Delhi High Court refuses to hear RTI case regarding world's biggest surveillance project through Central Identities Data Repository (CIDR)
'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master—that’s all.'
Lewis Carroll’s character Humpty Dumpty in Through the Looking Glass
According to Concise Oxford dictionary, surveillance means 'close observation, especially of a suspected person'. Wittingly or unwittingly the ruling parties in India are facilitating surveillance of the nation, citizens and the national assets by transnational actors—with impunity. Out of colossal ignorance, opposition parties are increasingly complicit in it.
If World Bank Group is not the master of language being used in the world economy then who else is? Is it the “financial Interpol” as well? The body which undertakes financial surveillance is a “financial Interpol” for sure. Now it is increasingly apparent that it aims to undertake "electoral surveillance" as well.
An official publication of World Bank Group’s International Monetary Fund (IMF) reveals, “Surveillance, a central pillar of IMF activities and responsibilities in the modern era, is not an easy concept to grasp.”
It will have us accept that only the master can grasp and communicate the meaning of ‘surveillance’. IMF commiserates with the lesser mortals stating that it knows that ‘surveillance’ does sound terrible. This is understandable.
Jacob A Frenkel, an official of IMF is quoted as arguing that this word ‘surveillance’ should be made to sound benign. It “should give way to concepts of cooperation, partnership, and consultation; of bringing on board the rest of the world’s considerations.” This publication states, “In practice, surveillance has encapsulated all of the above notions, but at its best it has been motivated by and has itself promoted a spirit of international cooperation.”
This publication informs that the first official use of the term came in June 1974. IMF was concerned that “Few, if any countries, however, were prepared to be subjected to surveillance in that strong sense. The 1980s therefore became a decade of experimentation, in which the staff and management of the Fund constantly probed and prodded to see how far they could go in persuading countries to respond positively to Fund analysis and advice.” This concern of IMF is deeply touching. But IMF’s efforts did yield results and by the mid-1990s, a “silent revolution” had happened in countries like India, it infers.
By 2013, at least citizens of 35 countries and their heads know exactly what ‘surveillance’ means. It does sound terrible. Both National Security Agency (NSA) of the US and World Bank Group have a different and benevolent sounding meaning in mind. The publication admits, “Even among IMF staff, those questions did not yield uniform answers.” This incomprehension among them is understandable because The Concise Oxford Dictionary of Current English tells them that it means “close observation especially of a suspected person.” Heads of financial institutions, Barack Obama and the Prime Minister should consider getting this dictionary meaning changed through their power of persuasion, peer pressure and advertising to avoid confusion that still exists despite relentless and sincere efforts at least since 1974.
This IMF publication states, “If surveillance was to have any substance, the Fund would have to develop that influence: through the power of persuasion (Fund management and staff to country authorities), through peer pressure (country to country in the forum of the Fund), and through publicity (Fund to the public). The relative merit of each of these channels was always the subject of much debate. Was publicity appropriate, or would it conflict with and even nullify the benefits of persuasion and peer pressure?” The publication uses the word ‘Fund’ to refer to IMF.
IMF asks itself, “Did surveillance mean that the IMF was expected to be a financial Interpol, seeking out and punishing errant behavior, or should its role be more that of a faithful confidant of those entrusted with implementing macroeconomic policies around the world?”
Hasn’t India become “a faithful confidant” of World Bank Group?
There is a chapter “On the Map: Making Surveillance Work” under the section Revolutions in the International Monetary System in the publication titled Silent Revolution: The International Monetary Fund 1979–1989 by James M Boughton published in 2001. The chapter deals with the principles and procedures of surveillance. It may be recalled that Pranab Mukherjee was deeply engaged with the World Bank in various roles from 1982 to 1985.
Notably, it was Mukherjee who formed Unique Identification Authority of India (UIDAI) and announced its setting up during the 2009-10 budget speech. He was the Finance Minister from 24 January 2009 to 26 June 2012. In fact, it is remarkable that within four days of taking over as Finance Minister, he got the UIDAI notified on 28 January 2009 by the Planning Commission. In all likelihood, he was part of the Empowered Group of Ministers (EGoM) too, which took a decision about the formation of UIDAI on 4 November 2008.
It may recalled that while presenting the Union Budget in 2011-12, Mukherjee, the then Union Finance Minister informed the Lok Sabha that Technology Advisory Group for Unique Projects (TAGUP) headed by Nandan Nilekani, chairman, UIDAI has submitted its report dated 31 January 2011 and its recommendations have been accepted in principle. As a consequence the sovereign function of tax collection is all set to be handed over to an entity called National Information Utility (NIU), which will be a private company with a public purpose and with profit making as the motive but not profit maximizing. This is yet another lesson either in language or in linguistic corruption.
