Wednesday, December 31, 2014

Secretary General, Rajya Sabha's ignorance about legislative process on biometric aadhaar

To

Hon'ble Chairman
Rajya Sabha
Parliament of India
New Delhi

Date: December 31, 2014
Subject-Secretary General, Rajya Sabha's ignorance about legislative process on biometric aadhaar

Sir,

I wish to draw your immediate attention towards the recommendations of the Parliamentary Standing Committee on Finance in its report presented to the Lok Sabha and laid it in Rajya Sabha and a Parliamentary Bulletin Part-II dated December 18, 2014 regarding “AADHAAR (UIDAI) enrolment camp which was set up exclusively for the Members of Parliament who have not been enrolled as yet” published under the signature of Secretary General, Rajya Sabha. This seems to be an act of ignorance regarding the legislative process on aadhaar by the Secretary General, Rajya Sabha.  The enrolment camp continued till December 23.  A copy of the Parliamentary Bulletin is attached.

I submit that such exercise of power by the office bearers of Parliament in order to facilitate world’s largest biometric database appears unprecedented. It is likely to be deemed as an act of institutional subversion by the experts of parliamentary processes, conventions and future generations.  The creation of this database is linked to World Bank’s eTransform Initiative with several undemocratic transnational companies and is illegally and illegitimately being linked to electoral database, Census and National Population Register.

I submit that this appears to be aimed at appeasing US President Shri Barack Obama who is the chief guest on the republic day. The republic is apparently being put under surveillance through the universal aadhaar coverage, Shri Obama's interest in aadhaar is quite known. Not surprisingly, President Obama visited an Aadhaar enrolment station in Mumbai in 2010 during his last visit to India. His delegation included the CEO of L1 Identities Solution, then a US MNC (now a subsidiary of Safran Group, a French company with French Govt’s stake in it).

I submit that the URL on Planning Commission’s Unique Identification Authority of India (UIDAI)’s website that provided this news President Obama Visits Aadhaar enrolment station - UIDAI uidai.gov.in/images/FrontPageUpdates/obama_uid/barak_obama.html has been disabled for some reason. Wikileaks had revealed that US agencies are closely monitoring the implementation of the project.

There is the URL about President of the United States of America Shri Barack Obama visiting Aadhaar enrolment station at Innovation Forum http://uidai.gov.in/images/news/obama_uid/barak_obama.html URL, this too has been disabled. Government must explain as to why this URL for Obama’s visit has been disabled. Hopefully, only the URL has been disabled and not the eyes and ears of the republic.

I submit that Shri Srikanth Nadhamuni accompanied Shri Obama when he visited an Aadhaar enrolment station. Nadhamuni was Head of Technology, UIDAI since its inception in 2009, right from conceptual stage to designing and building the biometric based UID system for uniquely identifying residents of India till October 2012. He helped setup the UIDAI’s Technology Centre at Bangalore which has developed the UIDAI system with the help of technology development partners/vendors as well as sabbatical and volunteer members from the corporate sector. He was also member of the eGovernance core committee, Government of Karnataka. It was not clear as to why he left UIDAI midway.

A release of the Press Information Bureau (PIB) on behalf of the Ministry of Parliamentary Affairs stated that Lok Sabha Speaker Smt Sumitra Mahajan inaugurated Aadhaar registration of Members of Parliament in the Parliament House on December 11, 2014. The Speaker got herself registered first by filling the necessary forms and getting photographed. Shri Rajiv Pratap Rudy, Minister of State for Parliamentary Affairs registered for issue of aadhaar.  The camp was organized by the Ministry of Parliamentary Affairs in association with the Secretariats of Lok Sabha and Rajya Sabha from December 11, 2014 till December 17, 2014. Subsequently, it was extended till December 23. 

I submit that Shri Anoop Mishra, Secretary General, Lok Sabha, Shri Afzal Amanullah, Secretary (Parliamentary Affairs) and Shri V.K.Madan, Director General, Unique Identity Authority of India (UIDAI) who is also officiating as the Chairman were present on the occasion of inaugural.

This exercise has made a mockery of the legislative process and the Parliamentary Standing Committee on Finance which 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.” In view of such glaring omissions, the Committee denounced the UID/aadhaar project as `unethical and violative of Parliament's prerogatives' and as akin to an ordinance when the Parliament is in session.
It must be recalled that The National Identification Authority of India Bill, 2010 was introduced in the Rajya Sabha on 3rd December, 2010. The Speaker, Lok Sabha in consultation with the Chairman, Rajya Sabha referred the Bill to the Parliamentary Standing Committee on Finance. The Standing Committee presented the Report to the Lok Sabha and laid it in Rajya Sabha on 13th December 2011.

