of the country. From among the political class only those who appear innocent of deeper politics like Raj Thackeray, Arjun Munda and Narendra Modi have been conned into it.
In such a scenario, any further allocation for UIDAI in the interim budget, 2014-15 which “is discharging its functions without any legal basis” will be yet another act of contempt towards Parliament and citizens’ democratic rights. The proposal to re-introduce the NIDAI Bill is a disingenuous exercise mocking parliamentary process at the fag end of the 5-year term after the execution of the project, which seems aimed at creating a charade of trying to create a legal basis for indefensible UIDAI.
Attempts are underway to make this ‘online” demographic and biometric database cloud irreversible and ubiquitous so that it can be the cow, which can be milked until the sun sets on national and transnational patrons of Congressmen, their acolytes and outsourcing companies.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
Wittingly or unwittingly, most political parties and media houses appear to be guilty of propagating self-serving and contrived nonsense about 'inherently fallible' biometric identification (Aadhaar) based initiatives of US Department of Defense, NATO, World Bank Group and other international financial institutions
One must accept a continuing divergence between approved and conditioned belief and the reality. In the end, it is the reality that counts.
-John Kenneth Galbraith in "The Economics of Innocent Fraud"
"The story of the march to global empire did indeed appear to be leaking out. Not the details, not the fact that it was a tragic story of debt, deception, enslavement, exploitation and the most blatant grab in history for the hearts, minds, souls, and resources of people around the world.
-John Perkins, in his book "Confessions of an Economic Hit Man: The shocking inside story of how America REALLY took over the world"
COBB: No idea's simple when you have to plant it in someone else's mind.
SAITO: My main competitor is an old man in poor health. His son will soon inherit control of the corporation. I need him to decide to break up his father's empire. Against his own self-interest.
COBB: This isn't the usual corporate espionage, Mr. Saito. This is inception. The seed of the idea we plant will grow in this man's mind.
It'll change him. It might even come to define him.
-From INCEPTION, a movie by Christopher Nolan
Aren't most supporters of Nandan Nilekani, the former chief executive of Infosys, C Chandramouli, Sam Pitroda and Capt Raghu Raman guilty of "innocent fraud"? Haven't they been manipulated by a brigade of economic hit man (EHM) which is on the prowl? In the contested terrain of jurisdiction, execution of purportedly innocent legal action that tantamount to fraud but claim of being lawful, are deemed innocent fraud. In the name of delivery of public good and services, Indians are witnessing the same being practiced amidst legal challenge by the Parliamentary Standing Committee on Finance, West Bengal Assembly, and High Courts and in the Supreme Court. Perhaps, one cannot put Nilekani's Boss, Montek Singh Ahluwalia in this category.
As to the machinations of EHMs, whose job is to encourage world leaders to become part of a vast network that promotes US commercial interest, who are ensnared in a web of debt that ensures their loyalty in furtherance of its political, economic and military needs? The political position of these leaders is bolstered through industrial parks, power plants and airports to their people although workers therein are mere wage slaves. As a consequence, "The owners of US engineering/ construction companies become fabulously wealthy." This is revealed by John Perkins, in his book Confessions of an Economic Hit Man: The shocking inside story of how America REALLY took over the world.
One gets an indication of how the seed of the idea about identification and transformation being propagated by World Bank Group may have been planted in the minds of Rahul Gandhi and the then Finance Minister, Pranab Mukherjee by ID cartels, in "Decoding Rahul Gandhi", a book by Aarthi Ramachandran. The book reveals how GK Jayaram's Bangalore based Institute of Leadership and Institutional Development (ILID) was a consultant to Rajiv Gandhi Foundation and Rajiv Gandhi Institute of Contemporary Studies adopted VISTAR or 'transformation' and the same was used by Rahul for his failed attempt to train Indian Youth Congress (IYC) and National Students' Union of India (NSUI). Jayaram who has taught at the US Navy Post-Graduate School and worked in US firms like AT&T, Arthur D Little (ADL), Coopers & Lybrand had also set up Infosys Leadership Institute (ILI). ILID set up Jawaharlal Nehru Leadership Institute (JNLI) in 2008 for training NSUI with Jayaram as its chief mentor.