Earlier, it must be recalled that on 11 January 2011, Business Standard reported that “India has sought an assessment under the Financial Sector Assessment Programme (FSAP) of the International Monetary Fund (IMF) and the World Bank. “India did a self-assessment (by the Committee on Financial Sector Assessment, or CFSA) of its financial sector in 2009. This has given us the confidence to get our financial sector evaluated by international financial institutions like IMF and the World Bank. We have voluntarily sought a full-fledged Financial Sector Assessment Programme,” the then finance minister Mukherjee said at the second International Finance Conference at the Indian Institute of Management (IIM) Calcutta. This is an admission of the fact that India has subjected itself to the surveillance principles and procedures of IMF. By now Indians know how tricky the use of word ‘voluntary’ is when the Bank is involved in any way.
Chronologically, after this announcement by Mukherjee, Government of India and the World Bank signed a loan agreement of $150 million on 10 May 2011 for the e-Delivery of Public Services Development Policy Loan under the National e-Governance Plan (NeGP). NeGP is a flagship e-governance initiative approved in May 2006 as a national program to create 'single window' Common Services Centers. NeGP has identified 27 priority projects to be transformed using e-services including details on land records in some 250,000 areas. This loan from the International Bank for Reconstruction and Development (IBRD) has a 5-year grace period and a maturity of 18 years.
And on 13 May 2011, delivering his speech ‘India in a Multipolar World’, Dr Ngozi Okonjo-Iweala, managing director of World Bank said, “The President of India has recently spelled out among the priorities of her government a set of reforms on governance. This includes initiatives to promote e-governance, which is potentially an effective tool for enhanced transparency, equity and accountability as well as hopefully for administrative reforms. I met Nandan Nilekani this morning and was impressed by the potential impact of the Unique ID scheme for service delivery—more than five million Unique IDs have been issued since September 2010, providing people with a legal identity they probably did not have before. Innovative ICT tools such as this can be an effective mechanism to both supply information and services to citizens and receive feedback from citizens.”
No one will dispute that World Bank has been an undemocratic organization since its inception and is likely to remain so for all times to come. This motivated outreach towards citizens at large especially in developing countries merits attention. It is noteworthy that the annual reports of Congress party led United Progressive Alliance (UPA) refers to biometric-based Aadhaar/UID as parts of its e-governance initiative.
Earlier on 20 April 2010, the World Bank Group announced that it has thrown open the doors to its statistical databases to provide free, open, and easy access to its comprehensive set of data on living standards around the globe - some 2,000 indicators, including hundreds that go back 50 years. It appears to be a case of paving the path for developing countries. And on 23 April 2010, the Bank launched its eTransform Initiative by signing a memorandum of understanding (MoU) with France and South Korea besides transnational companies like L-1 Identity Solutions, IBM, Gemalto, Pfizer and others. It was launched in the presence of Ministers of Finance and Communications from many developing countries. The World Bank is currently funding 14 projects related to e-government and e-ID around the world.
It merits recollection that Mukherjee was the Finance Minister during January 1982 to December 1984, which is part of the relevant period with which the IMF publication deals. He led the Indian delegation at the annual meetings of the World Bank and International Monetary Fund (IMF) during 1982, 1983, 1984, 2009, 2010 and 2011 and he was on the Board of Governors of the IMF during 1982 to 1985 and during 2009 – 2012. Mukherjee was rated one of the best five finance ministers of the world in 1984 according to a survey conducted by “Euro Money” Journal published from New York and was declared ‘Finance Minister of the year’ for Asia in 2010 by “Emerging Markets”, the journal of record for the World Bank and the IMF.
Unless one is not acting as a foundation stone of the “central pillar” of World Bank Group, why will it shower accolades on him and likes of Nandan Nilekani?
There is a revelation in the publication that IMF is concerned with the “viability of military spending” as well. IMF took a formal position on the role of military spending in national economic policy in October 1991. At that time, executive directors concluded that, “as military expenditure can have an important bearing on a member’s fiscal policy and external position, information about such expenditure may be necessary to permit a full and internally consistent assessment of the member’s economic position and policies” If this is not an exercise in surveillance, which admittedly sounds ‘terrible’, what else is it?
Metamorphosis in simple words means transformation. Metamorphosis of the state, the government and citizen is the core motive of electronic and biometric identification as part of the Transformational Government initiative of the World Bank Group.
Mukherjee's presidential speech used to link welfare services to biometric Aadhaar/UID disregarding its illegitimacy and unconstitutionality.
In a related development, a RTI application partially revealed the content of MoU/ Contract executed between UIDAI with L1 Identity Solutions Operating Company, currently a subsidiary of French conglomerate Safran Group, Sagem Morpho Security Pvt Ltd, a subsidiary of Safran Group, Ernst & Young, a US company, Accenture Services Pvt Ltd, a US company and ID Solutions company and the tender cost. At the time of award of contract to L1 Identity Solutions Operating Company was a US company.