The Report of Parliamentary Standing Committee on Finance has specifically raised questions about the legality of the collection of biometrics while creating a citizen/resident data base. The Report (in the section on Observations/Recommendations) reads: “The collection of biometric information and its linkage with personal information 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.” 

I submit that the complicity of the senior office bearers of both the Houses of the Parliament indicates that the office bearers are apparently complicit in illegitimate and censured acts of the executive. It is quite bizarre that they undertook this despite knowing the fate of The National Identification Authority of India Bill in both its 2010 and 2013 incarnations. It demonstrates quite an alarming silence of all the legislators in general but especially of those who were members of the Parliamentary Standing Committee on Finance that trashed the aadhaar Bill and the project drawing on global experience from UK, Australia, China, France, USA, Philippines and others. 
In the current context, Section 57 of the rejected aadhaar Bill merits attention because it reveals executive’s intent to take legislative consent for biometric aadhaar and related initiatives for granted. Anything done under the Planning Commission’s notification dated January 28, 2009 that set up the UIDAI “shall be deemed to have been done or taken under the corresponding provision of this Act”. This created a logical compulsion for the legislature to rigorously examine the various activities undertaken by the UIDAI as it is likely to have serious consequences in connection with identification of persons, who the information is handed over to, with whom contracts have been entered, the non-existence of a data protection law, privacy law and its inherent possible structural link with the proposed Human DNA Profiling Identity Bill.  This is significant because the aadhaar Bill did not define biometric data and DNA and voice samples are part of biometric data besides finger prints and iris scan.

It is quite apparent that after central government employees including defence employees, the MPs, it will be the turn of the MLAs, MLCs and other elected representatives of the Panchayati Raj institutions and municipalities to be targeted on priority basis for biometric aadhaar entrapment. 

I submit that now it has been reported by the Economic Times that Unitus Seed Fund (USF) will invest Rs 5 crore in startups that are building products and services based on aadhaar number to be issued to Indian residents. Based in Bangalore and Seattle, Washington, USF is an investment fund that provides seed funding to social enterprise. It plans to launch and support aadhaar based business initiatives. USF is part of Unitus Labs, a micro-credit non-profit organization which is a successor of Unitus Inc. company involved with SKS Microcredit. This initiative of USF is reportedly supported by Khosla Labs which was setup by Vinod Khosla, a Venture Capitalist and Nadhamuni in 2012. Currently, Nadhamuni is the CEO of Khosla Labs. It was not clear as to why Nadhamuni who considers “Aadhaar as important infrastructure as say roads, airports and ports” left UIDAI midway. Perhaps, it is becoming clearer now.

I submit that meanwhile, the 6th Federal Council meeting of the National Federation of Civil Accounts Associations held on 18th and 19th September 2014 in Cochin passed a resolution urging the Government of India to delink the aadhar from the process of implementation of Biometric attendance system and before implementing the new scheme of biometric attendance system in the Central Government Offices.

During a recent visit to Geneva to attend the 3rd UN Forum on Business and Human Rights, I was informed by a German public policy researcher that the real scandal in Germany was not about the phone tapping of German Chancellor Angela Merkel’s by USA’s National Security Agency (NSA, an entity declared unconstitutional by a US District Court).  She underlined that the real scam was that the biometric profile was all the German government and intelligence officials are available with the NSA.

I submit that the 1500 page manifesto titled “2083: A European Declaration of Independence” brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who carried out the heinous attacks on 22 July 2011 by bombing government buildings in Oslo killing his fellow citizens merits study. This manifesto refers to the word “identity” over 100 times, “unique” over 40 times and “identification” over 10 times. There is reference to “state-issued identity cards”, “converts’ identity cards”, “identification card”, “fingerprints”, “DNA” etc. The words in this manifesto give a sense of deja vu.

I wonder what if an exercise similar to the one recommended in the infamous manifesto has an official sanction in the form of biometric aadhaar.  In such a situation, is it inappropriate to wonder that most legislators of all shades are willing to pay any price, mortgage country’s sovereignty and stoop to any level for a photo opportunity with the President of USA because of ignorance.

This is also to draw your attention towards the attached order of the Hon’ble Supreme Court dated March 24, 2014 and the report of the Parliamentary Standing Committee on Finance on biometric aadhaar amidst the demand of 17 eminent citizens led by late Justice V R Krishna Iyer demanding stoppage of the biometric Unique Identification (UID)/aadhaar number and related projects. It demonstrates that all the circulars and orders of Government of India and State Governments are illegal and illegitimate.  

