The Indian government, the PM and Nilekani have chosen to ignore the Parliamentary Committee's report on UID. They have continued to implement the UID scheme with greater vigour. Their disdain for the Committee report establishes their arbitrariness and they have given to the “Rule of Law”

I am not an advocate. Hence, I make no claim to knowledge or expertise in law or on legal questions. However, I do enjoy the study of law and legality. Therefore, in this article, I give my views on the legality of the government’s actions in implementing the UID (Unique Identification) scheme from my ‘layman’s’ perspective. I have led a coir suit against UID.

I believe in the “Rule of Law”. Let me elaborate it as I understand this phrase.

Rule of Law and UID/UIDAI

“Rule of Law” is a principle that governs modern civilised society. The principle behoves governments to act in accordance with the law and justice. It circumscribes governments from acting with any arbitrariness. No one, including the government itself or any of its officials, are exempt from the rule. They are all to abhor arbitrariness. Hence, no government functionary can act without a law or statute that permits his actions. (the word ‘his’ whenever used here, includes the feminine gender, is synonymous with the feminine form of the word and is used for the sake of convenience to represent both genders. It is not to be construed as having any bias.) The government did many acts, which are arguably outside the pale of law.

Firstly, the prime minister appointed Nandan Nilekani as head of Unique Identification Authority of India (UIDAI) and granted him the rank and status of a Cabinet minister. While it is the prerogative of a PM to appoint anyone of his choice to any position, this privilege or right, if you will, is not be a whimsical or arbitrary exercise. Not only must that be so, but the act (of appointment) be seen to be done with adequate reasonableness. Mr Nilekani is admittedly a successful business person in the IT field. There are many others equally successful, equally qualified and perhaps, even more qualified. Taking people from business into government through executive appointments is a peculiarly western, largely US, practice. It has not been successful. McNamara, appointed from being president of Ford Motors to the Kennedy cabinet, as Defence Secretary, led the disastrous Vietnam War. Cheney too as Bush's Defence Secretary during the Iraq war was anything but a success. Nilekani's appointment was non-transparent. It is not known how or why the PM chose him.

Granting him a Cabinet rank and status makes it worse. Appointment to the Cabinet is also the PM's singular privilege. This too is governed by Article 74 of the Constitution. Art 74 (1-A) stipulates that the number of ministers is not to exceed 15% of the total number of members of the Lok Sabha. Art 74 (5) says that a minister, who for a period of six consecutive months is not a member of either House of Parliament, shall at the expiration of the period cease to be a minister. Art 74 (6) provides for salaries and allowances of ministers to be governed by Parliament. Nowhere does the Constitution or any law provide for the grant of rank and status of a Cabinet minister to any individual. I am told that Nilekani does not draw any salary. We do not know whether he is paid any allowances of enjoys any pecuniary advantages of the rank or status. If so, he and the government are in violation of the Constitution.

Serious consequences follow when these Constitutional provisions are skirted. Art 74 (4) of the Constitution mandates that before a minister enters office the President shall administer the oath of office and secrecy to him. Nilekani has not taken the oath. As one with the rank and status of a Cabinet minister, it is reasonable to presume that he must have attended Cabinet meetings. Nothing prevents him from disclosing the proceedings of the meetings and he cannot be taken to task for such disclosure.

NIDAI Bill

The PM and his government are fully aware of the need for a law to authorize the implementation of the UID scheme. This is the reason why they brought a Bill before Parliament. The Bill, called “The National Identification Authority of India, (NIDAI) Bill 2010”, was placed before Parliament. It was referred to the Parliament Standing Committee on Finance. The Committee, in a near unanimous decision, rejected not just the Bill, but it also trashed the UID scheme.

The Committee was scathing in its criticism of the UID scheme, calling it directionless, lacking clarity of purpose and raising serious concerns regarding national security. The Committee's report is with the government since December 2011. The government, the PM and Nilekani have chosen to ignore the Parliament Committee’s report. They have continued to implement the UID scheme with greater vigour. Their disdain for the Committee establishes their arbitrariness and go by they have given to the “Rule of Law”.

Article 73 of the Constitution

The UIDAI justified its implementation of the UID scheme during its appearance before the Parliament Committee that it could continue to implement the UID scheme without a law. The Authority justified this stand by quoting the Attorney General's opinion that the power of the Executive is coextensive with that of Parliament under Art 73. The Committee said that it is not satisfied with the position UIDAI took to continue its implementation of the UID scheme. The proviso to the Article makes it clear that the power of the Executive does not extend to matters with respect to which the legislature of the state has the power to make laws. All purposes for which UID scheme is ostensibly implemented, such as public services, public health, local government, etc, are in the “State List” to the Seventh Schedule under Art 246 of the Constitution.

Hence, implementation of the UID scheme without a law violates the Constitution. The government and UIDAI have thus made a complete mockery of the “Rule of Law”. The scant regard that the government and UIDAI have for the “Rule of Law” is seen in the draft NIDAI Bill. The Bill legitimizes all acts that UIDAI has done before the law was passed. In other words, the government and UIDAI think that they could do anything and everything as they please and in the event their acts are questioned they could get away with it by brining a law to give legal sanctity to their acts. A principle of “Rule of Law” is that the government cannot give retrospective legitimacy to its acts.

