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Directing the UIDAI not to share personal info of Aadhaar holder with any agency, the Supreme Court asked the Indian government to withdraw all orders making Aadhaar mandatory for availing services
In a path breaking decision, the Supreme Court on Monday asked the Indian government to withdraw all orders making Aadhaar or the unique identification (UID) number mandatory for residents. The apex court also asked Unique Identification Authority of India (UIDAI), not to share any information, including biometrics that it has collected under the Aadhaar project through registrars, with any government agency without the permission of the person.
The Supreme Court pronounced this decision on a public interest litigation (PIL) filed by retired Karnataka High Court judge Justice KS Puttaswamy and Maj Gen (retd) SG Vombatkere, who retired as Additional Director General, Discipline and Vigilance in Army HQ, challenging the Constitutional validity of Aadhaar. In addition, the UIDAI had also challenge a decision of Goa Bench of Bombay High Court asking it to share its biometric data to solve a criminal case. Both the cases were heard before the three-judge Bench.
Shyam Divan, the counsel for Maj Gen (retd) Vombatkere, told the Court, that there is no statute to back the (Aadhaar) project and even if there were one, the statute would be violative of Fundamental Rights under Articles 14 (right to equality) and 21 (right to life and liberty) of the Constitution as the project enables surveillance of individuals and impinges upon right to human dignity. “The action under the impugned project of collecting personal biometric information without statutory backing is ultra vires even where an individual voluntarily agrees to part with biometric information," he said.
Adv Divan had contended that “…the (Aadhaar) project is also ultra vires because there is no statutory guidance (a) on who can collect biometric information; (b) on how the information is to be collected; (c) on how the biometric information is to be stored; (d) on how throughout the chain beginning with the acquisition of biometric data to its storage and usage, this data is to be protected; (e) on who can use the data; (f) on when the data can be used.”
According to Gopal Krishna of Citizens Forum for Civil Liberties (CFCL), the SC order paves way for a verdict against the unscientific exercise of indiscriminate biometric data collection by Planning Commission's UIDAI, Home Ministry's Registrar General of India for Aadhaar number and National Population Register (NPR) and other government and private agencies.
The Goa case
Earlier, a Magistrates Court in Goa had asked UIDAI to share with the Central Bureau of Investigation (CBI), biometric data of all residents enrolled in Aadhaar scheme from the state, to help the agency solve the gang rape of a seven year old girl in Vasco.
UIDAI challenged the Court's decision before the Bombay HC. The Goa Bench, however directed the director general of the Central Forensic Science Laboratory to examine the technological capabilities of the UIDAI database. The HC also observed that UIDAI had agreed to test the competence of its database in comparing the chance fingerprints with its biometric record.
Aggrieved by the HC decision, UIDAI had approached the Supreme Court.
According to a report from the Indian Express, even as the UIDAI describes its biometric technology as one of the best in the world, it pointed out that there was a 0.057% occurrence of false identification. "Therefore, the implications of the False Positive Identification Rate of 0.057% when applied in the UIDAI database of 60 crore residents, will imply false matches of lakh of residents," the report says quoting the petition filed by UIDAI.
The biometric number is an identifier, which is used to "authenticate" and verify whether or not the person is what the person claims to be. A stunning aspect of how the UIDAI was sought to be implemented without the nod of parliament is the high level of ignorance about who can get an Aadhaar and implications of biometric based identification. On 31 January 2013, it came to light that the members of Union Cabinet were unaware whether it is a number or a card. Instead of facing the issue upfront, a Group of Ministers (GoM) was set up to resolve it but no one knows whether it has been resolved.
"Biometric data itself has scientifically been proven to be 'inherently fallible' especially because of constant decay of biological material in human body. Global experience demonstrates that the trust in junk science of biometrics is misplaced. The stolen biometric passport of a passenger in the missing Malaysian airliner has exposed its claims for good. We demand that the opposition parties should promise that new government after the Lok Sabha elections will destroy the illegal and illegitimate database of biometric features as has been done in UK and other countries," Gopal Krishna added.