Associated Press reported on 22 August 2007 that US National Intelligence Director, Mike McConnell confirmed that AT&T was one of the telecommunications companies that assisted with the government's warrantless wire-tapping program on calls between foreign and domestic sources. Mark Klein, a former AT&T technician told Keith Olbermann, MSNBC on 8 November 2007 that all internet traffic passing over AT&T lines was copied into a locked room at the company's San Francisco office - to which only employees with NSA clearance had access. Associated Press also reported that AT&T keeps for five to seven years-record of 'who text messages whom' and the date and time, but not the content of the messages on 29 September 2011.
As to ADL, it is notorious for having claimed that sabotage was the cause of the Bhopal disaster as it was paid by Union Carbide Corp. As to Coopers & Lybrand, it merged with Price Waterhouse. As to Bell Laboratories, it is the research and development (R&D) subsidiary of Alcatel-Lucent in Berkeley Heights at New Jersey that handles sensitive US contracts in the communication technology field. It was previously a division of the American Telephone & Telegraph Company (AT&T Corp).
Subsequently, a web-based Pehchaan (identity) platform was set up "as a mechanism to identify and promote elected office-bearers (EOBs) at every level." The text of the resolution in this regard reads, "Every EOB is allotted a unique ID and password and given the opportunity to share their work and connect with the organization at various levels." Not only that the "IYC tied up with Google to provide it with a communications platform using cloud computing technology. The IYC's applications on Pehchaan such email, chat and others apps were provided by Google."
Its newsletter dated July 2011, disclosed that it planned to move 28, 000 of its EOBs and volunteers on to Google platform to help them "carry out various development programmes at grassroots level all across India."
Rahul also unsuccessfully attempted to appoint Aam Aadmi Ka Sipahi (AAKS) for two years tenure of enablers from the Congress party to work at the panchayat/ ward level through Ashok Tanwar, his protégé and President of IYC.
When Arnab Goswami of Times Now asked Rahul in his first long interview in 10 years, to respond to what Narendra Modi tells voters about Congress having been given 60 years but he seeks only 60 months for BJP, Rahul responded, "We are talking about Aadhaar which is going to give money directly to the people," which is limited to only 60 crore Indian residents. In his speech at the conference of All India Congress Committee, Rahul boasted that he has given right to identity through Aadhaar, which is directly being implemented by Planning Commission's Unique Identification Authority of India (UIDAI) and indirectly through National Population Register (NPR) of Ministry of Home Affairs (MHA).
Aarthi Ramachandran, his decoder underlines, "Rahul's approach to change through his backing of for measures such as the UIDAI scheme reveals an unwillingness to engage with the existing system. It is an attempt to superimpose new systems over existing structures. This approach is bound to meet the fate of his experiments in the IYC and the NSUI…"
She observes, "Also in the name of better targeting of the poor for state sponsored schemes, the UID programme pays little attention to privacy issues" and notes that Parliamentary Standing Committee on Finance "was scathing in its rejection of the scheme…"
Rahul Gandhi's interview with Times Now has revealed what was blanked out from electronic media by Congress party when students at Jawaharlal Nehru University (JNU) had quizzed him on the evening of 29 September 2009. Rahul is consistently evasive in his replies. He refuses to engage with not only the existing system but also with tough questions. Had his interaction with the students been broadcast, it would have revealed his political and social understanding in a deeper way than his non-replies to Times Now did. One student had commented in his face, "Rahul bhai, you are a real rajneta. You are speaking so much but answering nothing", once again the recent TV interview has vindicated the opinion of JNU students about him. In answer to series of difficult questions, he said, tough questions posed to him in the university campus do not change existing structures outside the campus. UID scheme is all set to undermine all the existing institutional safeguards because Rahul has been a colossal failure in responding to tough political questions.
