Tuesday, February 4, 2014

President’s name used for signing contracts for illegal biometric UID/aadhaar with foreign intelligence companies

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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