A reply dated 25 October 2013 from Shirish Kumar, assistant director general and chief public information officer (CPIO) of UIDAI reveals that the value of contract for L1 was Rs33.87 crore and for Ernst & Young it was Rs7.05 crore. With regard to Sagem Morpho Security Pvt Ltd, it states that the “effort is on find the data” about the value of contract awarded. This reply in the matter of Sagem Morpho Security Pvt Ltd is quite intriguing. Notably, L1 has undergone metamorphosis and become part of Safran Group along with Morpho Security Pvt Ltd.
It is relevant to reiterate in this context that Nilekani was given ID Limelight Award at the ID WORLD International Congress, 2010 in Milan, Italy on 16th November wherein Safran Morpho (Safran group) was a key sponsor of the ID Congress. Its subsidiary, Sagem Morpho Security Pvt Ltd has been awarded contract for the purchase of Biometric Authentication Devices on 2 February 2011 by the UIDAI.
Earlier, on 30 July 2010, in a joint press release, it was announced that “the Mahindra Satyam and Morpho led consortium has been selected as one of the key partners to implement and deliver the Aadhaar program by UIDAI (Unique Identification Authority of India).” This means that at least two contracts have been awarded to the French conglomerate led consortium. Is it a coincidence that Morpho (Safran group) sponsored the award to chairman, UIDAI and the former got a contract from the latter?
Nilekani was given the award "For being the force behind a transformational project ID project in India...and "to provide identification cards for each resident across the country and would be used primarily as the basis for efficient delivery of welfare services. It would also act as a tool for effective monitoring of various programs and schemes of the government."
It may also be noted that UIDAI awarded contracts to three companies namely, Satyam Computer Services Ltd (Mahindra Satyam), as part of a “Morpho led consortium”, L-1 Identity Solutions Operating Company and Accenture Services Pvt Ltd of US for the “Implementation of Biometric Solution for UIDAI” on 30 July 2010.
Following Central Information Commission (CIC)’s intervention in the matter of application filed by Col Mathew Thomas, an octogenarian defence scientist, and submissions by the author on his behalf, UIDAI shared its contract agreement with French and US biometric technology companies but crucial pages are missing from the contract agreement after the CIC heard the matter on 10 September 2013. CIC has ruled, “Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of and in the interest of ‘We the people’ in the past.
For long UIDAI refused to share copy of all contracts given to French and US biometric technology companies, namely, L-1 Identity Solutions and Accenture respectively. L-1 was a US company till recently.
Sushma Singh, the Information Commissioner gave UIDAI’s letter written to CIC submitting that "contractual obligation in respect of BSP (Biometric Solution Provider) contracts has expired. Therefore, UIDAI has no objection in sharing the following contract details:-a) Copy of contract of UIDAI with M/s L-1 Identity Solutions for Biometric Technology; and b) Copy of contract of UIDAI with M/s Accenture for Biometric Technology".
After examining these documents with regard to the Accenture for Biometric Technology, it has come to notice that the first 237 pages appear to be in order but after that there is a one pager titled Annexure J Technical Bid (Technical Bid as submitted by M/s Accenture Services Pvt Ltd). The Technical Bid document is missing. After that there is a one pager titled Annexure K Commercial Bid Commercial (Bid as submitted by M/s Accenture Services Pvt Ltd). The Commercial Bid document is missing.
With regard to the L-1 Identity Solutions for Biometric Technology, one noticed that the first 236 pages appear to be in order but after that there is a one pager titled Annexure I non-disclosure agreement as submitted by L-1 Identity Solutions Operating Company Pvt Ltd. But this document is missing. After that there is a one pager titled Annexure J Technical Bid as submitted by L-1 Identity Solutions Operating Company Pvt Ltd. The Technical Bid document is missing. After that there is a one pager titled Annexure K Commercial Bid as submitted by L-1 Identity Solutions Operating Company Pvt Ltd. The Commercial Bid document is missing. UIDAI has been asked for the missing pages from the copies of the contract.
The reasoning of UIDAI in its letter to CIC dated 10 September 2013 stating that "contractual obligation in respect of BSP (Biometric Solution Provider) contracts has expired” is flawed in the light of the previous judgment of CIC.
Under the Right to Information (RTI) Act, the PIO cannot deny information citing commercial confidence for agreements between a public authority and private party.
While giving this judgment, 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 Right to Information.”
“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.
In the contract agreement between the President of India, as purchaser and L-1 Identity Solutions Operating Company, as a "Biometric Solution Provider" it has been officially admitted that the latter is a corporation of US based in Delaware as of 24 August 2010. L-1 has since been bought over by French corporate conglomerate, Safran Group after the US 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.
