Like NCTC, Biometric UID/Aadhaar too should not happen without legislation

Appeal made at Bangladesh Bharat Pakistan People's Forum (BBPPF) Meet to boycott biometric identification

Imran Khan informed of theft of Pakistan’s biometric UID database by Wikileaks founder  

Information on Aadhaar enrolment status of Cabinet Ministers, MPs, Nilekani, Ahluwalia denied

How many Bihar ministers, MLAs and MLCs have enrolled for Aadhaar?

Privacy under grave threat, UIDAI preparing the platform for NCTC and NATGRID

Aadhaar is not mandatory, Punjab and Haryana High Court bench

Patna/New Delhi June 11, 2013: While Bihar Chief Minister’s call for legislation for National Counter Terrorism Centre (NCTC) at the conference of chief ministers on internal security in New Delhi has merit but it is strange that Bihar Government has signed a legally questionable Memorandum of Understanding with Unique Identification Authority of India (UIDAI), Planning Commission to implement biometric data based Unique Identification (UID)/Aadhaar Number scheme without any legal and constitutional mandate. It is an admitted fact that UID/Aadhaar is linked to NCTC and National Intelligence Grid (NATGRID.) Both are two ends of the same rope.

In such a situation, how can the UID/Aadhaar be implemented in Bihar and other States when Parliamentary Standing Committee on Finance has rejected the National Identification Authority of India Bill, 2010 that was meant to legitimize the UIDAI.

Bihar Chief Minister has rightly argued that "If the Centre still considers it expedient to form an organisation like NCTC, then it should be done through legislation in Parliament which will ensure a wider debate over the subject." CFCL demands to know as to why the same logic should not apply in the case of the implementation of UID/Aadhaar Identifier Number scheme which is being undertaken without legislation.

In a significant development, Aadhaar enrolment status of Cabinet Ministers, MPs, Nilekani under RTI has been denied. The reply is attached. Citizens Forum for Civil Liberties (CFCL) demands to know as to how many Bihar ministers, MLAs and MLCs have enrolled for illegitimate and illegal Aadhaar. If they have not enrolled why are they not informing the citizens of the State about the reasons of their refusal to enrol for biometric identification.

CFCL which had given testimony to the Parliamentary Committee demands that Bihar Government should put a stay on the execution of the UID/Aadhaar related projects in the state following the grave concerns expressed by eminent citizens, former judges and academicians besides the Parliamentary Committee.

Speaking at a meeting of Bangladesh Bharat Pakistan People's Forum (BBPPF) on June 9, 2013, Gopal Krishna of CFCL which has been campaigning against emergence of a surveillance state, appealed for boycott of biometric identification through UID/Aadhaar. Mahtma Gandhi had opposed a similar project in South Africa. CFCL had given testimony to the Parliamentary Committee that rejected the UID Bill.

It is germane to note that Wikileaks founder in an interview with Imran Khan that Pakistan’s version of biometric exercise for identity card was completed and their database has been handed over to US Government.

In an interview Julian Assange, founder of WikiLeaks informed Imran Khan about the grave act of omission and commission saying, “we discovered a cable in 2009 from the Islamabad Embassy. Prime Minister Gilani and Interior Minister Malik went into the embassy and offered to share NADRA – and NADRA is the national data and registration agency database. The system is currently connected through passport data but the government of Pakistan is adding voice and facial recognition capability and has installed a pilot biometric system as the Chennai border crossing, where 30,000 to 35,000 people cross each day. This NADRA system, that is the voting record system for all voters in Pakistan, and a front company was set up in the United Kingdom – International Identity Services, which was hired as the consultants for NADRA to squirrel out the NADRA data for all of Pakistan. What do you think about that? Is that a…? It seems to me that that is a theft of some national treasure of Pakistan, the entire Pakistani database registry of its people.” The interview is available at http://worldtomorrow.wikileaks.org/episode-10.html  

Speaking at BBPPF Meet, Dr Sunilam, a senior socialist leader and former legislator from Madhya Pradesh endorsed the call for boycott of and denounced the aadhaar like schemes which facilitates tracking and profiling in the way it was done in Germany by the Nazi party that led to holocaust.     

