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No beating about the bush.
The earnestness with which the Modi government has guaranteed revenue flow for transnational automatic biometric data based identification companies from US and France is quite intriguing. Yashwant Sinha, SS Ahluwalia and Ananth Kumar, the vocal critics of Aadhaar from BJP appear to be tongue-tied on the issue
The Central Information Commission (CIC)’s interim order dated 26 July 2013 had asked Unique Identification Authority of India (UIDAI) to provide “written submissions, justifying non-disclosure of the information sought by the appellant under the provisions of Section 8 (1) (d) of the Right to Information (RTI) Act”. The UIDAI failed to do so on 10 September 2013, and instead agreed to share the copy of the contract agreements. It is manifestly insincere on the part of UIDAI to unsettle what was already settled matter as per its own letter of 10 September 2013 and the final order of CIC dated 21 October 2013.
The irony of UIDAI’s reasoning becomes quite stark when one pays heed to Clause 15.1 of the contract agreement with Accenture Services Pvt Ltd. It reads: "By virtue of this Contract, Accenture Services Pvt Ltd/ Team of Accenture Services Pvt Ltd may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable." The purchaser has been defined and stated as the President of India through UIDAI.
The clause 15.3 reads: "The Data shall be retained by Accenture Services Pvt Ltd not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future."
The contract agreement with L1 Identity Solutions Operating Company at clause 15.1 also reads: "By virtue of this Contract, L1 Identity Solutions Operating Company/ Team of L1 Identity Solutions Operating Company may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable."
The clause 15.3 of this agreement also reads: "The Data shall be retained by L1 Identity Solutions Operating Company not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future." The purchaser is President of India through UIDAI.
In his record of the hearing dated 3 September 2014, Sharat Sabharwal, Information Commissioner, CIC wrote: “Having considered the records and submissions by both the parties, the Registry is directed to examine the matter concerning compliance with the order dated 21 October 2013 within two weeks of the issuance of this order.”
The matter pertained to UIDAI’s contracts with two foreign companies L1 and Accenture. Notably, L1 was a Delaware, US-based Corporation when the contract was signed. L-1 has since been bought over by French corporate conglomerate, Safran Group after the Committee on Foreign Investment in the United States (CFIUS) was convinced that there are no unresolved national security concerns with respect to the transaction. L-1 Identity Solutions announced agreement to be acquired by Safran on 20 September 2010.
Sagem Morpho, a unit of Safran already had a contract with UIDAI. As to Accenture Services Pvt Ltd, it is a "Biometric Solution Provider", a subsidiary of Dublin, Ireland based Accenture plc, a US company. Till 1 January 2001 it was known as Andersen Consulting. Both the contract agreements have been signed in the name of the President of India. While L1 was a US corporation, its Indian subsidiary had a registered office at 2, Frontline Grandeur, 14, Walton Road, Bangalore. Now that it has become a French company, it is not clear whether its Bangalore address is intact or not.
Vijay Bhalla, Deputy Registrar, CIC wrote a letter on behalf of Sharat Sabharwal, Information Commissioner, CIC to Central Public Information Officer (CPIO) & Deputy Director, UIDAI wrote, “As regards the remaining information concerning Technical Bid and Commercial Bid, it was observed that your decision (conveyed to the Appellant Mathew Thomas by letter No. F-12013/096/2012/RTI-UIDAI dated 20.12.2013) to deny this information to the Appellant after following the third party information procedure laid down in Section 11 (1) of the RTI Act was in conformity with the decision of High Court of Delhi in BSNL vs Chander Sekar; LPA N. 900/2010; date of decision 23 March 2012; Commission’s Full Bench decision dated 20 May 2013 in Kuljit Singh and Anr. vs. PFCL; and Commission’s decision dated 1 September 2014 in Ajay Chadha vs Charak Palika Hospital, NDMC; date of decision 1 September 2014; Appeal No. CIC/DS/A/2013/001664-YA and CC/DS/A/2013/001684-YA. Moreover, the Appellant has not established any larger public interest warranting the disclosure of information in question. Therefore, there shall be no disclosure with regard to the information concerning Technical Bid and, Commercial Bid as it falls under the exemption category of Section 8 (1) (d) of the RTI Act.”
