Five judges led Constitution Bench to hear historic Writ Petition on unconstitutionality of UIDAI & Right to Privacy

European Court of Human Rights & Supreme Court of Philippines have unanimously ruled against indiscriminate biometric profiling

Nilekani successfully misled both Dr Manmohan Singh led government and Narendra Modi led government but failed to mislead Parliament, Punjab & Haryana High Court and Supreme Court

The five judges led Constitution Bench likely to hear historic Writ Petition (Civil) 494 of 2012 on 14^th October that deals with unconstitutionality of Unique Identification Authority of India (UIDAI), Biometric Aadhaar, Right to Privacy and contempt of Supreme Court’s repeated orders. It must be recalled that European Court of Human Rights and Supreme Court of Philippines have unanimously ruled against indiscriminate biometric profiling for national identification projects like aadhaar to safeguard citizens’ right to privacy.  

Legally questionable UIDAI, which Supreme Court has aptly noted in its 11^th August, 2015 order, “is under attack on various counts.”  Chief Justice led bench of Punjab & Haryana High Court had also noted that aadhaar’s legality was questionable. 

In an out of court argument, former chairman of the UIDAI Nandan Nilekani provided central government a sophist’s reasoning on 'Why Supreme Court judgment on Aadhar calls for an appeal' in a motivated exercise by defining political, social and economic democracy in the biometric aadhaar era.     

This is reminiscent of what Thomas Szasz, a psychiatrist and psychoanalyst, wrote in his book The Second Sin published in 1974.

'In the animal kingdom, the rule is, eat or be eaten; in the human kingdom, define or be defined,' he wrote.

Contrary to what the claim of UIDAI and Nilekani -- that the collection of biometric information and its linkage with personal information of individuals 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 -- according to the Parliamentary Standing Committee on Finance.

This parliamentary panel has raised questions about the absence of a legal mandate for biometric data collection.

Central government and Nilekani would have us believe that biometric profiling without amendment to the Citizenship Act, 1955, is tantamount to political, social and economic democracy. Admittedly, he has built a 'positive coalition of people who have a stake in its success.'

Nilekani has disclosed that 'there is a huge coalition of organisations, governments, banks, companies, others who have a stake now' in the future of the biometric aadhaar database.

The idea was/is to 'create a positive coalition that has the power to overpower or deal with anyone who opposes it,' including the Supreme Court, Parliament, concerned political parties and peoples' movements.

It is clear that the motivated definition of 'political, social and economic democracy' that he is offering is constructed to suit the interest of his coalition partners, not citizens.

The UIDAI and Nilekani have remained secretive about the convergence of the biometric Aadhaar scheme and the National Population Register programme of the Union ministry of home affairs although it was part of their conceptual design admittedly 'as per approved strategy.'

By now, there is not even an iota of doubt that both schemes were in fact one. Do keeping Indian citizens in the dark about its ulterior motives contribute to political, social and economic democracy? It is evident that the Bharatiya Janata Party (BJP)'s proposal for the National Population Register and the Congress's Aadhaar is simply the same rose with different names.

Admittedly, biometric data is a property. It is not surprising that property dealers of all shapes and shades are visible on the horizon. Nilekani seems to be promoting 'economic democracy' through such dealings.

It is noteworthy that both the National Population Register and Aadhaar are online databases by design. Nilekani seems to feign ignorance about disclosures by Wikileaks and Edward Snowden that have reveled Earth-wide surveillance. The leaked files show that the US National Security Agency and its British counterpart -- the Government Communication Headquarters, GCHQ -- have broadly compromised the guarantees that Internet companies have given consumers to reassure them that their communications, online banking and medical records would be indecipherable to criminals or governments.

Wilikeaks and Snowden have also revealed that US agencies and their allies are keenly monitoring the implementation of Aadhaar.

According to media reports, the ministry of home affairs accused telecom operator Vodafone of secretly sharing subscriber data with GHCQ, a charge denied by the company.

According to documents of the home ministry's internal security division, Vodafone is alleged to have given GCHQ 'secret unlimited access to their network of undersea cables, which carry much of world's phone calls and Internet traffic.'

Notably, Ernst & Young is a British company that has signed a contract with UIDAI swearing by Gandhi's talisman which Nilekani has quoted to express his concern for the poor. Its contract announces that 'We will provide a unique identity to over 113.9 crore (1.139 billion) people.'

