Election Commission’s linking of voter ID with Aadhaar violating Supreme Court’s order on Biometric Aadhaar, UIDAI transferring data to foreign companies

National Intelligence Grid (NATGRID) and Unique Identification Authority of India (UIDAI) are structurally linked 

Highs Courts of Andhra Pradesh, Punjab & Haryana questioned legality of 12 digit biometric aadhaar/unique identification (UID) NUMBER

Supreme Court warns central and state govts against violation of its repeated orders

March 17, 2015: Disregarding Supreme Court’s repeated orders on biometric aadhaar, Election Commission of India has launched its National Electoral Roll Purification and Authentication Programme (NERPAP), 2015 by linking UIDAI’s Aadhaar data with electoral photo identity card (EPIC) database to be completed by August 15, 2015 and its “Know How to link Your Aadhaar Number with Your EPIC Number” by visiting its portal http://eci.nic.in/eci/nvsp.html.  ECI feigns ignorance about privacy concerns about accessing the UIDAI database given the involvement of biometric and surveillance companies of USA, France and other transnational enterprises who are storing and possessing the sensitive personal data of Indians for 7 years as per contract agreements (whose copies have accessed using RTI) in an assault on the sovereignty of citizens and the country. Supreme Court’s bench of Justices J.Chelameswar, S.A.Bobde and C.Nagappan heard the12 digit biometric Aadhaar case on 16th March, 2015 and expressed grave dissatisfaction at defiance of its repeated orders dated September 23, 2013, November 26, 2013 and March 24, 2014. It took cognizance of officials seeking aadhaar. The court asked the Solicitor General of India to write to all chief Secretaries of states to ensure compliance. It asked the Union government to see that there are no violations. It said that if anyone violates it orders it would take severe action including putting violators in jail. The court gave petitioners liberty to file additional affidavits without prior permission of the court and to bring to its notice any violation of its orders. The court also said that it would not accept fait accompli as an argument to retain aadhaar. It has fixed July 13, 215 Monday for next hearing. The hearings would be continuous by the special bench, Monday to Friday. (Election Commission of India’s Press Note and Supreme Court’s order is attached)

It is noteworthy that the court has denied access to biometric information collected by Unique Identification Authority of India (UIDAI) to Central Bureau of Investigation (CBI). The court has said that UIDAI “is restrained from transferring any biometric information of any person who has been allotted the Adhaar number to any other agency without his consent in writing. More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith.”  

In manifest violation of Court’s order, R S Sharma, Secretary, Department of Electronics and Information Technology (DEITY), Ministry of Communication and Information Technology wrote a letter dated August 4, 2014 to the Secretary, Department of Defence Production, New Delhi asking him to introduce Aadhaar enabled Bio Metric Attendance System in the department of defence production for which preparatory steps where to be taken by 10th August, 2014 keeping in view the urgency.  The said letter was sent by Under Secretary, Minister of Defence to DGQA, DGAQA and other departments that Para 2 of the  letter dated 4.8.2014 states that the proposed system would enable an employee with an Aadhaar number to register his/her attendance (arrival/ departure ) in the office through biometric authentication. It also says that a web based application software system will enable online recording of attendance and that the dash board relating to real time attendance and related statistics, can be viewed by everyone.

Taking cognizance of the rampant violation of the Supreme Court’s order, Citizens Forum for Civil Liberties (CFCL) has sent legal notices to the Secretary, DEITY, Secretary, Department of Defence Production, Ministry of Defence, Secretary, Union Ministry of Parliamentary Affairs, Secretary, Union Ministry of Urban Development, Special Secretary, Government of Uttar Pradesh,  Inspector General of Registration, Department of Revenue, Government of NCT of Delhi and Durgapur Steel Plant, Steel Authority of India Limited through its counsel. There are several other departments and authorities who are violating the orders. Legal notices are being sent to them as welle. For instance, the following two orders to violate the court’s order-

http://nrega.nic.in/netnrega/writereaddata/Circulars/944_25_Feb_2015_DFA_ADVISORY-enrollment_under_NPR_for_aadhaar_with_RGI_letter.pdf, http://nrega.nic.in/netnrega/writereaddata/Circulars/937Advisory_expediting_MGNREGA_DBT_300districts.pdf

In violation of court’s order Maharashtra Govt’s Cabinet Resolution makes compulsory Aadhaar for PDS at 52,232 Fair Price Shops at a cost of Rs. 103, 99, 00,000. The resolution is available at: https://www.maharashtra.gov.in/Site/upload/CabinetDecision/English/03-03-2015%20Cabinet%20Decision%20(Meeting%20No%2018).pdf

The notification of March 9, 2015 from Government of NCT of Delhi compels couples to get Aadhaar for getting their marriage registered under the Special Marriage Act. It has also been noted that the Bombay High Court Registrar had recently received an official communication asking him to make Aadhaar mandatory for disbursal of salary to staff and even judges. If this continues, the day is not far when even the present and future judges of the Supreme Court and all the High Courts and lower courts will be compelled to get themselves biometrically profiled for Aadhaar.  