Under the Right to Information (RTI) Act, the Public Information Officer (PIO) cannot deny information citing commercial confidence for agreements between a public authority and private party. While giving its judgement in this regard, the CIC said “The claim of 'commercial confidence' in denying access to agreements between private parties and the masters of the public authorities—citizens—runs counter to the principles of the RTI. “Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of ‘We the people’. Hence, if any citizen wants to know the contents of such an agreement he is in the position of a principal asking his agent to disclose to him the terms of the agreement entered into by the agent on behalf of the principal. No agent can refuse to disclose any such information to his principal,” the CIC said in its order dated 27 July 2009.
The Commission was of the view that “The objectives of the RTI Act would be defeated if public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the government’, and therefore these must be kept away from the Public. In fact, public feels that quite often the contrary is the case,” the Commission noted. The CIC observed, “Any so called imaginary moral or reciprocal obligation cannot be permitted to subvert a solemn constitutional and legal obligation” and directed the PIO to provide copy of the agreement.
Now the issue is should UIDAI comply with the letter of CIC’s Deputy Registrar or the order of Sushma Singh, Information Commissioner at the CIC? The latter gave her final order saying, “In the view of the above, the Commission hereby directs the respondent (UIDAI) to provide a copy of the two contracts to the appellant within two weeks from the receipt of the order.” It is quite clear that the letter of Deputy Registrar, CIC is pandering to the defeated argument of UIDAI but come what may this letter cannot override the final order of Information Commissioner, CIC. The Deputy Registrar supposedly acting on behalf Sharat Sabharwal, the Information Commissioner, has failed to consider public interest and is indulgent towards UIDAI’s reluctance to share complete information in violation of CIC’s order.
The earnestness with which the Narendra Modi government has guaranteed revenue flow for transnational automatic biometric data based identification companies from US and France is quite intriguing. Likes of Yashwant Sinha, SS Ahluwalia and Ananth Kumar, the vocal critics of Aadhaar from BJP appear to have become tongue tied on the issue.
The Supreme Court’s inertia in the face of violation of its order in the Aadhaar matter is equally baffling. The most astounding is the deafening and complicit silence of the non-Congress opposition parties.
Incidentally, states of Uttar Pradesh and Bihar, which are ruled by vocal opposition parties tops the priority of the new government for Aadhaar enrolment but their leaders’ political and legal imagination is yet to come to terms with the ramifications of UIDAI’s Centralized Identities Data Repository (CIDR) and Home Ministry’s National Population Register (NPR), which is one and the same. It appears that India has become a Parliamentary democracy without opposition.
Like the previous regime, this regime too has failed to take the Parliament, States and citizens into confidence on the justification for storage of personal sensitive information of residents of India by foreign companies in US and France for eternity. It is a case of mankind’s biggest data robbery in broad day light.
It will be interesting to see if there is any legislator either from the ruling party or from the opposition party who can defend the indefensible act of transferring the personal data of India’s civilian and defence population including future legislators, judges, Prime Ministers and Presidents besides intelligence officials to these countries with impunity in parliament’s winter session which commences from 24th November.
Read first part here
(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
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After refusing to share contract documents for years, the UIDAI finally provided it under the RTI Act, with important pages missing
In the matter of Right to Information (RTI) application, on 14 October 2014, Vijay Bhalla, Deputy Registrar, Central Information Commission (CIC) wrote a letter on behalf of Sharat Sabharwal, Information Commissioner, CIC to Central Public Information Officer (CPIO) & Deputy Director, UIDAI. The letter states, “I am directed to convey that you should, within two weeks of the receipt of this order, provide to the Appellant the limited information i.e. financial quotation/ price by the third party firms in the subject tender as disclosure of it would not inflict any harm to the competitive position of third party firms at this stage when the contracts have already expired.”
The RTI application was filed seeking a complete copy of the contract UIDAI signed with L1 Identity Solutions for Biometric Technology, on 24 August 2010 and a copy of the contract UIDAI signed with Accenture for Biometric Technology, on 1 September 2010.
Responding to this letter, Subrata Das, the CPIO & Deputy Director, UIDAI wrote to the RTI Appellant on 22 October 2014 in compliance with the CIC decision on the second Appeal hearing dated 30 September 2014.