From the contract agreement between the President of India, as purchaser and Accenture Services Pvt Ltd as a "Biometric Solution Provider" dated 1 September 2010 it is evident that it has not been disclosed that Accenture Services Pvt Ltd is a subsidiary of Dublin, Ireland based Accenture plc, a US company. Till 1 January 2001 it was known as Andersen Consulting. As a consequence of French corporate conglomerate Safran’s purchase of US company L-1 Identity Solutions, the de-duplication contracts of UIDAI’s Centralized Identities Data Repository (CIDR) and Home Ministry’s National Population Register (NPR) which was given to foreign companies on 30 July 2010 to three companies now lies with two companies of French and US origin namely, Safran Group and Accenture.
UIDAI has not disclosed whether there has been any fresh agreement between UIDAI and Safran Group and its subsidiaries and who all are the biometric solution providers after the expiry of the “contractual obligations” with L-1 Identity Solution and Accenture. The contract agreement with Accenture Services Pvt Ltd at clause 15.1 it reads: "By virtue of this Contract, M/s Accenture Services Pvt Ltd/Team of M/s 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 is 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 reads: "By virtue of this Contract, M/s L1 Identity Solutions Operating Company/Team of M/s 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 purchaser is President of India through UIDAI.
The clause 15.3 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."
This implies that all the biometric data of Indians which has been collected so far is now available to US Government and French Government.
Something remains rotten in the state of Denmark, says Shakespeare in Hamlet. So is the case with Delhi High Court case on non-disclosure of info on foreign firms like ACCENTURE & SAFRAN Group.
Notably, 13th judge heard it on 11th December, 2019 and adjourned it to 01-05-2020. There was no hearing in 2020. As of 12/10/2021, it is listed before Court No. 21 but no date of hearing is mentioned so far.
Writ Petition (Civil) No. 9143/2014, Delhi High Court case on non-disclosure of information of foreign firms by UIDAI despite CIC’s order has been pending since 2014. It has been listed 22 times before 10 different single judge benches Next date of hearing was listed for 19 November 2018 before Justice Vibhu Bakhru. 1st hearing too was before him.
But instead of Justice Bakhru, on November 19, 2018, another new judge, Justice Suresh Kumar Kait heard the matter and passed the order: “Mr Lalit Bhasin, learned counsel appearing on behalf of the proposed respondent M/s Accenture services Pvt.Ltd. seeks time to file reply to the instant application.Let needful be done within four weeks.On taking steps, let service be affected upon other non-applicants, returnable on 14.03.2019.”
On March 14, 2019, another fresh judge, Justice V. Kameswar Rao heard the matter and passed the order: “Let a copy of the application seeking impleadment be given to the counsels for the proposed respondent Nos.4 and 5. Reply to the application be filed within four weeks.Rejoinder, if any, be filed within two weeks thereafter.List on August 28, 2019.”
On August 28, 2019, yet another new judge, Justice Jayant Nath heard the matter and passed the order: “At request of the learned counsel for the petitioner, adjourned to 11.12.2019.”
So far 13 judges have heard the case within a span of 5 years. On 11th December, 2019, the case came before Justice Jayant Nath. He passed an order saying, “On the request of the learned counsel for the respondents, adjourned to 01.05.2020”. As of October 18, 2020, the High Court website shows that the matter is before Court No. 11 but no date has been fixed for hearing an issue of huge national importance.
Can one ask Hon’ble Delhi High Court Chief Justice and Hon’ble Registrar General as to why this national security related case is not getting the priority it deserves? Big Data foreign firms seem to have subverted this public institution as well, no?
In a significant development, on 18 October 2013, Ernst & Young, the firm which had won a contract from UIDAI has agreed to pay $99 million to former Lehman Brothers investors who have accused the auditor of helping Lehman misstate its financial records before the investment bank's collapse triggered a financial crisis in 2008. Lehman is accused of using an accounting practice to misleadingly understate its leverage to make itself appear more financially solvent. In a reported statement Ernst & Young claimed that it is settling the case "to put this matter behind”. It has been alleged that Ernst & Young contributed to the fraud by failing to investigate and ensure the truthfulness of the statements. The question is why Ernst & Young was awarded the contract by UIDAI despite knowledge about its credential at least since 2008.
In the matter of National Identification Authority of India (NIAI) Bill, 2010, “NHRC’s views on the NIAI Bill, 2010″ in the Human Rights Newsletter (Vol. 18 No.8, August 2011) reveals that biometric UID/Aadhaar Number has dangerous ramifications is quite relevant in this regard. The Bill seeking the rubber stamp of legitimacy for UIDAI was trashed by the Parliamentary Standing Committee (PSC) on Finance. NHRC’s view was presented to the PSC. NHRC’s view on “need for protection of information” and “the possibility of tampering with stored biometric information” and “disclosure of information in the interest of national security” has been ignored by Congress Party because it has accepted the principles and procedures of surveillance fixed by the World Bank Group. It is apparent that this party is facilitating surveillance of the nation, citizens and the national assets by transnational actors with impunity. The party has structurally adjusted the national institutions to ensure it.