Disregarding such gnawing concerns, central government’s disdain for the law has been characterized by Yashwant Sinha headed Parliamentary Standing Committee as `unethical and violative of Parliament's prerogatives'. Citizens have been protesting against the biometric data based UID and National Population Register (NPR) project across the country from the very outset. By now it is clear that it is an unnecessary project which must be stopped.

Earlier, on June 2, 2013, Aruna Roy, former member, National Advisory Council (NAC) questioned the legality of UID/Aadhaar number during her lecture at A N Sinha Institute of Social Studies, Patna and asserted that it is one of the biggest mistakes this country is making i.e. linking Aadhaar to welfare delivery.

The Parliamentary Standing Committee on Finance considering the National Identification Authority of India (NIDAI) Bill, 2010 presented its report to the Parliament on December 13, 2011. The report rejects 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'. Yet, the UIDAI has gone on with the exercise.

There is no data protection law in place. Even though the government had recognised the need for a law to deal with security and confidentiality of information, imposition of obligation of disclosure of information in certain cases, impersonation at the time of enrolment, investigation of acts that constitute offences and unauthorised disclosure of information, the UID/aadhaar project has been allowed to march on without any such protection being put in place.

In a significant development, a day long dharna on May 29, 2013 on Bhagat Singh Chowk, near Gandhi Maidan, Patna comprising of leaders and participants from nine minority communities of Sikh, Christian, Jain, Bengali, Buddhist and Muslims wherein an appeal was made by CFCL to boycott UID/Aadhaar else all kinds of minorities including political minorities will get profiled and tracked through biometric identification.

It is noteworthy that in a reply in the Lok Sabha on August 24, 2011, Union Minister of State for Planning, Science & Technology and Earth Sciences informed the Parliament about the commencement of operation of Unique Identification Authority of India (UIDAI) before the enactment of the National Identification Authority Bill, 2010. He categorically stated, “The Attorney General (AG) has opined that the UIDAI could continue with its work till the enactment of the Bill.”

Since the minister has assured the Parliament based on the legal opinion of the Attorney General that the “UIDAI could continue with its work till the enactment of the Bill”, given the fact that the Parliamentary Standing Committee on Finance has rejected the National Identification Authority of India Bill, 2010 questioning the legality of UIDAI, UID/Aadhaar project and the act of subordinate legislation for biometric data collection, there is no legal basis for the continued work of the UIDAI.

Attorney General’s opinion provided defense of UIDAI’s work only till the enactment of the Bill. Now this defence too now stands exhausted. It is also a fact that the Attorney General’s legal opinion in general has been under cloud and has been facing the flak of the Hon’ble Supreme Court.

On February 11, 2011, Nandan Nilekani, Chairman, UIDAI and Shri R.S. Sharma, Director General, UIDAI (currently Chief Secretary, Government of Jharkhand) besides the officials of Union Ministry of Planning had appeared before the Parliamentary Standing Committee on Finance.

The NIDAI Bill was introduced on December 3, 2010 in the Rajya Sabha was meant for legalizing and legitimizing the ongoing work done by Planning Commission’s UIDAI since January 28, 2009 as is evident from clause 57 of the Bill. The rejection of the Bill reveals that UIDAI officials could not defend the legally indefensible work on UIDAI without statutory status. Since this provision along with the Bill has been rejected the UIDAI itself has become legally indefensible.  

The Bill stated that it was meant to “to provide for the establishment of the National Identification Authority of India for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals and manner of authentication of such individuals to facilitate access to benefits and services to such individuals to which they are entitled and for matter connected therewith or incidental thereto.” The Bill did not define “to certain other classes of individuals”.