Why is Rahul maintaining silence about the emergency architecture based on Centralized ID Repository (CIDR) of Aadhaar number, NPR number and National Intelligence Grid (NATGRID), whose database is stored on cloud akin to what has been decided for the EOBs of IYC and Congress through Google's cloud computing, which is in agreement with IBM since 2007?
Meanwhile, it must be noted that Indian National Congress is a party, which gets 90.38% of its funds in cash between 2008 and 2012. Almost 89.11% of its money comes from unaccounted sources and unnamed sourced. Aren't Google and IBM funding Congress?
It seems understandable for the Congressmen in provinces to become servile and subject themselves to biometric identification like obedient boys. But it is inexplicable as to why when the Pehchaan (identity) platform of the Congress was extended the whole country, even likes of Modi volunteered to be profiled? Are visible and invisible corporate donors dictating these actions or is some EHMs who have made inroads in BJP too are calling the shots.
Or is it because of Narendra Modi's closeness to Japan (which is under the security umbrella of US since its defeat in World War II), which hosted him in 2007 after the US revoked his visa in 2005 under a domestic law for "severe violations of religious freedom" under a US law? Tycoons in Japan are also close to Nilekani who as the CEO of Infosys Technologies was one of the Co-Chairs at the World Economic Forum (WEF) on East Asia in Tokyo in June 2006 that focused on 'Creating a New Agenda for Asian Integration.'
Infosys has been a part of the WEF since 1997. Coincidentally, the theme of Asian integration fits quite well with World Bank's convergence initiative that was formally launched in April 2010.
A poem titled "UID" by Dr SP Udayakumar aptly captures the emerging situation and urges action:-
U are no longer U,
I am no longer I,
We are all 12 number Digits
It's their UID.
U carried anything?
I never held nothin.
Now U and I keep something,
It's their UID.
U aren't Kashmiri Muslim,
I am no Kanyakumari Tamil,
U and I are numbers
It's our new ID.
RAW can track U and I
IB, CBI can keep an eye,
So can Q-Branch and CID
That's why we have UID.
Where I go, when I come,
Who U see, what U chomp,
PMO can find and U can't hide,
That's what does the UID.
Grandpa's name and color of eye,
Dates and prints and scanned iris,
All other data have U and I
Hi-tech plastic will keep it by.
U and I were roaming free
No longer will they allow that spree,
Rich men inside and rich men out
Want to keep us under their clout.
Poor we were, but free I say
Alas, now we're sold to USA,
Indeed the UID is our new ID
And UID is nothing but USAID.
The Great Dictator of Modern Times
Protects, provides and makes high claims,
As long as carry the card U and I
And never say nay or ask even why.
Think your thoughts and speak your mind?
Stand up high with friends behind,
Demand your rights and cry and coo?
He'd find your number and burst U too.
Wake up U, I wake up thee,
Shirk your sleep and apathy.
U and I should make a deed
Lest we lose our Hind ID!
Meanwhile, arguments against legally questionable biometric Aadhaar are underway in the Supreme Court.
But when Raj Chengappa, editor-in-chief of The Tribune Group of Newspapers asked Arvind Kejriwal, leader of Aam Aadmi Party (AAP) on 9 February 2014 as to what is his view of the Aadhaar card scheme? Kejriwal replied, "It is not a bad idea to give people some sort of identification. However, there are certain objections, which need to be addressed." It is the 5th year of the 12 digit Unique Identification (UID) Number branded as Aadhaar but neither Chengappa nor Kejriwal realize that Aadhaar is not an identification card but a biometric identifier number that verifies citizens as subjects. Shouldn't Kejriwal as Delhi chief minister issue orders asking officials to remove Aadhaar from the list of identity proofs now that he has conceded that "there are certain objections" against the Aadhaar scheme that have remained unaddressed? This author witnessed it being considered as one of the identity proofs at Delhi Secretariat-AAP does seem to realize that it is one of the pernicious residual legacies of Congress Government that merit immediate attention and action.
