Ashok Gehlot government’s submission to the Supreme Court, just before vacating the office, not only dismisses fundamental rights of Indian citizens but also questions powers of the apex court. That too when several experiments in Rajasthan had revealed the failure of Aadhaar-based systems
“If once people become inattentive to the public affairs, “you and I, Congress and Assemblies, judges and Governors shall become wolves.”
-Thomas Jefferson, author of the Declaration of Independence and the third president of USA in a letter, 16 January, 1787
“The people cannot be all, and always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty.”
-Thomas Jefferson in a letter, 13 November, 1787
Commenting on Aadhaar-based cash transfers, at Jantar Mantar in New Delhi, Shankar Singh of Mazdoor Kisan Shakti Sangathan had prophetically said, “You transfer cash, we’ll transfer our votes.” The voters transferred the votes from Congress to Bharatiya Janata Party (BJP). Out of the 49 assembly constituencies where direct benefits transfer (DBT) implemented, the Congress could win only three, while BJP won 39. This is a verdict against Aadhaar-linked programs of the Congress party. BJP cannot afford to delay announcement of its abolition. It should unsign the memorandum of understanding (MoU) the state governments signed with illegal and illegitimate Unique Identification Authority of India (UIDAI) headed by Congressman Nandan Nilekani.
So far Rajasthan is the only state, which has filed its affidavit in the matter of biometric Aadhaar number in compliance with the Supreme Court’s order of 26 November 2013 seeking affidavits from all the states. Vasundhara Raje Scindia assumed the office as the 24th chief minister of Rajasthan on 13 December 2013 defeating Ashok Gehlot of Indian National Congress (Congress). It was unethical and inappropriate for the Gehlot government to have filed the affidavit in the matter on 5 December 2013 knowing instead of waiting for the new chief minister to take over. All the citizens of 33 districts of the state await Raje’s intervention to save them from the harassment caused to them due to the implementation of illegal and illegitimate biometric Aadhaar number scheme.
In its preliminary reply filed by Dr Hansraj Yadav, additional director (UID), Department of DoT&C, Government of Rajasthan under the regime of Congress in the matter of Aruna Roy Vs Union of India, which attached Justice Puttaswamy’s petition against biometric Aadhaar, submitted, “The State of Rajasthan is unambiguously in favour of implementation of Aadhaar Scheme. In fact, if Aadhaar Scheme as conceived and contemplated is implemented throughout the country then every resident shall have a unique identification number (UID) and which shall have obvious positive impact. Therefore, one cannot find fault with overarching scheme which postulates a unique identification number for every resident of the country.”
The affidavit submits, “The biometric science would only identify the concerned person and it is only for identification of person. Thus, use of aforesaid information cannot be termed as Invasion of Privacy and adequate care has been taken that the data collected during the preparation of Aadhaar Card does not come in public domain.”
It is not clear as to how this “obvious” inference has been arrived at.
But when one reads what this affidavit argues about the powers of the Supreme Court then it becomes abundantly clear that it is not only dismissing the fundamental rights of citizens but also the powers of the Court. It submits, “It is most respectfully submitted that the Court has very limited powers of judicial review to examine a policy decision.” This argument will have us believe that court has limited powers and the government has unlimited powers.
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”, it submits that “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.” The Latin phrase PROPRIO VIGORE means by its own force or vigor or of one’s own strength. This proposition in the affidavit is absurd and the phrase in question has been used in an inappropriate context. The fact is that Government of India can introduce the Bill in the Parliament and propose the law but it does not mean it has “the legislative competence to enact law”, the competence for enactment of law lies with the legislature.
The affidavit is deliberate creating ambiguity about the involvement of private agencies and confines itself to the agencies involved in the distribution of Aadhaar. It feigns ignorance about involvement of transnational identification technology companies who admittedly work with foreign intelligence agencies.