Biometric data based 12 digit Unique Identification (UID)-Aadhaar Number linked welfare schemes is being bulldozed with the ulterior motive of altering voting behavior of the citizens by creating a ‘universal identity infrastructure’ linked to ‘unified payment infrastructure’.
Ahead of next parliamentary elections, with the launch of 21st crore UID-Aadhaar Number and Aadhaar Enabled Service Delivery (AESD) on October 20, 2012 contemptuously ignores Parliament, Parliamentary Committee, National Advisory Council and eminent citizens and the lessons from the belated report from Planning Commission’s Group of Experts on Privacy dated October 16, 2012. What is evident is that there is an open war declared on sensitive personal information like biometric data which includes finger prints, iris scans, voice prints, DNA samples etc. The fact is a centralized electronic database of citizens and privacy, both are conceptually contradictory.
The launch exercise of October 20, 2012 stands exposed because it is officially admitting that UID-Aadhaar is mandatory contrary to what was claimed at its launch in Maharashtra on September 29, 2010. The creeping of voluntariness into compulsion through threat of discontinuance of services has been roundly castigated by Bhartiya Janta Party (BJP) leader Yashwant Sinha headed Parliamentary Standing Committee on Finance.
A revealing Policy Research Working Paper titled ‘Conditional Cash Transfers, Political Participation, and Voting Behavior’ brought out by World Bank in October 2012 “provides empirical evidence to support the notion that political participation and political views are responsive to targeted transfers.” It notes that in Colombia, “During the 2010 presidential election voters covered by FA (large scale conditional cash transfer) not only voted more often, but also expressed a stronger preference (around 2 percentage points) for the official party that implemented and expanded the program… Another possible explanation is that FA (large scale conditional ash transfer) was strategically targeted and motivated by clientelism and vote buying.”
On its website Unique Identification Authority of India (UIDAI) continues to claim that UID-Aadhhar is ‘voluntary’ and not ‘mandatory’. The million dollar question which Sonia Gandhi, Manmohan Singh, P Chidambaram, Montek Singh Ahluwalia and Nandan Monohar Nilekani need to answer is: how can Aadhaar be deemed ‘voluntary’ if service delivery is being made dependent on it. This is a grave breach of public trust. This is a deliberate exercise in deception. The proposed ‘electronic transfers of benefits and entitlements’ through ‘Aadhaar-linked bank accounts of the beneficiaries’ is crafted to make it mandatory. The claim “Each Aadhaar number will be unique to an individual and will remain valid for life. Aadhaar number will help you provide access to services like banking, mobile phone connections and other Govt and Non-Govt services in due course” is fraught with creating a platform for convergence of government and corporate sector as is aimed by the ‘Transformational Government’ project of World Bank’s eTransform Initiative launched in partnership with Governments of South Korea and France and six transnational corporations like Gemalto, IBM, Intel, L-1 Identity Solutions (now part of Safran Group), Microsoft and Pfizer.
This scheme is unfolding despite the fact that Parliament has not passed the National Identification Authority of India Bill (NIAI), 2010 proposed by the Indian National Congress led United Progressive Alliance (UPA) government. It is noteworthy that Sinha headed Parliamentary Committee in its report to the Parliament has rejected UID and biometric data collection terming it as an illegal and an unethical project.
Corroborating citizens’ concerns, the Parliamentary Committee has noted that the government has “admitted that (a) no committee has been constituted to study the financial implications of the UID scheme; and (b) comparative costs of the aadhaar number and various existing ID documents are also not available.” The Committee expressed its anxiety that, the way the project had been run, “the scheme may end up being dependent on private agencies, despite contractual agreement made by the UIDAI with several private vendors.”
The parliamentary rejection of this scheme came in the aftermath of the Statement of Concern issued in the matter of world's biggest data management project, Unique Identification (UID) /Aadhaar Number scheme and related proposals like National Intelligence Grid by 17 eminent citizens led by Justice V R Krishna Iyer. The NIAI Bill, 2010 which was introduced in the Rajya Sabha on December 3, 2010 after the constitution of the UIDAI and appointment of Nilekani as its Chairman in the rank and status of a Cabinet Minister without oath of secrecy. The Bill sought to provide statutory status to the UIDAI which has been functioning without backing of law since January 2009. At present UIDAI is functioning without any legislative mandate.