"Out of the pecuniary and political pressures and fashions of the time, economics and larger economic and political system cultivate their own version of truth. This last has no necessary relation to reality...what is convenient to believe is greatly preferred…It is what serves, or is not adverse to, influential economic, political and social interest," wrote John Kenneth Galbraith in his book The Economics of Innocent Fraud. Be it AAP, UPA, NDA, Federal Front, TMC or MNS, evidently "what is convenient to believe is greatly preferred" in the face of marketing blitzkrieg by vendors of identification technologies.
Wittingly or unwittingly most political parties and media houses appear to be guilty of propagating "self-serving and contrived nonsense" about "inherently fallible" biometric identification based initiatives of US Department of Defense, North Atlantic Treaty Organisation (NATO), World Bank Group and other international financial institutions by reporting unquestionably and approvingly.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
Congress has achieved its political objectives by using CBI, a caged parrot set up through an executive. Now, can it be ruled out that Nandan Nilekani, as a Congress candidate for the 2014 parliamentary elections, may use the Aadhaar database that is being created using an executive, to his and his party’s advantage?
"When the people fear the government, there is tyranny. When the government fears the people, there is liberty."
-Thomas Jefferson, the principal author of the Declaration of Independence (1776) and the third President of the US (1801-1809)
Justice IA Ansari, currently with Patna High Court deserves salute for calling spade a spade. As the judge of Guwahati High Court bench which is the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh, he passed a landmark judgment on 6 November 2013 in WA No119 of 2008 (in WP(C) No6877 of 2005) setting aside and quashing the resolution of Union Ministry of Home Affairs (MHA) dated 1 April 1963, whereby Central Bureau of Investigation (CBI) has been constituted. The judgment has been challenged in the Supreme Court.
The bench of Justice Ansari and Dr (Mrs) Justice Indira Shah refused to accept questionable status quo as a fait accompli. The verdict of Justice Ansari who authored it predates the verdict of Judge Richard Leon of the US District Court of Columbia, which was passed on 16 December 2013. Justice Ansari pronounced CBI as unconstitutional citing Jefferson, the third President of the US and Judge Leon pronounced US’ National Security Agency (NSA) as unconstitutional in his 68-page verdict citing James Madison, the fourth President of US who is considered as the father of US Constitution.
The 89-page long High Court judgment is relevant for the comprehension of the legality of the Planning Commission’s notification dated 28 January 2009 that has created Unique Identification Authority of India (UIDAI) for collection of biometric data and demographic data of Indian residents in order to create a Central Identities Data Repository (CIDR) to collate it with MHA’s National Population Register (NPR). Once collated, both CIDR of 60 crore and NPR of 61 crore residents of India will become one database of unique identification (UID) numbers, which is branded and advertised as ‘Aadhaar’ number. The name Aadhaar does not feature in the notification that created UIDAI.
As per the notification that set up the UIDAI, it has the responsibility to lay down plans and policies to implement the UID scheme, which would include giving UID numbers to residents, interlinking UID with partner databases on a continuous basis, to keep the database updated, and "take necessary steps to ensure collation of NPR with UID (as per approved strategy)." UIDAI is also supposed to "identify new partner/user agencies", to "issue necessary instructions to agencies that undertake creation of databases and to “enable collation and correlation with UID and its partner databases." The notification states that the Planning Commission is the nodal agency and the UIDAI “shall own and operate the database."
It may be recollected that at a talk on UID number delivered at the World Bank on 24 April 2013, Nandan Nilekani, with a rank as ‘Cabinet Minister’ responsible for UIDAI said, “First of all, this is not an ID card project. There is no card. There is a number. It's a virtual number on the cloud, and we don't give a physical card. We do send you a physical letter with your number, which you keep in your pocket, but the real value of this is the number on the cloud."
In an interview to NDTV, he said, “this number does not confer any rights, it does not confer any benefits, it does not confer any entitlements. It's just a number authenticating that you are who you claim to be…. If somebody's name is Madanlal and if this Madanlal is in database with finger prints then if Madanlal goes somewhere and says I am Madanlal 123, the system will say yes this is Madanlal. That's it. It’s only a verification system and all the residents of the country can get this number. What are the rights, what are the benefits, what are the entitlements are things that will be done by other systems that will use this core system for identity verification only.”