In the matter of now rejected 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 UID/Aadhaar Number has dangerous ramifications is quite relevant in this regard. NHRC’s view was presented to the Parliamentary Standing Committee (PSC) on Finance. The PSC submitted its report to the Parliament.

Echoing NHRC’s view on “need for protection of information” and “the possibility of tampering with stored biometric information” in paragraph 5 (page no. 7 of the NHRC newsletter) and “disclosure of information in the interest of national security” mentioned in paragraph 9 (page no.8 of the newsletter), the Central Government’s Approach Paper for Legislation on Privacy dated October 13, 2010 admits, “India does not currently have a general data protection statute” as per information received from Union Ministry of Personnel, Public Grievances and Pensions through Letter Reference No.071/1/2010/-IR dated October 18, 2010.

On UID Number, the Approach Paper on Privacy Bill stated, “Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralized manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage. However, all this is likely to change with the implementation of the UID Project. One of the inevitable consequences of the UID Project will be that the UID Number will unify multiple databases. As more and more agencies of the government sign on to the UID Project, the UID Number will become the common thread that links all those databases together. Over time, private enterprise could also adopt the UID Number as an identifier for the purposes of the delivery of their services or even for enrolment as a customer.” The Approach Paper on Privacy Bill discloses, “Once this happens, the separation of data that currently exists between multiple databases will vanish.” This poses a threat to the identity of citizens and the idea of residents of the state as private persons will be forever abandoned.

In their testimony before the Parliamentary Standing Committee on Finance on June 29, 2011, Shri Rajiv Sharma, Secretary General, NHRC, Shri A.K. Garg, Registrar (Law), NHRC and Shri J.P. Meena, Joint Secretary (P&A), NHRC expressed their concerns. The report presented to the Parliament on December 13, 2011 records, “The Committee heard the representatives of the National Human Rights Commission on “The National Identification Authority of India Bill, 2010”. The major issues discussed during the sitting broadly related to nature, objective and beneficiaries of aadhaar number; possible discrimination and specific provisions that are required to be built in; safeguards needed for securing the stored information by the proposed National Identification Authority of India; implications of the provisions of the Bill on the individual‘s right to privacy, etc.”

In a setback to efforts to bulldoze UID and related schemes, following the direction issued to the Union of India and Union Territory of Chandigarh by Punjab and Haryana High Court in the matter of Civil Writ Petition 569 of 2013 filed in the High Court against Union of India and others, the Executive Order for making Unique Identification (UID)/Aadhaar mandatory has been withdrawn.

In its order the Punjab and Haryana High Court bench of Justice A K Sikri, Chief Justice and Justice Rakesh Kumar Jain dated February 19, 2013 had not noted that the petition “raises a pure question of law.” Since the Executive Order was withdrawn, the case too was disposed of March 2, 2013 with a two page order.  The Order observes, “In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards." It is further observed in the order that “Second issue raised in this petition is that vide order dated 5.12.2012, respondent No.3 i.e. Deputy Commissioner, U.T., Chandigarh has given directions to the Branch

In charge Registration-cum-Accountant, office of Registering & Licensing Authority, Chandigarh not to accept any application for registration of vehicle and grant of learner/regular driving licence without UID card.” 

Such attempts to make UID/Aadhaar have emerged as an act of bullying by the government agencies.

The petition before the Parliamentary Standing Committee on Subordinate legislation draws attention towards how all the residents and citizens of India are being made subordinate to prisoner’s status by the ongoing collection of their “biometric information” that includes finger prints, iris scan for permanent storage in a Centralized Identities Data Register (CIDR) and NPR. This is being done ‘as per an approved strategy” by Planning Commission and Union Ministry of Home Affairs without any legal mandate. CFCL demands that State Government should dissociate itself from UIDAI and related biometric identification exercises besides resisting attempts to erode State’s autonomy through entities like NCTC and NATGRID. Bihar Government should oppose efforts underway to link UID/Aadhaar with voter identity cards.     

For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 8227816731, 09818089660, E-mail: gopalkrishna1715@gmail.com