Biometric profiling based Aadhaar is against basic structure of the Constitution

Supreme Court's order underlines why States & other agencies must abandon MoUs with illegal & illegitimate UIDAI & aadhaar 

Aadhaar promoting biometric casteism and brahmanism

A larger Constitution Bench to be constituted for final hearing on the unconstitutionality of aadhaar

16th October, 2015: A Supreme Court bench of 5 judges, Chief Justice of India H L Dattu, M.Y. Eqbal, C. Nagappan, Arun Mishra and Amitava Roy heard the case of 12 digit biometric aadhaar identification number project and passed the order on 15th October. After hearing the 12 digit biometric aadhaar number case, Supreme Court’s Bench ruled that “We impress upon the Union of India that it shall strictly follow all the earlier orders passed by this Court commencing from 23.09.2013."

In this regard Supreme Court’s order of 24th March, 2014 in the Unique Identification Authority of India (UIDAI) Vs Central Bureau of Investigation (CBI) Case is most categorical as it leaves no room for ambiguity. This order dated 8th December, 2014 has been relied upon by Central Information Commission (CIC) to give its decision in File No.CIC/SS/A/2014/000518. Its decision is available at http://rti.india.gov.in/cic_decisions/CIC_SA_A_2014_000518_M_143631.pdf

Supreme Court bench of 5 judges reiterated, "We will also make it clear that the Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this Court one way or the other." The Court has issued repeated directions since 23^rd September, 2013 till 16th October, 2015 to this effect.

On 11th August, 2015, the Court had directed that "Union of India shall give wide publicity in the electronic and print media including radio and television networks that it is not mandatory for a citizen to obtain an Aadhaar card; The production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen”. This has not been complied with in letter and spirit.

Taking note of these court orders of Supreme Court, it is high time states and other agencies unsigned the MoUs they have signed with illegal and illegitimate Unique Identification Authority of India (UIDAI). To begin with states ruled by opposition parties should pave the way instead of waiting for the court to tell them. 

Countries where rule of law prevails, MoUs are subservient to law of the land.

Notably, this biometric profiling based identification project has been rejected in UK, USA, Australia, China, France and others.

This means that central and state governments are under compulsion to stop the structural seeding of aadhaar numbers in the databases with immediate effect. States and other agencies must abandon MoUs with illegal & illegitimate UIDAI & aadhaar.

It must be recalled that ahead of the launch of 12 digit biometric unique identity number (aadhaar) in September 2010, the attached statement of concern was issued by 17 eminent citizens led by late Supreme Court judge, Justice V R Krishna Iyer, Prof. Upendra Baxi, noted Jurist and Justice A P Shah, current Chairman, Law Commission of India and former Chief Justice of Delhi High Court and Madras High Court urging the government to stop this project because of undemocratic process, absence of cost: benefit analysis, questionable constitutionality, absence of privacy law, surveillance, profiling, tracking and convergence. As its follow up in August, 2015, Concerned Citizens issued the attached Public Statement against biometric profiling.  

 

It is noteworthy that biometric profiling is an act of surveillance which is a “shameful act” of supervising and imposing discipline on a subject through a hierarchized system of policing. (Michel Foucault, 'Discipline and Punish: The Birth of the Prison', New York, 1977). In this seminal work Foucault examines the systems of social power through the lens of the 18th century philosopher Jeremy Bentham, the originator of the now iconic Panopticon. This Panopticon was/is a design for a prison in which the inmate’s cells are arranged in a circular fashion around a central guard tower. The architectural configuration allows for a single guard’s gaze to view all inmates, but prevents those inmates from knowing exactly when they are being watched. It has been observed that “The major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.” This design as a “generalized model of functioning and a way of defining power relations in terms of the everyday lives of men.”

It is a case of a deepening of everyday surveillance. It is similar to what was done under the Britain’s Habitual Criminals Act of 1869 required police to keep an “Alphabetical Registry” and cross-referenced “Distinctive Marks Registry.

The idea of using dactyloscopy, or fingerprinting, for criminal identification surfaced in a letter to the publication Nature, from a Henry Faulds, a British physician which was deployed by colonial masters in India after First War of India's Independence in 1857.

Wittingly or unwittingly the biometric information based identification exercise is being implemented under the influence of transnational companies like Safarn Group and Accenture, international financial institutions like World Bank Group and defence conglomerates like NATO. It appears that corporate funding to the ruling political parties is facilitating the decision. It merits probe by the Supreme Court.

Unlike the earlier attempts the Database of Union Ministry of Home Affairs (MHA) and illegal and illegitimate Unique Identification Authority of India (UIDAI) that registers the names and distinctive marks builds on the biometric information of the human body that was used for tracking the misdeeds of the criminals and for identifying prisoners. This is an act of political record keeping. It is an act of using human body as data.

Notably, during the hearing in the Supreme Court, MHA officials were ever present besides personnel from the union ministry of communications.

The proposed convergence of biometric information with financial and personal data such as residence, employment, and medical history heralds the beginning of the demolition of one of the most important firewalls in the structure of privacy.

Aadhaar facilitates everyday surveillance in the way the discovery of longitude facilitates navigation.

In 'Perceptions of Privacy and the Consequences of Apathy' (published in Dalhousie Journal of Interdisciplinary Management – Volume 4 – Spring 2009 3), Sir Ken Macdonald, the Director of Public Prosecutions in UK is quoted as warning that the penalties of adopting a "Big Brother surveillance state could lead to serious consequences and suggests that "we should take very great care to imagine the world we are creating before we build it. We might end up living with something we cannot bear".

Aadhaar is promoting biometric casteism and brahmanism by freezing identity undermining fundamental rights, democracy and country’s sovereignty and under the influence of transnational biometric and software corporations. Bezwada Wilson, a noted Dalit activist who was one of these eminent citizens who signed Statement of Concern says, "This project wants to fix our identities through time. Even after that we are dead. The information held about us will be fixed to us by the UID number. Changing an identity will become impossible. We are working for the eradication of the practice of manual scavenging, for rehabilitation of those who have been engaged in manual scavenging, and then leaving behind that tag of manual scavenger. 

How can we accept a system that does not allow us to shed that identity and move on? How can a number that links up databases be good for us?" Notably, CIC's order of December 2014 was passed in the context of demand for caste certificate without aadhaar.

Supreme Court bench of 5 judges wrote, "Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for final hearing of these matters at the earliest" in its order dated 15th October, 2015.

Citizens Forum for Civil Liberties (CFCL) has been involved in research and advocacy on implications of biometric surveillance and identification technology based profiling of residents and citizens through projects like Aadhaar and NPR and its adverse impact on the natural inalienable rights of present and future generations since 2000.    

CFCL appeals for an early hearing from the Court to set matters right the way it did in the case of unconstitutionality of National Judicial Appointments Commission (NJAC) because like it biometric profiling based aadhaar is against the basic structure of the Constitution.

FOR DETAILS: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb:08227816731, 09818089660, E-MAIL:1715krishna@gmail.com