Did Planning Commission or any agency or the legislature allow storage of biometric database being created on the cloud? Is such overreach permissible? Has its ramification for security of the country and citizens been looked into?
The question as to who owns and manages the database of biometric numbers on the cloud and whether the owner/manager is subject to the jurisdiction of Indians laws remains unexplained.
It may be noted that IBM, a US company, is deemed the original virtualization company. It did its first experiments for the virtual machine (VM) in 1960s. This involves remote machines of some company that can process even complex data analysis programs and shift workload from local in house machines. It is the computer networks that create cloud-a virtual space. It decreases demand for more space for hardware and software on the user's side by using cloud computing system's interface software. It is akin to a web browser. Our e-mail program, its software and storage for the mail account is on a computer cloud, for instance. In 2007, IBM announced a partnership with Google to promote cloud computing in universities. Hasn’t Edward Snowden’s disclosures revealed that even the emails of heads of states have been compromised? Have drawbacks like database security, sale of personal sensitive information and the ulterior motives of Big Data companies been examined? Besides it is not clear what is getting encrypted on the cloud and what is in the commons. Big data from developing countries, which are gullible and myopic, is easily accessible. Does this hold true for advanced countries as well? What was copyrighted in the earlier is increasingly being encrypted in the unfolding era. Is it irrelevant to recollect the role of IBM in facilitating holocaust in Germany in this context?
The Supreme Court was to hear the case challenging the legality of UIDAI on 28 January 2014 but now it is listed for hearing on 4 February 2014. The Contempt Petition (Civil) No144/2014 besides Writ Petition (Civil) No494 of 2012, WP(C) No829 of 2013, WP (C) No932/2013, TC (C) No152/2013, TC (C) No151/2013 and WP(C) No833/2013 is listed for hearing in Court no.4 of Dr Justice BS Chauhan, Justice J Chelameswar and Justice MY Eqbal.
As per approved strategy, Planning Commission appears to have been used to pilot it only to give Aadhaar an innocent garb and to mouth unconvincing claims about benefits of biometric identification in delivery of social welfare schemes. Wittingly or unwittingly, the merger of these schemes with biometric identification have done to use the former as a fish bait at the behest of Big Data companies.
MHA’s questionable institutions are facing robust legal challenge. By now, it is clear that the way MHA created and operated CBI incorrectly arguing that it is being done under Delhi Special Police Establishment Act, 1946, UIDAI and NPR, too, are its illegitimate child of MHA and Planning Commission.
The judgment on CBI begins with the quote of Thomas Jefferson on how tyranny is when people fear the government and its liberty when government fears the people. It was delivered after hearing PP Malhotra, additional solicitor general of India and Dr LS Choudhury, the appellant’s counsel.
Admittedly, the creation of CBI was undertaken by keeping States in dark. States have protested vociferously against such moves when in a similar manner National Counter Terrorism Centre (NCTC) with National Intelligence Grid (NATGRID) was being bulldozed. The same is being attempted through Cabinet Minister ranked Sam Pitroda’s Public Information Infrastructure. These measures reveal that government is increasingly fearful of the people. Gujarat Chief Minister Narendra Modi, for instance, has gone on record to say that States were not on board in the matter of biometric identification although it seems he was misled into biometric enrolment by RS Sharma, the current Chief Secretary of Jharkhand.
The High Court judgment in the matter of CBI was pronounced after examining questions like: Whether ‘Central Bureau of Investigation’, popularly called CBI, is a constitutionally valid police force empowered to ‘investigate’ crimes?, Could a ‘police force’, empowered to ‘investigate’ crimes, have been created and constituted by a mere Resolution of Ministry of Home Affairs, Government of India, in purported exercise of its executive powers?, Could a ‘police force’, constituted by a Home Ministry Resolution, arrest a person accused of committing an offence, conduct search and seizure, submit charge-sheet and/or prosecute alleged offender?, Whether CBI is a ‘police force’ constituted under the Union's Legislative powers conferred by List I Entry 8?, Do Entry 1 and 2 of the Concurrent List empower the Union Government to raise a ‘police force’ and that, too, by way of Executive instructions of Union Home Ministry?, Whether Delhi Special Police Establishment Act, 1946, empowers the Union Home Ministry to establish a ‘police force’ in the name of CBI? And above all, is it permissible for the Executive to create a ‘police force’ with power to ‘investigate’ crimes in exercise of its executive powers, when exercise of such a power adversely affects or infringes fundamental rights embodied in Part III of the Constitution, particularly, Article 21?