Notably, the Strategy Overview document of the UIDAI said that "enrolment will not be mandated" but added, "This will not, however, preclude governments or registrars from mandating enrolment." It must be noted that Nandan Nilekani, former chief of UIDAI and now a Congress candidate from South Bengaluru constituency, headed dozens of committees whose recommendations made Aadhaar mandatory.
Tricked by the marketing blitzkrieg, some political parties were wary of taking a position that would appear anti-poor. They did not realise that what may be the real beneficiary of this biometric identification is UIDAI, which wants to meet its target of enrolling 60 crore Indians by 2014.
Earlier, in November 2013, Adv Divan, the counsel for Maj Gen (retd) Vombatkere, in the Supreme Court stated “The Aadhaar project was ultra vires as it did not have a statutory backing. Moreover, no statutory guidance exists on crucial questions such as—who can collect biometric information, how it is to be collected and stored, protection of collected data, who can use the data and when it must be used.”
He pointed out to a two-member bench of Justices BS Chauhan and SA Bobde, how UIDAI signed memorandum of understanding (MoU) with States which had no legal sanctity. He said, “State appoints registrars, who could even be a private person, who engaged private companies to collect biometric data. There is also the fear that the private party which collects the data then stores it in a personal laptop, which does not belong to the government.”
He also told the apex court about how UID changes the relationship between the state and the citizen. “Convicted criminals relinquish some privacy rights. They have their fingerprints taken for record. Here the government is treating all people as criminals,” Adv Divan had said.
Last year in September, the Supreme Court had ruled that Aadhaar or the UID number, the United Progressive Alliance (UPA)'s ambitious scheme, is not mandatory to avail essential services from the government. While hearing a public interest litigation (PIL) filed by retired Karnataka High Court judge Justice KS Puttaswamy and advocate Parvesh Khanna questioning the legal sanctity of Aadhaar, the apex court said, "The centre and state governments must not insist on Aadhaar from citizens before providing them essential services."
A Bench of Justices BS Chauhan and SA Bobde also directed central and the state governments not to issue the Aadhaar to illegal immigrants.
In its reply, the Centre had earlier claimed that for an Aadhaar, consent of an individual was indispensable and hence it was a voluntary project, with an objective to promote inclusion and benefits of the marginalised sections of the society that has no formal identity proof.
In July, replying to an un-starred question in the Lok Sabha on 8 May 2013, Rajiv Shukla, minister of state for parliamentary affairs and planning said, "Aadhaar card is not mandatory to avail subsidized facilities being offered by the Government like LPG cylinders, admission in private aided schools, opening a savings account etc."
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Read more articles from a series on Aadhaar by Gopal Krishna
It is absolutely necessary for the I-T department to come out with clear guidelines as to whether this LPG subsidy amount deposited in the bank accounts of some consumers is exempted from income tax. People who received LPG subsidy in their Aadhaar linked bank account are confused
Much water has flowed under the bridges since the controversial Aadhaar project was launched and reams of paper would have been consumed writing about the pros and cons of this project for the last nearly five years. As per the statistics placed before the Parliament, the government has issued 57.62 crore Aadhaar numbers till 31 January 2014. This means nearly 48% of the country’s population has been issued with this identity number, which has several ramifications on people of this country as unearthed by a series of articles published in Moneylife so far.
As an offshoot of this project, the union government has been aggressively pursuing for crediting the subsidy due on the liquefied petroleum gas (LPG) to consumers directly through their bank accounts linked with Aadhaar with the stated objective of curbing leakages and preventing black marketing of cylinders.
Till the end of last year, 66 million consumers in 184 high Aadhaar coverage districts, in 18 states, have been covered under the scheme. Till 31 December 2013 about 40 million cash transfers amounting to Rs2,000 crore to consumers’ bank accounts have taken place since the launch of the scheme in June 2013. And from 1 January 2014, it was proposed to cover gas consumers in Delhi and Mumbai who will get cash subsidy through their bank accounts, as the direct benefit transfer for LPGs (DBTL) scheme would be extended to 105 more districts. When this roll out is completed almost half the country covering 289 districts would get covered by this scheme.