One day ahead of the launch of UID in Nandurbar District of Maharashtra on September 29, 2010, the statement of eminent citizens had asked for the project to be put on hold till a feasibility study was done, a cost: benefit analysis undertaken, a law of privacy put in place and the various concerns of surveillance, tracking, profiling, tagging and convergence of data be addressed. None of this has happened till today. The Parliamentary Committee had endorsed these concerns and recognised that the project cannot carry on till this is set right. Many countries UK, China, USA, Australia and the Philippines have abandoned such identity schemes.
Nilekani, as a member or chairperson of multiple committees of several ministries pushed for the adoption of the UID, and for the re-engineering of current systems to fit the does not meet the requirements of the UID. There have been attempts to withdraw services such as LPG and other essential commodities if a person has not enrolled for a UID. The state governments and citizens have been kept in dark about the harmful ramifications of the world's biggest data management project and how it linked with hitherto undisclosed other proposed legislations and initiatives. The UID number and related proposals pose a threat to both civil liberties as well as our natural resources like land as is evident from Land Titling Bill and Nilekani’s book that aims to create a common land market to reduce poverty.
Nilekani's promotion of Hernando de Sotto's book 'The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else' through his own book Imagining India arguing that national ID system would be a big step for land markets to facilitate right to property and undoing of abolition of right to property in 1978 in order to bring down poverty! Nilekani and the UPA government should be asked as to explain the inexplicability of such assumptions.
Notably, such UIDs have been abandoned in the US, Australia and UK. The reasons have predominantly been: costs and privacy. In the UK, the Home Secretary explained that they were abandoning the project because it would otherwise be `intrusive bullying’ by the state, and that the government intended to be the `servant’ of the people, and not their `master’. The Supreme Court of Philippines struck down a biometric based national ID system as unconstitutional on two grounds – the overreach of the executive over the legislative powers of the congress and invasion of privacy. The same is applicable in India.
Not surprisingly, the Parliamentary Committee observes, “The clearance of the Ministry of Law & Justice for issuing aadhaar numbers, pending passing the Bill by Parliament, on the ground 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 the legislation does not satisfy the Committee. The Committee are constrained to point out that in the instant case, since the law making is underway with the bill being pending, any executive action is as unethical and violative of Parliament's prerogatives.” The committee also observed that a National Data Protection Law is “a pre-requisite for any law that deals with large scale collection of information from individuals and its linkages across separate databases. It would be difficult to deal with the issues like access and misuse of personal information, surveillance, profiling, linking and matching of data bases and securing confidentiality of information etc.“
In a significant development following rigorous deliberations, an Indian development support organization founded in 1960, Indo-Global Social Service Society (IGSSS) disassociated itself from UID Number project which was being undertaken under Mission Convergence in Delhi. Withdrawal of IGSSS that works in 21 states of the country merits the attention of all the states and civil society organisations especially those who are unwittingly involved in the UID Number enrollment process. In its withdrawal letter IGSSS said, “we will not be able to continue to do UID enrolment…” It added, it is taking step because ‘it's hosted under the rubric of UNDP's "Innovation Support for Social Protection: Institutionalizing Conditional Cash Transfers" [Award ID: 00049804, Project: 00061073; Confer: Output 1, Target 1.2 (a) & Output 3 (a), (b)]. In fact we had no clue of this until recently when we searched the web and got this information.’
It is clear that both Mission Convergence and UIDAI have been hiding these crucial facts with ulterior motives. The letter reads, “IGSSS like many other leading civil society groups and individuals are opposed to conditional cash transfers and the UID will be used to dictate it.”
The Parliamentary Standing Committee considered the NIAI Bill, 2010 presented its report to the Parliament on December 13, 2011. The report had rejected biometric data based identification of Indians. The report is a severe indictment of the hasty and `directionless' project which has been "conceptualised with no clarity of purpose". Even the functional basis of the Unique Identification Authority of India UIDAI is unclear and yet the project has been rolled out. The Standing Committee found the biometric technology `uncertain' and 'untested'. As early as December 2009, the Biometric Data Committee had found that the error rate using fingerprints was inordinately high. In a recent interview to the press, the Director General and Mission Director of the UIDAI had admitted that fingerprints are likely not to work for authentication. The error rate could end up excluding up to 15% of the population. It has also come to light that even iris scan keeps changing and is unreliable. Yet, the ruling parties have gone ahead with the exercise.
Besides influencing the voter preference, once the Central Identities Data Repository (CIDR) is ready, it will emerge as a potential threat to minority communities of all sorts by some regime which finds them unsuitable for their political projects.
So far the entire political class has remained insensitive to the decision of the European Court of Human Rights about violation of the right to privacy and citizens’ rights. The case was heard publicly on February 27, 2008, and the unanimous decision of 17 judges was delivered on December 4, 2008. The court found that the “blanket and indiscriminate nature” of the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offenses, failed to strike a fair balance between competing public and private interests and ruled that the United Kingdom had “overstepped any acceptable margin of appreciation” in this regard. The decision is nonappealable.