I submit that UID/aadhaar violates human rights, right to privacy as well as other Constitutional rights, the application of UID was admittedly restricted to ‘civilian application’ and but now it has been extended to defence application. The entire information of the citizens and residents is going to be admittedly stored online and on cloud under the Digital India Initiative which will be available to everybody inside and outside the country. The foreign companies like M/s L1 Solutions, a subsidiary of French Conglomerate Safran and Accenture, a US company who are de-duplicating the enrolment at the rate of Rs 2.75 per de-duplication are admittedly storing the biometric and demographic data for 7 years in violation of Hon’ble Court’s order passed on 24.3.2014. In electronic age storage of data even for one minutes by any entity means storage for eternity.  This storage of the biometric data of Indians is not for free. Indian residents and citizens are paying for it at rate of Rs 2.75 paisa per biometric de-duplication and will do so for umpteenth time!     

I submit that the democratic mandate of the last parliamentary elections was against biometric aadhaar. In the absence of robust application of legal mind in the State, the Unique Identification Authority of India (UIDAI) has generated over 70 crore biometric aadhaar numbers of Indian residents although the project does not have the required legal mandate after the proposed National Identification Authority of India Bill, 2010 was trashed by the Parliamentary Committee in its report to the Lok Sabha and Rajya Sabha.

Unmindful of this Central Government's promptness to promote and support aadhaar is coincidentally supported by Shri Mukesh Ambani of Reliance Industries who 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 myriad disguises. 

I submit that before their death 17 eminent citizens including Justice Iyer, Shri K G Kannabiran, noted human rights lawyer and Shri S R Sankaran, noted people’s IAS Officer issued a Statement of Concern against the biometric UID/aadhaar number. The other signatories included Prof Romila Thapar, historian, Justice A.P.Shah, Retired Chief Justice of High Court of Delhi, Prof. Upendra Baxi, noted jurist and ex-Vice Chancellor of Universities of Surat and Delhi,  Trilochan Sastry, Indian Institute of Management, Bangalore and Association for Democratic Reforms (ADR), Bezwada Wilson, leader of Safai Karamchari Andolan and Prof. Jagdish Chhokar, ex- IIM, Ahmedabad, and ADR.

I submit that Justice V. R. Krishna Iyer, a people’s judge of the Supreme Court who passed away on December 4, 2014 in Kochi was opposed to biometric aadhaar and Planning Commission’s UIDAI. Although his views have been endorsed by the Parliamentary Standing Committee on Finance, Supreme Court, Punjab and Haryana High Court and National Human Rights Commission besides European Court of Human Rights, governments of UK, France, Australia, China and Supreme Court of Philippines, the present Bhartiya Janta Party led Government like the previous Congress Party led Government is bulldozing the biometric data based 12 digit UID number branded as aadhaar.

The Statement of Concern reads: “The project that proposes to give every resident a `unique identity number’ is a matter of great concern for those working on issues of food security, NREGA, migration, technology, decentralisation, constitutionalism, civil liberties and human rights. The process of setting up the Authority has resulted in very little, if any, discussion about this project and its effects and fallout. The documents on the UIDAI website, and a recent draft law (the National Identification Authority Bill) do not provide answers to the many questions that are being raised in the public domain. This project is intended to collect demographic data about all residents in the country. It is said that it will impact on the PDS and NREGA programmes, and plug leakages and save the government large sums of MONEY. It would, however, seem that even basic procedures have not been followed before launching on such a massive project.

Before it goes any further, we consider it imperative that the following be done:
•           Do a feasibility study: There are claims made in relation to the project, about what it can do for PDS and NREGA, for instance, which does not reflect any understanding of the situation of the situation on the ground. The project documents do not say what other effects the project may have, including its potential to be intrusive and violative of privacy, who may handle the data (there will be multiple persons involved in entering, maintaining and using the data), who may be able to have access to the data and similar other questions.
•           Do a cost:benefit analysis: It is reported that the UIDAI estimates the project will costs Rs 45,000 crores to the exchequer in the next 4 years. This does not seem to include the costs that will be incurred by Registrars, Enrollers, internal systems costs that the PDs system will have to budget if it is to be able to use the UID, the estimated cost to the end user and to the number holder.
•           In a system such as this, a mere statement that the UIDAI will deal with the security of the data is obviously insufficient. How does the UIDAI propose to deal with data theft? If this security cannot be reasonably guaranteed, the wisdom of holding such data in a central registry may need to be reviewed.
•           The involvement of firms such as Ernst & Young and Accenture raise further questions about who will have access to the data, and what that means to the people of India.
•           Constitutionality of this project, including in the matter of privacy, the relationship between the state and the people, security and other fundamental rights.