Then on 30 January 2014, bowing to political pressure and hue and cry from common citizens, the Indian government put on hold its scheme to transfer subsidy money into bank accounts of consumers through Aadhaar. Explaining the reasons behind the move to put on hold a scheme that was dubbed game-changer, oil minister M Veerappa Moily said there were complaints about the implementation of the scheme, and a committee has been formed to look into them.
At present, in Delhi, the price of non-subsidised cooking gas is Rs1,080.50 and for subsidised LPG cylinder, it is Rs414.
How does the direct benefit transfer scheme for LPGs work?
As per the direct benefit transfer for LPG (DBTL), consumer will get her cylinder at full market price and the difference between subsidised price and full market price i.e. the subsidy will be refunded to her by crediting directly into her bank account. It was initially announced that this subsidy is restricted to only six cylinders in a year, where after, the consumer will have to pay full market price for every cylinder supplied. This cap was increased to nine cylinders and later to 12 cylinders per year for every consumer.
To start with, this scheme was made available only to those who have obtained an Aadhaar number and submitted these details both to her bank and to the gas supplier/dealer, for linking the Aadhaar number to the DBTL scheme. The consumers in that district where the scheme was introduced were given three months’ time to enroll themselves into this scheme, failing to which they would be denied the benefit of subsidy and they will have to pay market price for all the cylinders required by them, as they will be ineligible for the subsidy from the government.
Subsequently, under the Supreme Court order, the government announced that it is not mandatory to have Aadhaar number to be eligible for LPG subsidy and those who do not have Aadhaar number will continue to get the cylinders at the subsidised rates as before. There was however, considerable confusion as many banks and oil companies were not prepared with the logistics to credit the amount to beneficiaries’ accounts, and complaints started pouring in from the consumers, who did not know how to go about it if the subsidy was not credited to their account promptly. Due to the hue and cry from a large number of consumers, the government on 30 January 2014 decided to put on hold its scheme to transfer subsidy money into bank accounts of consumers through Aadhaar.
Read: Following articles in Moneylife:
As per the latest report dated 7 March, 2014 in the Indian Express, the Ministry of Oil and Petroleum has scrapped the ambitious Direct Benefit Transfer system for LPG subsidy with effect from 10 March 2014. A communication regarding this has been reportedly sent by the ministry to oil marketing companies (OMCs) and gas agencies a few days ago. Consumers will now get their twelve cylinders till the end of March 2014, and get the benefit of 12 subsidised cylinders in the next financial year from April onwards.
Though there is still no clarity as to whether the DBTL scheme will be revived at all, what is agitating the minds of many of the consumers, who have received the subsidy in their bank accounts during this financial year, is whether the amount so credited by the OMCs to their account would be considered as ‘income’ for the purpose of payment of income tax on such receipts. This is because, a number of consumers, who have received the subsidy through their bank account, are tax payers, who will have to take a view on this matter, before filing their return of income for the current year. This confusion arose because of an article that appeared in Economic Times on 12 December 2013 under the headline “Direct LPG subsidy payouts may be taxed: Experts”. The media story in short reads as under:
“The money that the government transfers directly to consumers' bank accounts as LPG subsidy may well be considered as an income and taxed, say tax experts. There are no guidelines currently on taxing this type of subsidy payouts, and the income tax department may take a view on whether or not to claim a part of it. "
This subsidy is a new development which will accrue in the bank accounts of individuals starting from this year. There is no circular on whether this income should be taxed or not," a senior income tax department official is reported to have said. “
The subsidy that gets deposited in the bank account is likely to be treated as an income and be taxed accordingly although the amount would be small, said a partner at KPMG,” as per the media report.
One of the affected consumers wrote to local office of Indian Oil Corporation seeking clarification on this matter, and he received a reply that states, “This subsidy is paid by government of India; hence, we will not be able to satisfy your query, you may ask any tax consultant.”
Will the Income Tax department clarify this matter before it is too late?