The petitioner had sought quashing of the impugned Resolution No4/31/61-T, dated 1 April 1963, where under the Central Bureau of Investigation stands established, as ultra vires the Constitution of India. It was argued that since police is a State subject within the scheme of the Constitution of India inasmuch as it is only a State Legislature, which, in terms of Entry No. 2 of List-II (State List) of the Seventh Schedule to the Constitution of India, is competent to legislate on the subject of police and, therefore, the Central Government could not have taken away the power, which so belongs to State legislatures, and create or establish an investigating agency, in the name of CBI, adversely affecting or offending the fundamental rights, guaranteed under Part III of the Constitution of India.
Notably, the petition against biometric UID/Aadhaar number seeks quashing of the notification that set up the UIDAI. The biometric identification is emerging as the initial step for investigation without any legal basis.
The High Court judgment in the matter of CBI has noted that the Constituent Assembly debates, dated 29 August 1949, wherein Dr BR Ambedkar had clarified that the word ‘investigation’, appearing in Entry 8 of List I (Union List) of the Seventh Schedule, which read, “Central Bureau of Intelligence and Investigation”, would not permit making of an ‘investigation’ into a crime by the Central Government inasmuch as ‘investigation’ would be constitutionally possible only by a police officer under the Code of Criminal Procedure (Cr PC), police being exclusively a State subject and the word ‘investigation’, appearing in Entry 8 of List I (Union List), would, in effect, mean making of merely an ‘enquiry’ and not ‘investigation’ into a crime as is done by a police officer under the Code of Criminal Procedure. The word `investigation’ is, therefore, according to the Constituent Assembly Debates, intended to cover general enquiry for the purpose of finding out what is going on and such an investigation is not an investigation preparatory to the filing of a charge- sheet against an offender, because it is only a police officer, under the Criminal Procedure Code, who can conduct ‘investigation’.
In its affidavit, the CBI, claimed that “it had been exercising functions and powers of police under the Delhi Special Police Establishment Act, 1946. In its affidavit, filed in the writ petition, the CBI further submitted that the CBI has had been functioning for more than four decades, but its constitutional validity has never been challenged by any one and, hence, this settled position may not be unsettled.” This is a bizarre defence. Similar defenses are being advanced for UIDAI and Aadhaar in the Supreme Court.
The petitioner argued that “Delhi Special Police Establishment Act, 1946 (in short, ‘the DSPE Act, 1946’) is ultra vires the Constitution, for, it offends, according to Mr Choudhury, Article 372 of the Constitution inasmuch as Parliament is not competent to make law on police for whole of India and it is only a State legislature, reiterates Mr Choudhury, which can make, or could have made, law, on police by taking resort to Entry No.2 in the State List (List II).”
Therefore, the DSPE Act, 1946, cannot continue anymore inasmuch as its continuance violates the basic Constitutional scheme. The Executive Order dated 1 April, 1963 that created CBI, does not disclose that the CBI has been constituted under DSPE Act.
Though “Union of India’s executive powers may, in the light of Article 73, be co-extensive with its legislative powers, the fact remains that the executive powers cannot be exercised offending fundamental rights, guaranteed by Part III, unless the exercise of such executive powers is backed by appropriate legislation; but, in the cast at hand, the resolution, dated 1 April 1963, where under CBI has been constituted, is not backed by any legislation”, the judgment notes.