Questions have been raised which have not been addressed so far, including those about
•           Undemocratic process: UIDAI was set-up via a GoI notification as an attached office of the Planning Commission without any discussion or debate in the Parliament or civil society. In the year and a half of its inception, the Authority has signed MoUs with virtually all states and UTs, LIC, Petroleum Ministry and many banks. In July, the Authority circulated the draft NIA Bill (to achieve statutory status); the window for public feedback was two weeks. Despite widespread feedback and calls for making all feedback public, the Authority has not made feedback available. Further in direct contravention to the process of public feedback, the NIA Bill was listed for introduction in the Lok Sabha 2010 monsoon session
•           Privacy (It is only now that the DoPT is said to be working on a draft of a privacy law, but nothing is out for discussion even yet)
•           Surveillance: where this technology, and the existence of the UID number, and its working, could result in increasing the potential for surveillance
•           Profiling Tracking
•           Convergence, by which those with access to state power, as well as companies, could collate information about each individual with the help of the UID number.”

It further stated, “National IDs have been abandoned in the US, Australia and the newly-elected British government. The reasons have predominantly been: costs and privacy. If it is too expensive for the US with a population of 308 million, and the UK with 61 million people, and Australia with 21 million people, it is being asked why India thinks it can prioritise its spending in this direction. 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’. Is there a lesson in it for us? In the late nineties, the Supreme Court of Philippines struck down the President’s Executive Order A.O 308 which instituted a biometric based national ID system calling it 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 – UIDAI has been constituted on the basis of a GoI notification and there is a fundamental risk to civil liberties with the convergence of UID…etc.”

The Statement of Concern reads: “The UIDAI is still at the stage of conducting pilot studies. The biometric pilot study has reportedly already thrown up problems especially among the poor whose fingerprints are not stable, and whose iris scans suffer from malnourishment related cataract and among whom the incidence of corneal scars is often found. The project is clearly still in its inception. The project should be halted before it goes any further and the prelude to the project be attended to, the public informed and consulted, and the wisdom of the project determined. The Draft Bill too needs to be publicly debated. This is a project that could change the status of the people in this country, with effects on our security and constitutional rights, and a consideration of all aspects of the project should be undertaken with this in mind.”

It concluded, “We, therefore, ask that the project be halted, A feasibility study be done covering all aspects of this issue, experts be tasked with studying its constitutionality, the law on privacy be urgently worked on (this will affect matters way beyond the UID project), a cost : benefit analysis be done and a public, informed debate be conducted before any such major change be brought in.” 

This is the statement of the same Justice Iyer on whose passing away President Shri Pranab Mukherjee said, “As an eminent jurist, he used law as an instrument of social engineering and social change making justice accessible to all, including the marginalized and the vulnerable. As a judge of the Supreme Court of India, he made immense contribution to the development of human rights jurisprudence. His sad demise leaves a void which is difficult to fill.”

Greeting Justice Iyer on his 100th birthday, Prime Minister, Shri Narendra Modi said, “Legal luminary, philosopher and intellectual, Justice Krishna Iyer is an Institution in himself, who dedicated his life to the Nation. Justice Iyer’s life and works are an inspiration to all of us. My interactions with him have been very enriching. I learnt a lot from him,” But when it comes to following Justice Iyer’s recommendations on biometric aadhaar, the government seems to ignore it and follow the advice of India’s richest man.  

CFCL is involved in the research and advocacy against surveillance technologies since 2010. It has appeared before the relevant Parliamentary Committee that questioned the biometric identification of Indians without any legal mandate.  In the face of such assault on citizens’ rights and the emergence of a regime that is making legislatures subservient to database and data mining companies, the urgent intervention of the progressive political parties, legislators and informed citizens must not be postponed anymore.

In view of the above, CFCL demands that even at this late stage aadhaar and related schemes be halted and await Hon’ble Supreme Court’s final verdict in this regard. Rajya Sabha should seek a white paper on the legality of biometric data collection and work undertaken under the project.

Being a columnist with MoneyLife (www.moneylife.in), a Mumbai based financial magazine and having authored more than 40 articles on the biometric surveillance and identification technologies and having given testimony to Parliamentary Standing Committee on Finance and to the Chairman, Parliamentary Standing Committee on Subordinate Legislation, I will be happy to share more details and documents in this regard.  

In view of the above, I seek your urgent intervention even as the biometric profile of every current and future Indian political leader and official is being stored by foreign governments and companies, yet another act of belittling parliament has been performed with impunity.

Yours faithfully
Gopal Krishna
Citizens Forum for Civil Liberties (CFCL)
Mb: 08227816731, 09818089660
E-mail:gopalkrishna1715@gmail.com
Web: www.toxicswatch.org

Cc
Hon'ble Speaker, Lok Sabha, Parliament of India
Hon'ble Members of Parliament

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