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?
You may also want to read…
Why biometric identification of citizens must be resisted? Part I
Biometric identification is modern day enslavement -Part II
Biometric profiling, including DNA, is dehumanising -Part III
Marketing and advertising blitzkrieg of biometric techies and supporters -Part IV
History of technologies reveals it is their owners who are true beneficiaries -Part V
UID's promise of service delivery to poor hides IT, biometrics industry profits –Part VI
Technologies and technology companies are beyond regulation? -Part VII
Surveillance through biometrics-based Aadhaar –Part VIII
Narendra Modi biometrically profiled. What about Congress leaders?-Part IX
Aadhaar: Why opposition ruled states are playing partner for biometric UID? -Part X
Is Nandan Nilekani acting as an agent of non-state actors? –Part XI
Aadhaar and UPA govt's obsession for private sector benefits–Part XII
CIA-funded MongoDB partners with UIDAI to handle Aadhaar data –Part XIII
Are Indians being used as guinea pigs of biometric technology companies? -Part XIV
Aadhaar: Is the biometric data of human body immortal and ageless? Part XV
Aadhaar: The propaganda of transnational vested interests –Part XVI
Aadhaar: Pakistan handed over, India giving database on a platter– Part XVII
Engineered row in US-India relations, an attention diversion tactics of big brothers?—Part XVIII
Aadhaar: UIDAI and the ‘fifth column’ of Napoleon—Part XIX
Aadhaar: Turning citizens into subjects through social control technology companies –PartXX
Why Kejriwal govt in Delhi should abandon biometric Aadhaar?—Part XXI
Aadhaar for LPG: Oil companies, Ministry of Petroleum & UIDAI disobeying Supreme Court order–Part XXII
Why Vasundhara Raje should immediately withdraw circulars making Aadhaar mandatory -Part XXIII
How Congress has been proven wrong on biometric Aadhaar and NPR -Part XXIV
Aadhaar, NPR, UN resolution and deafening silence of political parties –Part XXV
(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)