CFCL has been working on the issue of Unique Identification (UID) Number branded as “Aadhaar”. It had also appeared in front of Parliamentary Standing Committee on Finance which examined the National Identification Authority of India Bill, 2010 and trashed it on several counts including UIDAI’s questionable exercise of collection of biometric data without any legal mandate. Secretary, DEITY has sent similar letters to all the ministries and departments of central government. It is quite bizarre that it has not even spared National Human Rights Commission, which had given its submission before the Parliamentary Standing Committee on Finance.  

Aadhaar violates human rights, right to privacy as well as other Constitutional rights, the application of Aadhaar was admittedly restricted to ‘civilian application’ and was not allowed in defence application. The entire information of the employees working in the department of defence production, which will include related statistics, will be stored online and on cloud will be available to everybody. Besides application of biometric aadhaar in the Department of defence production not being in national interest making it available to everyone and on the cloud, including to the foreign companies like M/s L1 Solutions and Accenture violating the court’s order.

It is quite sad that legal minds in the States have not informed their chief ministers about the grave ramifications of aadhaar. It is quite strange that so far States have failed to defend erosion of their autonomy because of centralized databases of biometric data and in resisting the illegitimate advances of the social control technologies. Citizens and States must note that it is not a question of aadhaar number being voluntary or mandatory, which seems to be getting the focus, it is a question of citizens being turned into subjects using illegal and illegitimate biometric Aadhaar number which is quite well documented.

States and citizens have failed to appreciate that “several countries including the US, the UK, Australia, China, Canada and Germany have tried such projects but aborted them midway as impractical. The US –arguably the most surveillance prone society in the world – passed a Federal law requiring the States to allow the Federal Department of Homeland Security to access State databases such as drivers’ licences and motor vehicle registration but failed to implement the same.”

The Supreme Court is hearing the cases which have been filed by former judges, former general, defence scientists and social workers. These include Justice (retd) K S Puttaswamy, former judge of Karnataka High Court, Major General Sudhir Vombatkere, Col. Mathew Thomas, Aruna Roy among several others. The cases which have been filed in High Courts against biometric aadhaar has been transferred and been clubbed with this case.  

On March 10, 2015, Ministry of Home Affairs informed the Lok Sabha that “The (National Intelligence Grid) NATGRID and Unique Identification Authority of India (UIDAI) have not been declared as Intelligence Agencies”. It is evident that this reply is cleverly worded. The fact is that both are interlinked and both are functioning without any legal framework and parliamentary scrutiny. This information was shared in reply to a question by Dr. Shashi Tharoor. The fact is that they are functioning as part of intelligence agencies. When media had asked UIDAI chief about its link with intelligence agencies, he had responded saying, “No comments.” Industry documents have unequivocally established that both UIDAI and NATGRID are linked. In fact, UID policy was first adopted by US Department of Defence followed by NATO. In a related development Pakistan is making biometric identification mandatory for purchase of sim cards for mobiles. The data which was collected by Pakistan’s National Database Registration Authority (NADRA) was transferred to US agencies according to Wikileaks. It is also apprehended that the foreign companies which are involved in Pakistan’s biometric identification program are also involved in India’s biometric aadhaar program.      

It may be recalled that after submitting 3.57 crore signatures against Aadhaar/UID to the Prime Minister on March 14, 2012. Parliamentary Standing Committee on Finance in its report placed before Parliament on December 13, 2011 observed that UID/Aadhaar project has been conceptualized “with no clarity of purpose” and “directionless” in its implementation, leading to “a lot of confusion”. The Standing Committee also observed that while framing of relevant law is under way, the continuance of the project is “unethical and violation of Parliament’s prerogatives”. The collection of biometric and personal data and issuing of UID numbers do not have any statutory sanction until the Bill is passed by Parliament. In the absence of a Constitutional provision or legal framework, all the actions of the UIDAI are technically unconstitutional and illegal. It must be recalled that meanwhile, a Division Bench of the Andhra Pradesh High Court comprising Chief Justice Kalyan Jyothi Sengupta and P.V. Sanjay Kumar passed an order on November 21, 2013 that Aadhaar cannot be made mandatory. Punjab and Haryana High Court bench headed by Chief Justice A K Sikri had passed an order March 2, 2013 after hearing a matter challenging a circular making UID number mandatory. The moment Court raised questions of laws, the circular was withdrawn by the central government. The decision underlined that UIDAI is legally assailable and indefensible. Supreme Court order vindicates the Punjab and Haryana High Court order, report of the Parliamentary Standing Committee on Finance and the Statement of Concern dated September 28, 2010 issued by 17 eminent citizens including late Justice VR Krishna Iyer, Prof Romila Thapar, late SR Sankaran, Justice AP Shah, late KG Kannabiran, Bezwada Wilson, Aruna Roy and Prof Upendra Baxi seeking halting of the project. The Parliamentary Standing Committee on Subordinate Legislation is also seized with the compliant dated 18.3.2013 on how Subordinate Legislation for Biometric Identity is illegal & illegitimate and constitutional, legal, historical & technological reasons against UID number scheme.

Those members of the Union Cabinet who are guilty for passing on the data of Indians to foreign biometric and surveillance companies must be censured and held liable and accountable by the Parliament and State legislatures.

For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 09818089660, 08227816731, E-mail:gopalkrishna1715@gmail.com