UIDAI’s letter reads, “The requisite letter in compliance with the CIC decision is as under:
(i) financial quotation/ price quoted by Accenture Services Pvt Ltd is Rs2.75 (inclusive of taxes) as a unit price for Enrollment Allotted Transaction for De-duplication Services
(ii) financial quotation/price quoted by L1 Identity Solutions Operating Company Pvt Ltd is Rs2.75 (inclusive of taxes) as a unit price for Enrollment Allotted Transaction for De-duplication Services
This reply implies that for each of the 100 crore Indian residents targeted for Aadhaar enrolment, the taxpayer through the central government will have to incur the cost of Rs2.75 to the companies in question. This is significant because this is not a one-time cost but each time de-duplication of Aadhaar number is done, the cost will be incurred.
Besides other gnawing concerns about an assault on human rights, national security, economy and sovereignty, this is yet another case of foreign companies withholding transfer of technology from developing countries.
It is also relevant to recall that two US based corporations, HP and IBM, had challenged UIDAI's tender processes. They had objected to their technical disqualification. The Rs2,000 crore contract for UIDAI's tender for managed service provider was won by Wipro Technologies. The Economics Times had reported on how the UIDAI tender process was unfair.”
Notably, the 'Strategic Vision on the UIDAI Project' document that was prepared and submitted to the processes committee of the Planning Commission (set up in July 2006) by Wipro Ltd (consultant for the design phase and programme management phase of the pilot UIDAI project).
It is noteworthy that the decision of Sharat Sabharwal, Information Commissioner, CIC and the letter of UIDAI furnishing "Limited Financial Information" is contrary to the original order of Sushma Singh, the Information Commissioner, CIC dated 21 October 2013. Mr Sabharwal’s order appears indulgent towards the UIDAI and the foreign companies in question.
The sequence of events in this regard is quite germane for understanding the issues at hand. The Biometric Service Providers, namely, Satyam Computer Services/Sagem Morpho, L1 Identity Solutions and Accenture Services had responded to UIDAI’s Expression of Interest (EoI) and submitted their tenders for accepting the projects on the basis of fulfilling the following clauses:
a) The prime respondent should have an office in India in the form of a Registered Office.
b) If the prime respondent does not have a Registered Office, then it should have a Branch office, Representative Office, Sales Office, or an office of its subsidiary company in India for the purpose of submission of the expression of interest response.
c) If the prime respondent is unable to meet the stated conditions, it shall submit a declaration/confirmation stating that it shall have Registered Office in India for the purposes of signing contracts with the UIDAI.
But in its letter dated 21 July 2011, the UIDAI stated that “There is no means to verify whether the said companies/ organizations are of US origin or not. As per our contractual terms and conditions, only the companies registered in India can bid.” If that is indeed the case then the UIDAI will have no means to verify whether Sagem Morpho and later L1 are of French origin or not.
Subsequent RTI applications forced UIDAI to share contract agreements with these companies, which clearly stated their countries of origin. This establishes that the UIDAI did have the means of verifying the foreign origin of the companies in question. It indulged in misrepresentation of facts with impunity.
If the letter of 14 October 2014, Vijay Bhalla, Deputy Registrar, CIC is read with the interim order of Sushma Singh, Information Commissioner, CIC dated 26 July 2013, it become abundantly clear that UIDAI had raised the issue of Third Party’s trade secret and propriety information and the same was responded to by the author in writing. The order reads: “The appellant’s representative filed written submissions before the Commission, which inter-alia states that denial of information is not in public interest.
The people of India have a right to know the details of the contracts issued by an Authority set up under an order of the Executive and the Authority claiming to act on behalf of the Government of India, entering into contracts with private firms, both foreign and Indian. Since the contracts are paid from Government funds and the project for which the contracts have been given pertained to the collection and processing of personal information of every person residing in India, including the citizens, the people have a right to the said information.”
In her order, she asked the UIDAI to provide “written submissions, justifying non-disclosure of the information sought by the appellant under the provisions of Section 8 (1) (d) of the RTI Act.” The matter was scheduled for hearing on 10 September 2013.
