Supreme Court heard
arguments on the illegality of UIDAI and biometric aadhaar number
Foreign funds received by
political parties seems to dictate their position on biometric databases
average
cost per biometric UID/aadhaar is estimated to be Rs 130, for 60 crore Indian
residents approx. cost is Rs 7800 crore
Like
Ministers, Standing Committee on Finance is yet to realize UID/aadhaar is an
identifier number, not an identity card
February 4, 2014: The Supreme Court
heard the case challenging the legality of Unique Identification Authority of
India (UIDAI) for collection of biometric data and demographic data of
residents of Indian in order to create a Central Identities Data Repository
(CIDR) of 12 digit biometric unique identification (UID)/aadhaar number on
February 4, 2014.
Be it Delhi, Maharashtra, Assam,
Tamil Nadu or Gujarat, State’s failure to tame violence based on parochial
regionalism, casteism and communalism does not inspire confidence. The plight
of migrant students and workers across the country is a chilling reminder. In
such a context, State cannot be trusted with the centralized database of
personal sensitive information of residents and citizens of India. This entails
end of privacy and security of sovereign citizens in the way Nazi party of
Germany had envisaged.
State has failed to stop violence against
compatriots from North-Eastern states in Delhi and north Indians in Assam.
The Contempt Petition (Civil) No.
144/2014 besides Writ Petition (Civil) No. 494 of 2012, W.P(C) No. 829 of 2013,
W.P. (C) No. 932/2013, T.C. (C) No. 152/2013, T.C. (C) No. 151/2013 and W.P. (C)
No. 833/2013 was listed for hearing in the Supreme Court. Ministry of
Petroleum, its oil companies and Congress ruled States have committed contempt
by making aadhaar mandatory despite Court’s order of September 23, 2013 and
November 26, 2013. So far some 10 States including Rajasthan have filed their
affidavits in the Court.
Planning Commission’s
notification dated January 28, 2009 created UIDAI for creating CIDR in order to
collate it with MHA’s National Population Register (NPR). Once collated both
CIDR of 60 crore and NPR of 61 crore residents of India will become one
database of unique identification (UID) numbers which is branded and advertized
as ‘aadhaar’ number. The name aadhaar does not feature in the notification that
created UIDAI.
When the very legal basis of
Unique Identification Authority of India (UIDAI) has been challenged, Article
73 of the Constitution of India has been invoked by Government of India to defend
the creation of UIDAI and its functions.
The report of the
Parliamentary Standing Committee on Finance on The National Identification
Authority of India Bill submitted to both the Houses of the Parliament notes,
“On being asked about the legal basis under which the UIDAI is functioning at
present, and the mechanism that the UIDAI has adopted, since its inception, to
deal with any of the issues like security and confidentiality of information
and other offences related to issue of the aadhaar numbers, the Ministry of
Planning in a written reply have inter-alia stated that:- ―….The matter about
commencement of operation of the UIDAI before a legal framework was put in
place was referred to the Ministry of Law & Justice wherein opinion was
sought on the issue whether in absence of a specific enabling law, would there
be any constraints in collecting the data (including biometrics) and in issuing
the UID numbers to residents in accordance with the mandate given to the
Authority. The Ministry of Law & Justice, after examining the matter, had
mentioned that it is a settled position 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 specific legislation. It had also been opined that
till the time such legislation is framed the Authority can continue to function
under the executive order issued by the Government and the scheme that may be
prepared by the UIDAI. It was also opined that the Authority can collect
information/data for implementation of the UID scheme. Such implementation can
be done by giving wide publicity to the scheme and persuading the agencies/individual
to part with necessary information. The UIDAI has not faced issues such as
breach of security and confidentiality, manipulation of biometrics,
unauthorized access to the CIDR or other related offences since its
inception…..till the time Parliament passes the Bill, these matters will be
covered by the relevant laws.”
The parliamentary report
records “the opinion of the Attorney-General of India on the above mentioned
issues as obtained by the Ministry of Law & Justice (Department of Legal
Affairs) is furnished below:- ―The competence of the Executive is not limited
to take steps to implement the law proposed to be passed by Parliament.