The ministry of planning, in its action taken report, has been quoted as having stated that 'the UIDAI has been authorised to enroll 60 crore (600 million) residents by March 2014' in the October 2013 report of the Parliamentary Standing Committee on Finance to Parliament. This provision of 113.9 crore people in the contract agreement is evidently a fraudulent one.

This came to light from a Right To Information reply dated December 5, 2013, wherein the UIDAI shared the contract agreement it signed on behalf of the President of India acting through the director general of the UIDAI, the Planning Commission, the Government of India (which is the employer), on March 17, 2010 with the consortium consisting of Ms Ernst & Young Private Limited and Ms Netmagic Solutions Pvt Ltd wherein 'Ms Ernst & Young pvt ltd' is the lead partner and consultant.

The budget of this project comes under the ministry of planning. The budgetary support to Aadhaar was increased by 47 per cent to Rs 1,758 crore (Rs 17.58 billion) in 2012-2013 from Rs 1,200 crore (Rs 12 billion) in 2011-2012 for UIDAI to enroll Indian residents for their unique IDs/Aadhaar to 60 crore from 20 crore (200 million).

A provision of Rs 2,620 crore (Rs 26.20 billion) was allocated in the Budget Estimate (2013-2014) for the UIDAI and a major part of the budget provision for Rs 1,040 crore (Rs 10.40 billion) was earmarked for 'Enrolment Authentication and Updation,' out of which Rs 1,000 crore (Rs 10 billion) was earmarked under the head 'other charges.'

What are 'other charges'? Has it been spent to promote 'economic democracy'?

While the UIDAI never disclosed the total estimated budget for the Aadhaar project, the total expenditure by them since its inception up to August 2015 is Rs 6,678.32 crore (Rs 66.78 billion). As of September 2015, the total approved outlay for the UIDAI project is Rs 13,663.22 crore (Rs 136.63 billion).

Even at this stage, it has refrained from sharing the total estimated budget.

The agreement with Ernst & Young states that it proposes to 'adopt a political, economic, social, technology, legal and environment framework' to cover all key dimensions of the UID/Aadhaar programme. This framework amounts to rewriting the political geography of the country with hitherto unknown consequences for political rights.

In a glaring development, the British government has dismantled its own biometric data-based National ID programme just like China, the USA, France, Australia and the Philippines have done. But the Indian government refuses to learn lessons from them.

Like the Pied Piper, it appears that Nilekani has made legislators, policy-makers and law enforcers wittingly or unwittingly complicit in promotion of the UIDAI's biometric data collection.

Besides, then prime minister Manmohan Singh and his successor Narendra Modi, Nilekani succeeded in persuading at least three finance ministers -- Pranab Mukherjee, P Chidambaram and Arun Jaitley -- to agree to the creation of Aadhaar as an 'online database.'

It appears bizarre with regard to Modi and Jaitley because they had themselves written and spoken against Aadhaar.

These ministers have chosen not to pay heed to what Nicholas Negroponte, an acclaimed authority on the subject, wrote about the internet. He wrote that the Internet was conceived and designed by a man named Larry Roberts in 1963.

Roberts was invited to Washington, DC by Ivan Sutherland, then the head of the Advanced Research Projects Agency's computer research. The Internet was then called the ARPA network (ARPAnet) and designed to be a fail-safe messaging system that packetised information.

The Pentagon funded ARPAnet at a time when the Cold War was almost at its peak. Some countries including the United States wanted to make sure that there were some means for them to listen into messages, such as wiretapping. Negroponte disclosed this in his book, Being Digital, published in 1995.

Julian Assange of Wikileaks makes its implications quite clear.

‘Who arrogates the power to spy on the entire Earth -- every single of us -- and when he is caught red-handed, explains to us that "We're going to have to make a choice"?' asks Assange. 'Who is that person? Let's be careful about who we call a "traitor". They are young, technically-minded people from the generation American President Barack Obama betrayed. They are the generation that grew up on the Internet, and were shaped by it.'

It has been admitted that the chief executive of MongoDB met senior officials of UIDAI's technology centre at Bengaluru. In reply to an RTI question, the UIDAI said, 'Max Schireson, CEO Mongo DB, while on a tour to India, sought a meeting at the UIDAI tech centre and the meeting was held on 13 November, 2013.'

These disclosures do not reveal MongoDB chief's aim visit to India and whether the CEO accomplished the task for which he had come. MongoDB's link with the Central Intelligence Agency and the National Security Agency merits the attention of Indians to ascertain what is uniquely strategic about a MongoDB database and similar other databases being created.