Unmindful of this, in India, National databank of biometric data is unfolding which is proposed to be linked to electoral database amidst the political myopia of political parties in the face of the onslaught of the foreign biometric and surveillance technology companies. The only saving grace has been Parliamentary Standing Committee that has taken on board studies done in the UK on the identity scheme that was begun and later withdrawn in May 2010, where the problems were identified to include "(a) huge cost involved and possible cost overruns; (b) too complex;(c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs."
It may be recalled that S.Y. Quraishi as the Chief Election Commissioner had sent a dangerous proposal to Union Ministry of Home Affairs asking it “to merge the Election ID cards with UID”. Such an exercise would mean rewriting and engineering the electoral ecosystem with the unconstitutional and illegal use of biometric technology in a context where electoral finance has become source of corruption and black money in the country. This would lead to linking of UID, Election ID and Electronic Voting Machines (EVMs) which is not as innocent and as politically neutral as it has been made out to be. It is noteworthy that all EVMs have a UID as well. In the meanwhile, it is reliably learnt that voter registration in Manipur is happening using biometric data. This makes a mockery of the recommendations of the Parliamentary Committee on UID which notes that “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”.
Opposition parties at the centre and in the States appear to be feigning ignorance about these attempts at re-plumbing the electoral ecosystem and a complicit section of civil society seems guilty of practicing ‘the economics of innocent fraud’.
The results of the October 2012 World Bank paper reveals that “voters respond to targeted transfers and that these transfers can foster support for incumbents”. The UID-Aadhaar and unified payment infrastructure proposed is an act in designing political mechanisms to capture pre-existing schemes for political patronage in spite of the absence of ‘legislative mechanisms’. It is apparent that political parties have been caught unawares into implementing the program which is designed to their political disadvantage.
Unless the total estimated budget of the Aadhaar project is revealed, all claims of benefits are suspect and untrustworthy.
At the Global Conference on Cyber Space, Prime Minister said, “I am sure most of you are already aware of Aadhaar, which is the unique biometric identity of a person…Through better targeting of subsidies, the JAM trinity has prevented leakages to the tune of nearly 10 billion dollars so far.” Sometime back, former head of Unique Identification Authority of India (UIDAI), Nandan Nilekani had claimed in Washington that so far, the government has saved about $9 billion by eliminating fraud in beneficiary lists due to 12-digit biometric Unique Identification (UID)/Aadhaar Numbers being fed into Central Identities Data Repository (CIDR). These questionable claims about savings from UID/Aadhaar have been widely reported. However, most such claims have been published without verifying the source of the data. Given the fact that these claims are based on reports of the World Bank it is relevant to recall the veracity of the bank’s own claims.
The World Bank report of 2016 claimed that Aadhaar can save Rs 70, 000 crore annually once Aadhaar is applied to all social programmes and welfare systems. This has been submitted as part of the Central government’s reply to a writ petition before the Supreme Court. The affidavit of April 27, 2017 enclosed the relevant portions of the 359-page World Bank report of 2016 on digital dividends (page 195) to underline the imminent savings “through reduce(d) leakage and efficiency gains”. This data of 11 billion refers to page 197 of the report that is based on a four-page 2015 study titled From Cash to Digital Transfers in India: The Story So Far by Shweta S. Banerjee. Shweta works on the Microfinance Gateway which is housed at the Consultative Group to Assist the Poor (CGAP). On page 1, it is stated: “The value of these transfers is estimated to be Rs 70,000 crores ($11.3 billion) per annum.” It is manifest that it is making a claim about the total value of the money that has been transferred and not about savings as a result of adopting a direct cash transfer model. The source of data cited in this study has conclusively been established to be questionable and unreliable and a major goof. Such claims have been debunked by the Comptroller and Auditor-General of India as well. If the bank’s own data has been found to be ‘puffery’, how can its volunteer’s claims inspire trust? Now that the bank has admitted its blunder in writing, it is time it came out with a clarification to ensure that misleading claims about such savings can be buried “ten fathom deep, with no chance of resurrection.” All ministers, agencies and publications reproducing the Bank’s Himalayan blunder of equating value of “transfers” with “savings in subsidy” in its study are either guilty or complicit in this not-so “innocent fraud”.