Executive Power operates independently. The Executive is not implementing the
provisions of the Bill. The Authority presently functioning under the Executive
Notification dated 28th January, 2009 is doing so under valid authority and
there is nothing in law or otherwise which prevents the Authority from
functioning under the Executive Authorisation. The power of Executive is clear
and there is no question of circumventing Parliament or the Executive becoming
a substitute of Parliament. On the contrary, what is sought to be done is to
achieve a seamless transition of the authority from an Executive Authority into
a statutory authority. All the
expenditure which is being incurred is sanctioned by Parliament in accordance
with the financial procedure set forth in the Constitution. If the Bill is not
passed by any reason and if Parliament is of the view that the Authority should
not function and express its will to that effect, the exercise would have to be
discontinued. This contingency does not
arise. The present Bill being implemented without Parliaments‘approval does not
set a bad precedent in the Parliamentary form of Government. On the contrary,
the fact that the Authority is sought to be converted from an Executive
Authority to a statutory authority, it underlines the supremacy of Parliament.”
Contrary to the opinion of
the Attorney-General of India, the contingency has arisen because the Bill was
trashed and has not been passed. Clearly, Attorney-General has been found on
wrong foot again.
The Attorney-General of
India, Ministry of Law & Justice and Ministry of Planning have erred in
defending the indefensible act of creation of UIDAI, the Supreme Court has held,
in Dr. D.C.Wadhwa & Ors. Vs. State
of Bihar & Ors (AIR 1987 SC 579), that the executive cannot take away
the 51 functions of the legislature. The relevant observations, made in this
regard, read as under:
“….The law making function
is entrusted by the Constitution to the legislature consisting of the representatives
of the people and if the executive were permitted to continue the provisions of
an ordinance in force by adopting the methodology of re-promulgation without
submitting it to the voice of legislature, it would be nothing short of
usurpations by the executive of the law making function of the legislature. The
executive cannot by taking resort to an emergency power exercising by it only
when the legislature is not in session, take over the law making function of
the legislature. That would be clearly subverting the democratic process which
lies at the core of our Constitutional Scheme, for then the people would be
governed not by the laws made by the legislature as provided in the
Constitution, but, by the laws made by the executive. The government cannot
bypass the legislature and without enacting the provisions of the Ordinance
into Act of legislature, re-promulgate the Ordinance as soon as the legislature
is prorogued….It is settled law that a constitutional authority cannot do
indirectly what it is not permitted to do directly. If there is a
constitutional provision inhibiting the constitutional authority from doing an
act, such provision cannot be allowed to be defeated by adopting of any
subterfuge. That would be clearly a fraud on the Constitution…..”
The Supreme Court, in Ram Jawaya Kapur vs State of Punjab (AIR
1955 SC 549), while dealing with an argument of violation of fundamental
rights, observed that ordinarily, the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions are
taken away. It observes that our Constitution does not contemplate assumption,
by one organ or part of the State, of functions that essentially belong to
another and that Executive can, indeed, exercise the powers of departmental or
subordinate legislation, when such powers are delegated to it by the
Legislature. It cautioned that if, by the notifications and acts of the
executive Government, the fundamental rights have been violated, then, such
executive actions have to be termed as unconstitutional.
The executive powers of the
State are to fill up the gaps and not to act as an independent law making
agency inasmuch as the function of enacting law, under our Constitution, lies
with the Legislature and the Executive has to implement the policies/laws made
by the Legislature and if the State is permitted to take recourse to its
executive powers to make laws, then, we would be governed by the laws not made
by the Legislature, but by the Executive.
As held by the Supreme
Court, in the case of Chief Settlement
Commissioner v. Om Prakash (AIR 1969 SC 33), the notion of inherent and
autonomous law making power, in the executive administration, is a notion that
must be emphatically rejected. This is the notion Congress led Rajasthan
Government is advancing. On the issue of “Lack of competence of Executive to
implement Aadhaar Scheme in absence of legislation or when legislation is being
contemplated by t he Parliament”, Ashok Gehlot led Rajasthan Government filed
the affidavit on December 5, 2013 submitting, “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.”