It is preposterous to treat LPG subsidy as income, as it is contrary to reason. It is only a refund of the excess amount paid by the consumer to the gas dealer, which the oil company refunds to the beneficiary to comply with the government order to sell the LPG cylinder at the stipulated price to the users. It is therefore, impetuous for tax authorities to take a view that this amount is taxable at the hands of beneficiaries.
Besides, now that linking of Aadhaar is not mandatory for receiving the gas cylinders at the subsidised rates, and the whole scheme of direct benefit transfer has been scrapped for the time being, any decision to tax the subsidy received through bank accounts during this financial year would tantamount to penalising those who faithfully complied with the government instructions, leaving all those who have abstained from doing so unaffected by this decision.
The onus, therefore, is on the Central Board of Direct Taxes (CBDT) to clarify this matter well in advance of the date of filing the tax returns for the current financial year, to enable the tax payers to file their returns correctly. This, however, does not apply to those not coming under the tax bracket, and who are not required to file their tax returns. But since this subsidy is given to a large number of tax payers, it is absolutely necessary for the tax department of the government to come out with clear guidelines as to whether this subsidy amount is exempted from income tax, so that this matter is settled once and for all and all the tax assessing officers take a uniform view through out the country.
(The author is banking analyst and he writes for Moneylife under the pen name ‘Gurpur’)
BJP seems to have accepted Aadhaar as irreversible and as a face saving stance, it will have citizens believe that it will not accept the UID number but will gladly do so if it is mentioned as national population register or NPR
In the animal kingdom, the rule is, eat or be eaten; in the human kingdom, define or be defined.
-Thomas Szasz in The Second Sin, 1974
“Through a curious transposition peculiar to our times, it is innocence that is called upon to justify itself.”
When Yashwant Sinha headed Parliamentary Standing Committee on Finance (PSCF) inconsistently and insincerely recommended handing over of the data collected by Planning Commission’s Unique Identification Authority of India (UIDAI) for biometric number branded as Aadhaar to Home Ministry’s Registrar General of India (RGI) for biometric National Population Register (NPR), it appeared inadvertent and a result of lack of imagination.
Now Sinha’s support for it reveals that it was by a questionable design, which is inconsistent and insincere because the same parliamentary panel had categorically raised question about the absence of legal mandate for biometric data collection. The parliamentary committee’s report observes, “The collection of biometric information and its linkage with personal information of individuals without amendment to the Citizenship Act, 1955 as well as the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, appears to be beyond the scope of subordinate legislation, which needs to be examined in detail by Parliament.”
Notably, the Committee’s report revealed that “Bharatiya - Automated Finger Print Identification System (AFSI), was launched in January 2009, being funded by the Department of Information Technology, Ministry of Communications and Information Technology, for collection of biometric information of the people of the country.” But admittedly the same is not being used by UIDAI because according to the Government, “The quality, nature and manner of collection of biometric data by other biometric projects may not be of the nature that can be used for the purpose of the Aadhaar scheme and hence it may not be possible to use the fingerprints captured under the Bhartiya-AFSI project.” It is bizarre as why the Parliamentary Committee did not question AFSI program of Ministry of Communications and Information Technology headed by A Raja. How can this program be allowed to continue without “amendment to the Citizenship Act, 1955”?
Despite such observation of the Parliamentary Committee that Sinha heads, his support for NPR brings to mind his failure to defend himself during the debate in the Lok Sabha on Black Money, when he faced factual attack on his person and integrity in his role as Union Finance Minister from Manish Tewari. His questionable defence exposed him to the core. Tewari’s name calling exposed Congress as well. The link between black money and three sectors—real estate, the gold-bullion and the Mauritius round tripping of black money route has been underlined. Tewari contended, “Interesting thing about the Mauritius route that there was a Circular called 789, issued on 13 April 2000, by the National Democratic Alliance (NDA) government-led by Bharatiya Janata Party (BJP). It prevented the assessing officers from finding out whether a person was a bona fide resident of Mauritius or not. This exempted anyone who claim to be Mauritius resident from tax.”