Notably, Article 73 has been invoked for UIDAI and its functions as well. The report of the Parliamentary Standing Committee on Finance on The National Identification Authority of India (NIAI) Bill that rejected this UID Bill notes, “On being asked about the legal basis under which the UIDAI is functioning at present, and the mechanism that the UIDAI has adopted, since its inception, to deal with any of the issues like security and confidentiality of information and other offences related to issue of the Aadhaar numbers, the Ministry of Planning in a written reply have inter-alia stated that:- ―….The matter about commencement of operation of the UIDAI before a legal framework was put in place was referred to the Ministry of Law & Justice, wherein opinion was sought on the issue whether in absence of a specific enabling law, would there be any constraints in collecting the data (including biometrics) and in issuing the UID numbers to residents in accordance with the mandate given to the Authority. The Ministry of Law & Justice, after examining the matter, had mentioned that it is a settled position that powers of the Executive are co-extensive with the legislative power of the Government and that the Government is not debarred from exercising its executive power in the areas which are not regulated by specific legislation. It had also been opined that till the time such legislation is framed the Authority can continue to function under the executive order issued by the Government and the scheme that may be prepared by the UIDAI. It was also opined that the Authority can collect information/data for implementation of the UID scheme. Such implementation can be done by giving wide publicity to the scheme and persuading the agencies/individual to part with necessary information. The UIDAI has not faced issues such as breach of security and confidentiality, manipulation of biometrics, unauthorized access to the CIDR or other related offences since its inception…..till the time Parliament passes the Bill, these matters will be covered by the relevant laws.”
The report records “the opinion of the Attorney-General of India on the above mentioned issues as obtained by the Ministry of Law & Justice (Department of Legal Affairs) is furnished below:- ―The competence of the Executive is not limited to take steps to implement the law proposed to be passed by Parliament. Executive Power operates independently. The Executive is not implementing the provisions of the Bill. The Authority presently functioning under the Executive Notification dated 28 January 2009 is doing so under valid authority and there is nothing in law or otherwise, which prevents the Authority from functioning under the Executive Authorisation. The power of Executive is clear and there is no question of circumventing Parliament or the Executive becoming a substitute of Parliament. On the contrary, what is sought to be done is to achieve a seamless transition of the authority from an Executive Authority into a statutory authority. All the expenditure, which is being incurred is sanctioned by Parliament in accordance with the financial procedure set forth in the Constitution. If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued. This contingency does not arise. The present Bill being implemented without Parliament’s approval does not set a bad precedent in the Parliamentary form of Government. On the contrary, the fact that the Authority is sought to be converted from an Executive Authority to a statutory authority, it underlines the supremacy of Parliament.”
Contrary to the opinion of the Attorney-General of India, the contingency has arisen because the Bill has not been passed.
The Attorney-General of India, Ministry of Law & Justice and Ministry of Planning have erred in defending the indefensible act of creation of UIDAI, the Supreme Court HAS held, in Dr DC Wadhwa & Ors V/s State of Bihar & Ors (AIR 1987 SC 579), that the executive cannot take away the 51 functions of the legislature. The relevant observations, made in this regard, read as under:
“….The law making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting it to the voice of legislature, it would be nothing short of usurpations by the executive of the law making function of the legislature. The executive cannot by taking resort to an emergency power exercising by it only when the legislature is not in session, take over the law making function of the legislature. That would be clearly subverting the democratic process which lies at the core of our Constitutional Scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution, but, by the laws made by the executive. The government cannot bypass the legislature and without enacting the provisions of the Ordinance into Act of legislature, re-promulgate the Ordinance as soon as the legislature is prorogued….It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adopting of any subterfuge. That would be clearly a fraud on the Constitution…..”
The Supreme Court, in Ram Jawaya Kapur vs State of Punjab (AIR 1955 SC 549), while dealing with an argument of violation of fundamental rights, observed that ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. It observes that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another and that Executive can, indeed, exercise the powers of departmental or subordinate legislation, when such powers are delegated to it by the Legislature. It cautioned that if, by the notifications and acts of the executive Government, the fundamental rights have been violated, then, such executive actions have to be termed as unconstitutional.