A reading of the
notification of the Planning Commission to set up the UIDAI would make it
evident that it does not reflect the source of executive power. Since it is
found that the notification, which created the UIDAI, is not an act of
delegated legislation, the notification cannot be deemed to be law. Even perusal of the available records makes
it clear that the notification was neither produced before the President of
India nor did it ever receive the assent of the President of India. Hence,
strictly speaking, the notification, in question, cannot even be termed as the
decision of the Government of India. But
contract agreements have been signed with transnational surveillance,
intelligence and identification companies by UIDAI in the name of the President
of India although President’s assent has not been taken. These companies are admittedly keeping data
of residents of India for 7 years. Does it serve the interest of Indians?
As per the notification that
set up the UIDAI, it has the responsibility to lay down plans and policies to
implement the UID scheme, which would include giving UID numbers to residents,
interlinking UID with partner databases on a continuous basis, to keep the
database updated, and "take necessary steps to ensure collation of NPR
with UID (as per approved strategy)." UIDAI is also supposed to
"identify new partner/user agencies", to "issue necessary
instructions to agencies that undertake creation of databases and to “enable
collation and correlation with UID and its partner databases." The
notification states that the Planning Commission is the nodal agency and the
UIDAI “shall own and operate the database."
It may be recollected that
at a talk on UID number delivered at the World Bank on 24 April 2013, Nandan
Nilekani, the Cabinet Minister responsible for UIDAI said, “First of all, this
is not an ID card project. There is no card. There is a number. It's a virtual
number on the cloud, and we don't give a physical card. We do send you a
physical letter with your number, which you keep in your pocket, but the real value of this is the number on the
cloud."
Did President of India and Planning
Commission or any agency or the legislature allow storage of biometric database
being created on the cloud? Is such overreach permissible? Has its ramification
for security of the country and citizens been looked into?
The question as to who owns
and manages the database of biometric numbers on the cloud and whether the
owner/manager is subject to the jurisdiction of Indians laws remains
unexplained. It may be noted that IBM, a US company is deemed the original company
with expertise in cloud computing. This involves ability of remote machines of
some company to process even complex data analysis programs and shift workload
from local in house machines. It is the computer networks that create cloud-a
virtual space. It decreases demand for more space for hardware and software on
the user's side by using cloud computing system's interface software. It is
akin to a web browser. Our e-mail program, its software and storage for the
mail account is on a computer cloud, for instance. In 2007, IBM announced a
partnership with Google to promote cloud computing in universities. Hasn’t
Edward Snowden’s disclosures revealed that even the emails of heads of states
have been compromised? Have drawbacks like database security, sale of personal
sensitive information and the ulterior motives of Big Data companies been
examined? Besides it is not clear what is getting encrypted on the cloud and
what is in the commons. Big data from developing countries which are gullible
and myopic is easily accessible. Does this hold true for advanced countries as
well? What was copyrighted in the earlier is increasingly being encrypted in
the unfolding era. Is it irrelevant to
recollect the role of IBM in facilitating holocaust in Germany in this context?
With the emergence of database like CIDR and NPR, is it farfetched to apprehend
a similar situation in India with the help of Nazi party like political formations.
Earlier, Parliamentary Standing
Committee (PSC) on Finance in its most recent report has asked Government of India to issue instructions to
State Governments and to all other authorities that 12 digit biometric Unique Identification (UID)/aadhaar number should
not be made mandatory for any purpose. Meanwhile, Mukesh Ambani, the
tycoon has come out in support of biometric identification providing explicit
signal to all those political organizations, media, voluntary and academic
organizations who are directly or indirectly dependent on him for
donations.