Tewari added, “I can give you far more examples to show the manner in which the NDA, during those six years, actually diluted the provisions of the law help, to generate black money.” Responding to it Sinha, the then finance minister said, “The Double Taxation Avoidance Agreement (DTAA) with Mauritius was signed in 1982 when Indira Gandhi was the Prime Minister and foreign direct investment (FDI) and other investments were opened in 1993 when Manmohan Singh was the finance minister. We did nothing except continuing the policy. Sinha added, “Facts can be twisted by ignoring facts and that is what Manish Tewari has done.”
On Hasan Ali issue, Tewari submitted that between 1997 and 2006, money in Ali's bank account rose to $8 billion. “Out of those nine years, who was ruling for six years? The NDA. Was it not its responsibility to find out how money was siphoned off and went abroad?” he questioned. These exchanges of allegations and counter allegations, which is now part of parliamentary record has revealed beyond any reasonable doubt that both BJP-led NDA and Congress-led United Progressive Alliance (UPA) are neck deep in patronising generation of black money.
Now Sinha’s dubious advocacy for NPR exposes him once again. His advocacy of NPR is an exercise in sophistry akin to his defence of his role in issuing circulars that facilitated and nourished black money. Similar stances are being taken in the case of illegitimate and illegal biometric data collection. Sinha and the Parliamentary Committee’s silence on illegality of AFSI program undertaken during A Raja’s tenure appear to be either an act of grave omission or complicity. Sinha’s role in promotion of corporate funding of political parties to the tune of 7.5% of company’s annual profit also merits rigorous attention. The complicit silence of non-NDA and non-UPA parties is quite inexcusable as well.
This Parliamentary Committee had recommended, “The data already collected by the UIDAI may be transferred to the National Population Register (NPR), if the Government so chooses.” The Committee’s report itself recorded, “Registrar General of India was engaged in the creation of the National Population Register (NPR) and issuance of Multi-purpose National Identity Cards to citizens of India, it was decided with the approval of the Prime Minister, to constitute an Empowered Group of Ministers (EGoM) to collate the two schemes – the NPR under the Citizenship Act, 1955 and the UID scheme. The EGoM was also empowered to look into the methodology and specific milestones for early and effective completion of the scheme and take a final view on these. The EGoM was constituted on 4 December, 2006.”
When convergence of biometric NPR and Aadhaar/UID scheme was part of the conceptual design, it had left not even an iota of doubt that both the schemes were in fact one.
Besides the Ministry of Planning in their written reply stated, “UIDAI is adopting a multiple registrar approach and the Registrar General of India (RGI) will be one of the Registrars of the UIDAI. To synergize the two exercises, an Inter-Ministerial Coordination Committee has been set up to minimize duplication. The UIDAI is making all efforts to synergise with National Population Register (NPR) exercise.” This recorded reply illustrates that BJP’s proposal for NPR and Congress’s Aadhaar is simply the same rose with different names.
A seasoned politician and an ex-bureaucrat like Sinha cannot be so naïve as to fail to understand that Aadhaar and NPR are one and the same. This feigned ignorance seems to demonstrate the collusion between BJP and Congress on biometrically profiling Indians. Admittedly, biometric data is a property. It is not surprising that property dealers of all shapes and shades are visible on the horizon.
Let us revisit the terms of reference of UIDAI. The entire political class and citizenry was taken for a ride regarding a so called turf war between the Ministry of Home Affairs (MHA) and UIDAI, which media was made to understand that got resolved by diving the Indian population in two parts of 60 crore for coverage under Aadhaar and the rest under National Population Register or NPR, which also generates Aadhaar number. The fact is the terms of reference of the UIDAI mandated it "take necessary steps to ensure collation of National Population Register (NPR) with UID (as per approved strategy)", to "identify new partner/user agencies", to "issue necessary instructions to agencies that undertake creation of databases… (to) enable collation and correlation with UID and its partner databases" and UIDAI “shall own and operate the database". The executive notification dated 28 January 2009 that set up UIDAI mentions this. The entire exercise has been staged to hoodwink unsuspecting Indians.