The Gehlot government had issued a circular on 17 October 2012 to all the residents of Rajasthan including government servants to get enrolled for Aadhaar. Field visits in Rajasthan in February 2013 revealed that two months after the roll out in 20 pilot districts, the total amount of money transferred nationally was only Rs5.5 crore through the Aadhaar-based payment network. In Ajmer, out of some 20,000 potential beneficiaries, only some 220 beneficiaries received money in the bank through the biometric Aadhaar. Even this money was not through a biometric identification, illustrating how it was a failure. In the Janani Suraksha Yojna, out of some 1400, only 139 women who delivered children in the hospital received money in the bank through Aadhaar sans biometrics.
The experiment in Kotkasim, Alwar district, Rajasthan brought to light the fact that the crash in sale of kerosene happened because many ration card holders did not have bank accounts but financial newspapers reported that the sale dropped because leakage has been plugged based on District Collector’s report. The fact was since the subsidy could not be reimbursed to many ration card holders, they were compelled to stop buying kerosene. The banks are located far away adding to the villagers having to incur transport expenses. If such experiments continue even the existing system will collapse as people are being driven out from it. It is not about the “bogey of non-access to public services”, these experiments reveals that the Aadhaar based system is not working.
The Congress-led Rajasthan government had linked 10-key schemes to the Aadhaar unique identification programme making it compulsory for arms license, old-age, widow and differently-abled pension schemes, rural job cards, ration cards, driving license, property registration, water and electricity connections, Indira Awas Yojna and student scholarships.
The affidavit observes, “since Aadhaar number corresponds to a unique record, therefore, tagged to a unique individual, merely introduction of Aadhaar in the beneficiary database ensures detection of a large number of duplicates.”
The fact is that there is no evidence about the extent of the leakage due to duplicates. The paper done by the National Institute of Public Finance and Policy at the behest of UIDAI is an exercise in assumptions because the authors themselves admit that their data is outdated and in some aspects the data is not available. This is admittedly not an independent study as was claimed by Nilekani in April 2013 in Washington. The biometrics collected for “de-duplicating” all the residents of Rajasthan is an improbable task because the December 2009 report of UIDAI’s committee on biometrics revealed that in its sample of 25,000 people, 2-5% did not have biometric records. It is estimated that approximately 5% of any population has unreadable fingerprints, either due to scars or aging or illegible prints. In the Indian environment, experience has shown that the failure to enroll is as high as 15% due to the prevalence of a huge population dependent on manual labour, according to RS Sharma, the then director general and mission director, UIDAI. When as many as 15% fail to enroll, how does “Aadhaar in the beneficiary database ensures detection of a large number of duplicates”?
The affidavit submits, “It is equally a sedimented proposition of law that possibility of misuse or even some aberrations whilst implementation or enforcement of a policy decision would not invalidate a scheme or policy decision.” Similar indefensible arguments have been advanced by Congress-led union government in the matters of coal block allocation and 2G spectrum allocation. It has been admitted by the government that Court can intervene if “the policy decision is patently arbitrary, discriminatory or mala fide”. There is sufficient evidence to infer that decisions regarding Aadhaar and related schemes are ‘patently arbitrary, discriminatory or mala fide’. It is arbitrary because there was no feasibility study and no cost-benefit analysis that preceded their launch.
In response to a question in the Lok Sabha: "whether any pre-feasibility study or cost benefit analysis was done before the notification for creation of UIDAI was issued on 28 January 2009; if so, the details thereof," V Narayanaswamy, as minister of planning, replied on 18 August 2010 that "An Empowered Group of Ministers which was constituted in December 2006 .... decided that a Unique Identification Authority of India be constituted under the Planning Commission and be made responsible for implementing the project which would aim at better targeting of welfare services, improving efficiency of the services and better governance. The benefits accruing out of the project should far outweigh the cost of the project." It did not undertake the cost-benefit analysis and this was underlined by the Parliamentary Standing Committee on Finance in its report. It is mala fide because it has not disclosed to Indians that the biometric profiling under Aadhaar is linked to National Population Register (NPR), which in turn is related to National Intelligence Grid.
The new government in Rajasthan should immediately withdraw this circular issued by CK Mathew, the chief secretary in compliance with the Supreme Court’s order to tide over the sad legacy of the Congress government.
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(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
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