The Seventy Seventh Report of the
31 member Parliamentary Standing Committee (PSC) on Finance reads, “Considering
that in the absence of legislation, Unique Identification Authority of India
(UIDAI) is functioning without any legal basis, the Committee insisted the
Government to address the various shortcomings/issues pointed out in their
earlier report on 'National Identification Authority of India Bill 2010' and
bring forth a fresh legislation.” It was presented to the Speaker on 18
October, 2013 upon authorization by the PSC by Yashwant Sinha, the
Chairman of the PSC. This was ahead of the
resolution passed by West Bengal Assembly on December 2, 2013 against aadhaar
related program. Legislators in the Assembly referred to the PSC report of
January 2011 trashing aadhaar. More and more state assemblies are expected to do
the same.
Irregularities
committed by the illegal UIDAI has been dealt with from page no. 11 to 14 of
this Report
of the 31 member Parliamentary Committee on action taken by Government on the
recommendations contained in the Sixty Ninth Report of the Committee (Fifteenth
Lok Sabha) on Demands for Grants (2013-14) of the Ministry of Planning. The PSC report observes, “the total budgetary
allocations made for UIDAI since its inception upto (Budget Estimates) BE 2013-14 is Rs 5440.30 crore, out of
which Rs. 2820.30 crore has been utilized upto 31.03.2013 and the remaining
amount of Rs. 2620 has been allocated in BE 2013-14. The Ministry have informed
that the average cost per card is estimated to range from Rs 100 to Rs 157.
Taking the average cost per card to be Rs. 130, the total expenditure
for issue of 60 crore cards is estimated to about Rs 7800 crore. Thus, the
expected requirement of funds during 2013-14 is Rs. 4979.70 crores, whereas
only Rs. 2620 crore has been kept for BE 2013-14, which is thus grossly
inadequate.” Indeed none of the claims of UIDAI not add up and illustrate a
case of inconsistency and breach of trust by the cabinet minister for UIDAI who
is wearing countless hats without oath of office and secrecy. It is also strange
that Parliamentary Standing
Committee on Finance is yet to realize that UID/aadhaar is a number, not a card.
Meanwhile, in an interesting
development, Mukesh
Ambani of Reliance Industries has expressed his support for biometric
identification saying, “Aadhaar, an initiative of Unique Identification
Authority of India, will soon support the world’s largest online platform to
deliver government welfare services directly to the poor.” He has written this
in a chapter titled ‘Making the next leap’ endorsing biometric profiling based
identification in the book ‘Reimagining India’ edited by McKinsey & Company
published by Simon & Schuster in November 2013. This appears to be an
explicit signal to the political parties and media houses who receive direct
and indirect corporate donations from companies as their clients in various disguises
and under the new Companies Act, 2013.
Coincidentally,
the cover story of Forbes India magazine features “Rohini & Nandan
Nilekani: The Conscious Givers” (Seema Singh, Dec. 13, 2013 issue) for having
own Outstanding Philanthropist award 2013. This was in recognition of couple’s
work. It may be noted that Rohini Nilekani funds both right-wing Takshashila Institution
and left-leaning Economic and Political Weekly besides Association for
Democratic Reforms, PRS Legislative Research and IndiaSpend, a data journalism
initiative and The Hoot besides running her own Arghyam Foundation, a NGO. It
may be recalled that Nandan Nilekani has been on the board of Reuters. Most media
houses have been guilty of indulgent reporting about biometric identification.
This can easily be proven with content analysis.
Amidst the machinations
of ID Card cartels and their coalition of national and transnational allies, examination
of UIDAI’s legality creates situation for the Supreme Court to recall its
earlier judgments about the power of the Government under Article 73. The Constitution
of India has ensured that ours is a limited Government, not an unlimited
Government Indian National Congress led Government would like to have through
centralized databases at the behest of party’s national and transnational donors.
Whether or not foreign
funds received by political parties like Congress, BJP and Aam Aadmi Party
influence their stance on online electronic and biometric databases of Indians also
merits examination.
For Details: Gopal Krishna, Member, Citizens Forum for Civil Liberties
(CFCL), Mb: 08227816731, 09818089660, E-mail:gopalkrishna1715@gmail.com
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