If there was still any doubt about the oneness of NPR and Aadhaar, the report of Press Trust of India of 30 January 2014 revealed the proposal of the Planning Commission to allow UIDAI to start enrolments in areas other than 18 states and Union Territories allocated to it. The Commission's proposal is based on the view that this is required to speed up collection of biometrics details of residents and for issuing them Aadhaar numbers as well as a National Multi-purpose Identity Cards (NMIC) based on NPR. It was reported, "The Commission discussed the proposal with Registrar General of India (RGI) under the Ministry of Home Affairs. They have agreed that UIDAI can be allowed to enroll in some states where they are collecting biometrics details of resident, to speed up enrolments."
In such a situation Sinha’s proposal of replacing biometric Aadhaar with biometric NPR is reminiscent of Danish King Cnut who commanded the crest and trough of tidal wave to obey him and lived in a make believe world thinking that the waves become go up or down in order to obey his command! It indicates that BJP has accepted Aadhaar as irreversible and as a face saving stance it will have citizens believe that it will not accept Aadhaar but will gladly do so if it is mentioned as NPR.
It may be noted that the states and union territories where RGI is enrolling residents and collecting their biometrics details under NPR are Arunachal Pradesh, Assam, Bihar, Chhattisgarh, Jammu & Kashmir, Meghalaya, Mizoram, Odisha, Tamil Nadu, Uttar Pradesh, Uttarakhand and West Bengal, Andaman and Nicobar Islands, Dadar and Nagar Haveli and Lakshadweep. Notably, RGI is also enrolling residents in Udupi, Gadag, Uttara Kannada, Haveri, Davangere, Bangalore rural, Chikkabalapur and Kodagu districts of Karnataka. So far 14 crore Indians have been enrolled under NPR.
UIDAI has been enrolling residents in Andhra Pradesh, Goa, Chandigarh, Daman and Diu, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Delhi, Puducherry, Punjab, Rajasthan, Sikkim and Tripura. It claims that so far it has enrolled 56 crore Indians.
Both NPR and Aadhaar are online databases by design.
James Ball, Julian Borger and Glenn Greenwald reported for the Guardian referring to revelations of earth wide surveillance by Edward Snowden have stated that the leaked files show that the US’ National Security Agency and its UK counterpart Government Communication Headquarters (GCHQ) have broadly compromised the guarantees that Internet companies have given consumers to reassure them that their communications, online banking and medical records would be indecipherable to criminals or governments.
According to media reports, the MHA accused telecom operator Vodafone of secretly sharing subscriber data with a British GHCQ, a charge denied by the company. According to documents of the Internal Security Division of the Home Ministry, Vodafone is alleged to have given the GCHQ, "secret unlimited access to their network of undersea cables, which carry much of world's phone calls and Internet traffic".
"GCHQ's mass tapping operations has been built up over the past five years by attaching intercept probes to the transatlantic cables where they land on British shores," the home ministry documents claimed. "Intercept partners are paid for logistical assistance," it added.
The drive to mastery over men is not merely a by-product of a faulty political economy but also of a world view, which believes in the absolute superiority. It has become more and more apparent that genocides, Eco disasters and ethnocide are but the underside of corrupt sciences and psychopathic technologies wedded to new secular hierarchies, which have reduced major civilisation to the status of a set of empty rituals, observes Ashish Nandy in his book The Intimate Enemy: Loss and Recovery of Self under Colonialism. The lessons from database based genocides are part of recent world history and should not be forgotten in the face of a large section of complicit and partisan corporate media.
Now that it has been established that surveillance agencies of the US, UK and their allies have dismantled firewalls created for online privacy and encrypted Internet communications, the alliance of political parties who get the electoral verdict post 2014 parliamentary elections must promise in writing in their manifestoes their resolve to dismantle the illegitimate biometric database to undo the damage to done to Indians. The political parties must be made to promise creation of a mandatory decentralised, secure and offline communication structure. The new regime will have to unequivocally reject the proposal of Aadhaar based GST, GST Network and the intricately linked solutions architecture of World Bank Group, NATO, Interpol and WTO.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)