Citing Supreme Court’s verdicts, the High Court has underlined that the executive powers of the State are to fill up the gaps and not to act as an independent law making agency inasmuch as the function of enacting law, under our Constitution, lies with the Legislature and the Executive has to implement the policies/ laws made by the Legislature and if the State is permitted to take recourse to its executive powers to make laws, then, we would be governed by the laws not made by the Legislature, but by the Executive.
As held by the Supreme Court, in the case of Chief Settlement Commissioner v/s Om Prakash (AIR 1969 SC 33), the notion of inherent and autonomous law making power, in the executive administration, is a notion that must be emphatically rejected. This is the notion Congress-led Rajasthan Government is advancing. On the issue of “Lack of competence of Executive to implement Aadhaar scheme in absence of legislation or when legislation is being contemplated by the Parliament”, Ashok Gehlot-led Rajasthan government filed the affidavit on 5 December 2013 submitting, “The executive power is only fettered by the fact that it should not be inconsistent with any law made by the Parliament or which contravenes the fundamental rights of the resident. In the present matter, the Union of India had the legislative competence to enact law and therefore shall proprio vigora have requisite executive power.”
A reading of the notification of the Planning Commission to set up the UIDAI would make it evident that it does not reflect the source of executive power. Since it is found that the notification, which created the UIDAI, is not an act of delegated legislation, the notification cannot be deemed to be law. Even perusal of the available records makes it clear that the notification was neither produced before the President of India nor did it ever receive the assent of the President of India. Hence, strictly speaking, the notification, in question, cannot even be termed as the decision of the Government of India. But contract agreements have been signed with transnational surveillance, intelligence and identification companies by UIDAI in the name of the President of India although President’s assent has not been taken. These companies are admittedly keeping data of residents of India for seven years. Does it serve the interest of Indians?
The High Court observes that CBI did not file the original records in the Court. Why has CBI not filed the original records relating to creation of the CBI despite directions of the High Court? It is not clear as yet to whether the original records of the decision making process that led to the creation of UIDAI has been filed. Biometric database of UIDAI and NPR is linked to CBI database through NATGRID.
In India, one of the earliest documents that refer UIDAI is a 14-page long document titled ‘Strategic Vision: Unique Identification of Residents’ prepared by Wipro Ltd and submitted to the Processes Committee of the Planning Commission has finally emerged. This document envisaged the close linkage that the UIDAI would have with the electoral database. The way High Court sought all the records in the matter of creation of CBI, records related to creation of UIDAI, be it from the Union Cabinet, Prime Minister’s Council on UIDAI, E-GoM, GOM and Committee of Secretaries need to be put on record to enable the Supreme Court to examine their legality. For instance, has the details of what transpired between A Raja and Nilekani been placed before the court who had interacted in July 2009. On 4 December 2006, the Prime Minister had constituted an Empowered Group of Ministers (E-GoM) comprising of A Raja, the then Minister of Communications & Information Technology, the minister-in-charge responsible for UID and others.
Nilekani has said, “You see the thing is that we need something, which has the biometric way of identifying a person, so that you can uniquely identify a person, we need a system which allows us to eliminate the duplicates so that there is one number per person and we need something which has the infrastructure for online authentication and given all these three factors we felt it was best to build a new system as oppose to use data from an existing system. However, we will use all the agencies, which currently deal with these kinds of things as very valuable partners in what we are planning to do.” The use of electoral database mentioned in Wipro’s document remains on the agenda.
Can it be ruled out that Nilekani as a candidate for the 2014 parliamentary elections may use the database to his and his party’s advantage? Can UID numbers of Electronic Voting Machines (EVMs) and UID number of Indian voters be converged? Will such convergence save democracy or undermine it? After having achieved its political objectives by using CBI, a caged parrot of Congress, the party is unfolding UIDAI, the biometric identifier for turning citizens into subjects and suspects by blackmailing opposition parties. Which are the parties that are afraid of facing the people? Will the voters fail to recognize them in the upcoming elections?
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)