It is akin to identifying and matching mailing addresses of communities, ethnic groups and individuals against a database. It is as specific as targets for precision bombing and drone attacks.

In response to a question about the names of UIDAI officials who met MongoDB's CEO, the UIDAI said, 'DDG Tech Centre and ADG IT-II, Tech Centre met him.'

In reply to the query about the copy of the full contract signed between the UIDAI and MongoDB, and/or any of its previous or successor names/titles/agents -- the UIDAI and IBM, the UIDAI and Oracle and the UIDAI and In-Q-Tel-- the UIDAI has written, 'No contract signed between UIDAI and MongoDB, and/or any of its previous or successor names/titles/agents and No contract signed between UIDAI and IBM.'

With regard to the query about contract between the UIDAI and Oracle, it has stated, 'Production support for MySQL is provided by Oracle; no contract signed.'

This reply reveals that the UIDAI is engaging companies such as Oracle and others without signing any contract. As to contract agreement between the UIDAI and In-Q-Tel, the UIDAI has written 'No contract signed' between them. Oracle is in the business of 'cloudifying' databases that seems to have the potential to turn governments into puppets at least as far as control over databases is concerned.

Strangely, in response to the query about 'the country of registration of above listed companies and the names and profile of the persons as the board of directors,' the UIDAI has given an evasive and disturbing reply stating, 'No Information is known.'

This reply merits a probe. A similar reply was initially given by the UIDAI when it was asked about the origin of the country of security, identification and surveillance companies such as Accenture, Safran Group's Sagem Morpho and L1 Identity solution who had signed contracts with UIDAI.

To the query about copy of the relevant pages of the guidelines, surveys and reports on record for 100 per cent accuracy of biometrics and that biometrics data of any person that changes because of ageing, the UIDAI states, 'Information is not available.'

MongoDB is a Palo Alto and Manhattan-based database software provider in the $30 billion relational database market. Relational databases commenced in the 1970s when computers were moving away from punch cards to terminals.

The UIDAI remains tight-lipped about MongoDB's relationship with the CIA. It is yet to become clear whether this company is providing 'production support' without signing any contract or is it operating through some pre-existing entity, which is already working with the UIDAI.

It is germane to recall that one of the investors of MongoDB is In-Q-Tel, a not-for-profit organisation based in Virginia, US, created to bridge the gap between the technology needs of the US intelligence community and emerging commercial innovation.

IQT was launched in 1999. Its core purpose is to keep the CIA and other intelligence agencies equipped with the latest in information technology to support intelligence capability.

George Tenet, a former CIA director, has revealed, 'We (the CIA) decided to use our limited dollars to leverage technology developed elsewhere. In 1999 we chartered -- while we pay the bills -- In-Q-Tel is independent of the CIA. The CIA identifies pressing problems, and In-Q-Tel provides the technology to address them.'

In-Q-Tel was funded with about $37 million a year from the CIA.

In its reply, the UIDAI should have disclosed the names of companies which are providing support to it without signing any contract, the details of the terms and conditions and financial component involved in the production support being offered by Oracle and the details of meetings between MongoDB and Nilekani, the biometric data collector.

In an RTI reply dated September 4, 2015, the UIDAI has confirmed that the various contracts worth Rs 13,663.22 crore were awarded without tendering for the Aadhaar project. Some 25 companies have been awarded different responsibilities. Notably, eight contracts have been awarded to Wipro and HCL.

The RTI replies have come in response to applications by Qaneez Sukhrani and Anil Galgali.

Notably, in a statement dated December 5, 2013, the Communist Party of India-Marxist had taken cognisance of the engagement between MongoDB, L-1 Identity Solutions, the Safran Group and the UIDAI.

The party had demanded 'the cancellation of the tie-up with foreign companies and a suspension of the Aadhaar scheme till Parliament deliberates and decides on its future and, if required, a legislative enactment.'

'Data can be considered as the equivalent of water. There are a number of processes involved before the actual consumption of water and data. The journey begins with data, such as water being generated at multiple sources. These are then brought together into one central location,' reads a paper titled Analytics -- Empowering Operations: The UIDAI Experience. The paper is dated January 2012.

Dermot Mccormack, in the book 10 Technologies Every Executive Needs to Know, underlines how some of the encryption, security and signal encoding issues that we might blame the manufacturers on may in fact have another source of culpability.