On 10 September 2013, UIDAI failed to provide the “written submissions, justifying non-disclosure of the information sought by the appellant under the provisions of Section 8 (1) (d) of the RTI Act”. UIDAI realized that it does not have any defence under the said RTI Act for denial of information. It submitted a letter (No. F.2013/096/2012-RTI-UIDAI) dated 10 September 2013 to Sushma Singh, Information Commissioner, CIC.
On 10 September 2013, the author attended the hearing at the Central Information Commission (CIC). Shirish Kumar, Assistant Director General (ADG), Unique Identification Authority of India (UIDAI) and Shalic Das, ADG, UIDAI, were also present during the hearing, wherein the CIC sought an explanation from the UIDAI about their refusal to share a copy of all contracts given to biometric technology companies, namely, L1 Identity Solutions and Accenture. To which the UIDAI “submitted before the Commission that the copy of the said contracts can now be provided as the contracts have now expired.”
The UIDAI gave a written submission to the CIC (No.F12013/096/2012-RTI-UIDAI) stating that "contractual obligation with respect to BSP's (Biometric Solution Provider) contracts had expired. Therefore, UIDAI has no objection in sharing the following contract details :-
a) Copy of contract of UIDAI with L1 Identity Solutions for Biometric Technology; and b) Copy of contract of UIDAI with Accenture for Biometric Technology".
Taking this submission into account, Sushma Singh, Information Commissioner, CIC gave her final order saying, “In view of the above, the Commission hereby directs the respondent (UIDAI) to provide a copy of the two contracts to the appellant within two weeks from the receipt of the order.” This order demolished the reasoning behind the claim of UIDAI for denial of contract agreements of these foreign companies. UIDAI had stated that “The information relating to the referred contracts cannot be disclosed as per clause 8.1 (d) of RTI Act, 2005” in its letter dated 7 May 2012.
Following the hearing, the author met Shirish Kumar, ADG, UIDAI at their office in Jeevan Bharti Building, New Delhi who gave me copies of the contract of UIDAI with L1 Identity Solutions for Biometric Technology and Accenture for Biometric Technology.
After examining the contract agreement with regard to the Accenture for Biometric Technology, the author noticed that the first 237 pages of the contract agreement were in order but after that there is a one pager titled Annexure J Technical Bid Technical Bid as submitted by Accenture Services Pvt Ltd but the Technical Bid document is missing.
After that there is a one pager titled Annexure K Commercial Bid Commercial Bid as submitted by Accenture Services Pvt Ltd but the Commercial Bid document is missing.
With regard to the L1 Identity Solutions for Biometric Technology, the author noticed that the first 236 pages were in order, but a one pager titled “Annexure I Non-Disclosure Agreement as submitted by L1 Identity Solutions Operating Company Pvt Ltd” is missing. After that there is a one pager titled Annexure J Technical Bid as submitted by L1 Identity Solutions Operating Company Pvt Ltd., which is missing. After that there is a one pager titled Annexure K Commercial Bid as submitted by L1 Identity Solutions Operating Company Pvt Ltd., which is missing.
This compelled the author to write to Shirish Kumar, ADG, UIDAI about the “Missing Pages from the contract agreement of UIDAI and foreign biometric technology companies, CIC Case No. CIC/SS/A/2012/003157,” asking him to share the missing papers. It was/is evident that although the CIC asked the UIDAI to share a copy of the contracts, it chose to violate this order and shared truncated and selected parts of the contact agreement.
Shirish Kumar responded on 20 December 2013 claiming, “There are no missing pages in the two contracts…Some of the pages in the above contracts have only references of Annexures. The annexures J&L w.r.t Accenture Service Pvt Ltd mentioned Technical Bid and Commercial Bid. The annexures I, J, & K wrt to L-1 Identity Solutions Operating Pvt Ltd mentioned-non disclosure Agreement, Technical Bid and Commercial Bids.” The very next paragraph of his letter revealed the inconsistency of his claim.
He further stated, “As per Confidentiality Disclosure statement, the document contains confidential information of the above firms and they have requested not to disclose the information outside UIDAI or be used for purposes other than the evaluation of their business capabilities. Secondly, this being third party information, the firms were requested for their comments, wherein they had declined to share their documents with any applicant.”
Tomorrow: Guaranteed revenue flow for MNCs by Modi govt? –Part2
(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
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