Right to privacy

This is inherent in the right to life guaranteed under our Constitution. When the government proposes to gather personal and biometric data of the people it intrudes into their privacy. Such acts cannot be done without the sanction of law. Knowing this, the UIDAI and the government brought forward a law. Even after the Parliament Committee rejected it, they have continued to implement the UID scheme.

Jeopardising national security

One of the UIDAI's contractors is L1 ID Solutions (L1 for short). The company’s history, to put it mildly, does not inspire confidence. A lot of information trawled from the internet is in the annexure to the Monograph. The company was formed through the efforts of La Penta, which merged two companies, Viisage and Identix to set up L1. Viisage was under investigation by US Securities and Exchange Commission (SEC) for certain offenses. According to a website “AxXiom for Liberty”, Louis Freeh (former Director of FBI), Admiral Loy (former head of Transportation Security Agency) George Tenet (former Director of CIA), Frank Moss (former program manager for the State Department's E-Passport program) and many others who held key positions in the (US) federal government joined Viisage/L1 as members of the board of directors or as paid employees.

In a page on the website (AxXiom) titled, “The Revolving Door at Never Stops Turning—Look who's doing your Biometrics Now!”, the author, Mark Lerner, alleges, “It must be really sweet to sign off on contracts worth millions of dollars, tens of millions or more in fact and then turn right around and go on the payroll of the same company that you awarded the contracts to. Sure, Tenet, Freeh and the others may not have had to sign the actual contracts but certainly they are responsible for knowing who the contracts went to when they were in charge of their respective agencies and departments." The website also alleges that “Viisage is the same company that had a state driver’s license contract voided by the Georgia State Supreme Court for misrepresentation.”

It is interesting to note that the UIDAI chief also came into government through a revolving door from business. This is the fashion today in some democracies that follow the US pattern.

L1 is now taken over by another company, Safran, headquartered in France; but L1 still has operations in the US, with intelligence agencies and government departments. Is it prudent or even sensible to contract with such a company for biometric services for the entire population of this country? When Huawei, a Chinese company obtained a contract to supply modems to BSNL, there was a hue and cry in media, and by activists and politicians, raising security concerns. When the Indian Institute of Science (IISc) signed an agreement with Huawei for collaboration in research, again there were loud protests and IISc had to rescind the agreement. Why is everyone silent on the deal between UIDAI and L1? The Parliament Standing Committee on Finance, which examined the National Identification Authority of India Bill 2010, rejected the Bill as well as the UID scheme, they also expressed serious concerns about the effect UID would have on national security. Did they have in mind the contracts with companies like L1?

Law-makers and law-breakers

When the government and their collaborators wilfully ignore the law, they would be guilty of breaking the law. There is no excuse for breaking the law even for good purposes or with good intentions. Skirting of the law by interpretations of one’s choice, could never be condoned or ignored. When the acts of the law-maker also have elements of jeopardising national security, as is the case here—through contracting with companies of questionable backgrounds—when information relating to the contracts are denied to the people, the acts could be construed as brazen. It is time that all right-thinking people rise up to question such acts. This is exactly what some of us have done. We have approached the courts. We would agitate the matter through the judicial process, as well as on the political and social planes until success is achieved and diabolical machinations of those who indulge in such activities are exposed and halted. In this we, take inspiration from Roger Clarke who campaigned for twenty years to scrap the Australian ID card. Two of his writings from his website are in the annexure. One article gives the general issues relating to ID cards and the other on the specifics of the Australia ID card. He is our model to follow.

Here is the UN review on Rule of Law

http://www.un.org/en/ruleofaw/index.shtml

The principle of the rule of law embedded in the Charter of the United Nations encompasses elements relevant to the conduct of State-to-State relations. The main United Nations organs, including the General Assembly and the Security Council, have essential roles in this regard, which are derived from and require action in accordance with the provisions of the Charter.

“For the United Nations, the rule of law refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”

(S/2004/616) (Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies)

(Col (Retd.) Mathew Thomas is a former defence services officer and missile scientist turned civic activist campaigning against state database control of the people.)
 

(This is the concluding part of a nine-part series)
 

You may also want to read the earlier posts of this 9-part series of articles on how UID is anti-people.

Is UID anti-people?–Part 8: UID’s security is flawed
Is UID anti-people?–Part7: Incarnation of new geo-strategic tools, NCTC, NATGRID, UID, RFID and NPR
Is UID anti-people?–Part 6: The foundation for incessant intrusion
Is UID anti-people?–Part 5: Why UID is impractical and flawed “Ab initio”
Is UID anti-people?-Part 4: Does the implementation smack of corruption and negligence?
Is UID anti-people?-Part 3: Tall claims and tomfoolery of UID
Is UID anti-people? –Part 2: A bundle of contradictions, misconceptions & mirages
Is UID anti-people? The database state –Part1