During the 1990s, the US government was urging the industry to pursue a policy of 'weak encryption.' The government's argument was based on the belief that building highly encrypted, absolutely secure products would be an impediment to their intelligence gathering operations! It is unclear who is winning the argument for tougher security.

In the post 9/11 world, the US government is in a strong position to browbeat security wireless system manufacturers to abide by their 'guidance.'

Nilekani, who was made chairman of the Congress Manifesto Consultation Committee, has been assuring Indians that firewalls that have been created to protect their biometric assets. Mccormack categorically states, 'Firewalls are not a security panacea.'

The February 2014 report on Cyber Crime, Cyber Security and Right to Privacy by the Parliamentary Standing Committee on Information Technology reveals how an Aadhaar number compromises both national security and citizens' sovereignty for good.

The database of these numbers is being stored on cloud which is beyond India's jurisdiction. Is it irrelevant to recollect the role of the Trojan horse in the battle of Troy?

The government's Economic Survey 2011-2012 claimed, 'The Aadhaar project is set to become the largest biometric capture and identification project in the world.' It is admitted by UIDAI that there are 'ownership risks (Ownership of the project by stakeholders), technology risks (nowhere in the world a project of this size has been implemented) and privacy concerns (there may be groups raising privacy issues -- many ID Projects in Western countries have been stalled due to the opposition of privacy groups).'

The UIDAI claims it is 'putting into place the risk mitigation strategies to minimise some of these risks,' but this has never been shared with Parliament and citizens.

The likes of Nilekani contend that they have given the right to identity to Indians through Aadhaar. How is it being argued that 'we the people' who gave ourselves the Constitution of India did not have an identity prior to Aadhaar? Such propositions are highly untenable.

Supporter of the UIDAI scheme reveal an unwillingness to engage with the existing system. They attempt to superimpose new systems over existing structures. Not surprisingly, the biometric Aadhaar scheme is undermining all the existing institutional safeguards. This appears to be a consequence of visible and invisible corporate donors who, having made inroads into both the Congress and BJP, are dictating these actions and are calling the shots.

The Parliamentary Standing Committee on Finance examined and censured the UIDAI and Aadhaar on numerous occasions. In its report on UIDAI, it observes, 'The committee strongly feels that in the absence of legislation, the UIDAI is discharging its functions without any legal basis.'

Despite this, Aadhaar is attempting to make the 'online' demographic and biometric database of Indians by putting it on a cloud and making it irreversible and ubiquitous so that it can be the cow which can be milked until the sun sets on national and transnational patrons of outsourcing companies.

Does such functioning promote 'political democracy'?

Can Indians resist their subjugation through databasing by national and transnational tycoons in league with countries such as the US and France? Isn't it a case of so-called 'free trade' in personal sensitive information at any national cost?

Biometric Aadhaar-based surveillance is not only about violation of privacy, but also about the treasure hunt for unprecedented financial surveillance and economic intelligence in the economic history of mankind.

Wouldn't this process have a lethal impact on the existence of India in such an undemocratic digital landscape?

Is it surprising that few of the commercial czars who fund our political parties with the aim to promote 'social, economic and political democracy' enrolled for biometric Aadhaar?

It is apparent that so far Nilekani has successfully misled both Dr Manmohan Singh led government and Narendra Modi led government. But he and his coalition members have failed to mislead Parliament, Punjab & Haryana High Court and Supreme Court despite valiant efforts by government’s legal officers.

When Supreme Court’s Constitution Bench hears the case, it has to keep in mind the question- who is more trustworthy? Should it trust JULIAN ASSANGE and EDWARD SNOWDEN who put their lives at risk to tell Indian government, Indians and others that they are being spied upon or Nilekani who helps foreign entities spy on Indians including present and future Presidents, Prime Ministers, judges, legislators and officials handling sensitive assignments like National Security Advisor? Notably, the February 2014 report on Cyber Crime, Cyber Security and Right to Privacy by the Parliamentary Standing Committee on Information Technology has inquired from central government about spying by USA’s NATIONAL SECURITY AGENCY (NSA) and about cyber cloud where sensitive personal information of Indians is being stored but managed to extract only very lame replies.

Clearly, there is a compelling reason why government should be made to rethink its Digital India Initiative by learning lessons from USA, UK, Australia, China and Philippines who have abandoned indiscriminate biometric profiling based national identification projects like aadhaar.          

For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 08227816731, 09818089660, E-mail-1715krishna@gmail.com