As to claims about savings from the Aadhaar project, insincerity has been evident from the outset. During Niekani’s tenure at UIDAI, Parliamentary Standing Committee on Finance in its Sixty-Ninth Report on the ‘Demands for Grants (2013-14)’ observed, “A provision of Rs. 2,620 crore has been allocated in Budget Estimate (2013-14) for UIDAI and a major part of the budget provision for Rs. 1,040 crore is earmarked for ‘Enrolment Authentication and Updation’, out of which an amount of Rs 1,000 crore has been earmarked under the head ‘other charges’.” The total budgetary allocations made for UIDAI since its inception up to 31 March 2014 was Rs 5440.30 crore. For 2009-10, it was Rs 120 crore. For 2010-11, it was Rs 1,900 crore. For 2011-12, it was Rs 1,470 crores 1,200. For 2012-13, it was 1,758 crore and for 2013-14, it was Rs 2,620.00 crore. For the year 2014-15, the budget estimate was Rs 2,039 crore. The budget estimate of expenditure on the project being implemented by UIDAI was Rs 2,000 crore in 20015-16. For the year 2016-17, the estimate was Rs 990 crore (including Rs 190 crore first supplementary). As of February 2017, the UIDAI had incurred a cumulative expenditure of Rs 8,536.83 crore. This included undefined “other charges” pointed out by the Parliamentary Committee.
Take the case of 2009-10 when the budget estimate was Rs 120 crore and the final expenditure was Rs 26.21 crore. In 2015-16, the budget estimate was Rs 2,000 crore but the final expenditure was Rs 1,679 crore. In 2016-17, when budget estimate was Rs 990 crore, the final expenditure is Rs 877.16 crore up to February 2017. For the period 2019-20, the consolidated expenditure upto 30 November 2019 was 429.4 crores.
The Parliamentary Committee wondered in its report as to why inflated targets were consistently being given.
UIDAI got an allocation of Rs 1,345 crore in the 2018-19 and Rs 1,227 crore for 2019-20. But the amount for 2019-2020 was revised downwards to Rs 836.7 crore, according to Budget 2020-21 documents. Notably, excess expenditure during 2019-2020 and 2020-2021 has been met from unspent balance of 2018-19 available in UIDAI Fund. Shouldn’t the UIDAI provide the details of the expenses incurred under “other charges”?
Most recently a reply to an RTI application filed by Prof. Anupam Saraph has revealed that Department of Financial Services, Finance Ministry and other relevant government departments do not have information on rules or procedures to identify beneficiaries of state-sponsored subsidies under the Aadhaar Act, 2016. This implies that the claim made by India's finance minister in 2019 to the effect that UID/Aadhaar number had helped save Rs 90,000 crore by eliminating fake beneficiaries was misleading. The RTI applicant is seeking information on a full citation of rules to identify beneficiaries, officers tasked with maintaining a database of beneficiaries, processes to identify any fake beneficiaries, procedures and algorithms involved in the process and a district-wise break-up of the number of fake beneficiaries. His query has been transferred to several other departments of the Ministry including to the Health and Family Welfare Ministry and Indian Space Research Organisation. They too do not have any information. The First Appellate Authority too has inferred that the information sought is not available. There is no response to his query regarding change from RBI run NEFT/RTGS to an Aadhaar-enabled platform run by NPCI, a private body for transferring benefits and subsidies. Central Information Commission (CIC) was to hear the matter on October 20, 2020 in this regard. It's fate is not known.
Under the influence of World Bank Group, the Government of India has been pushing for PAN-Aadhaar linkage in the name of saving the country from the embarrassment of incorrect reporting as part of the nation’s Foreign Account Tax Compliance Act and Common Reporting Standard obligations. Now it has come to light that that PAN-Aadhaar linkage destroys tax history and makes benami taxpayers indistinguishable from those who have been paying taxes for decades before 2014. A research paper reveals that UID/Aadhaar requirement to issue PAN violates the Income Tax Act that requires the PAN be issued by the Income Tax Officer. It creates a compelling logic for deleting Section 139AA of the Income Tax Act and all acts and rules that have notified the use of UID/Aadhaar. Supreme Court's verdicts Aadhaar Act is yet to be decided further by a yet to be set up 7-Judge Bench because admittedly some gnawing constitutional questions have remained unanswered so far.
Although it has been over 11 years since the UID/Aadhaar project was formally launched and three years have passed since the verdict on the right to privacy was delivered, the promised law to safeguard citizen's right to privacy and data protection has not been enacted as yet.
The estimated total budget of the biometric UID/Aadhaar number project has not been disclosed despite demand for it while seeking cost: benefit analysis. Unless the total estimated budget of the project is revealed, all claims of benefits are suspect and untrustworthy. How can one know about total savings unless the total cost is disclosed?
It is evident that anonymous donors and international financial institutions like the World Bank Group have succeeded in their dataveillance projects to mine national data wealth for surveillance capitalists and their governments in myriad disguises.
Do opposition parties have the political courage to make it an electoral issue in national interest or do they agree with Humpty Dumpty that SURVEILLANCE means “cooperation, partnership, and consultation”?
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