State blatantly violating Supreme Court's order in Aadhaar case

From inclusion to exclusion: poor and marginalised adversely affected by the UID/aadhaar project

Today, a press conference was held to highlight the ongoing blatant violations of Supreme Court order in the Aadhaar case. Aruna Roy, a petitioner in the case, said that there was no legal basis for the existence of the UID project. Since September 2013, the Supreme Court has passed orders five times, directing that Aadhaar is not mandatory for accessing entitlements, and no one can be denied any service because they are do not have an aadhaar number; yet people continue to be excluded from services on the grounds that they do not have an aadhaar card. Guddu, from Yamuna Khadar, Delhi, speaking at the press conference, spoke of the denial of emergency services in two public hospitals in Delhi when he and his friend Mewa Ram needed it because of Mewa Ram's lack of an aadhaar card.  

Reetika Khera, economist, said that the stated assumption that the UID project will greatly benefit the poor has been repeatedly proven to be wrong. “Rather than being a tool of inclusion, it is fast becoming a tool of exclusion”, she said. Further, in a reply to an RTI query it is learnt that only 0.03% of people enrolled had no form of identification before. Those with an ID remain untouched by the project (or the numbers were very small). Another stated aim was that the UID would help end corruption in the Public Distribution System and the National Rural Employment Guarantee Act. It has been seen in the past few years is that leakages have been reduced without the use of aadhaar. E.g., in Chhattisgarh, between 2004-5 and 2011-12, leakages have come down from 50 to 10 per cent, in Bihar from 90% to about 20% in the same period. 

“In the ration system in Delhi, the UID project has been used as a tool of exclusion,” said Anjali Bhardwaj of Satark Nagrik Sangathan.  Voices from the field spoke of how aadhaar has emerged as a barrier to the poor, especially women and children, from accessing their entitlements. For instance, Guddu from Yamuna Khadar, Delhi, speaking at the press conference spoke of the denial of emergency services in two public hospitals in Delhi because of the lack of an aadhaar card.  Ramlalli from Lal Gumbad, Delhi had applied for anew ration card, under national food security act (NFSA). She explained that her children’s names were not added to the ration card. She was told at the ration office that this was because their Aadhaar cards were not submitted with the application. Under the NFSA, entitlements have become individual, and due to theexclusion of her children, Ramlalli’s family now does not receive adequate foodgrain. “The reality is that Aadhaar is not necessary for ending corruption. What we require is greater transparency and effective systems of grievance redressal,” said Anjali Bhardwaj. 

Usha Ramanathan, law researcher, explained the latest order of the Supreme Court dated 11th August which states that the UID number cannot be used at all except for the purpose of the Public Distribution System and in LPG. “So, the CBSE or the UGC or banks or anyone else cannot ask for the number at all. This is because the court recognised that voluntariness was being used as a means of imposing compulsion to enroll on people,” she said. “If the ask for the number, they will be in contempt of the orders of the Supreme Court,” she added.

In addition to the problem of exclusion through the UID project and the continuing violation of Supreme Court orders, Gopal Krishna of the Citizens Forum for Civil Liberties (CFCL) explained that the status of the data collected through the UID project has been suspect from the very start. It is being held by companies of dubious provenance, with companies such as L1 Identity Solutions, Ernst and Young and Safran Morpho having our data handed over to them. A contract has been signed between our government and large private companies which says they will hold the collected data for a period of seven years. “Everyone knows that if data is stored for even seven seconds, it can last forever,” he said, “this is a breach of trust on the part of the state to which people have been submitting their data.” 

Aruna Roy added that by taking this issue lightly we are tacitly surrendering our economic and social rights. 

On the issue of biometrics, Usha Ramanathan explained that the use of biometrics in the Indian context is now admittedly experimental. “A Unique Biometrics Competence Center (UBCC) was announced on the UID website on August 13th where it is said that the Indian working population poses challenges to the use of biometrics, and so the UBCC was being set up to do research on biometrics”, she said. “This is as a statement as we can expect to hear that biometrics is not only uncertain technology but also untested technology. It seems they only admitted to this weakness because of the Supreme Court’s order that they may have to share the information that is with them with law enforcing agencies. If an outsider to the project were to see the database, it seems the unreliability of the biometric database would get exposed, and this is a preemptive declaration” she added.A report of the World Bank also stated that the rate of exclusion might be about 40% if identity systems were to be made the basis of access to entitlements; “but the report was soon removed from the World Bank website,” she said. Ramanathan highlighted that only one government agency had acted promptly on the Supreme Court orders – the Election Commission – which released a statement the next day and ensured that there would be no linking of voter ID numbers and the UID.

As the matter stands today, the cases challenging the UID project have been referred to a Constitution Bench. In the meantime the governmental agencies continue in blatant violation of the court’s orders, possibly bolstered by a confidence that the court has not taken any action in contempt so far. The panel appealed for the swift constitution of a bench to hear the matter and wide reportage on the continued problems faced by people due to the project. 

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

NHRC's circular on Aadhar Enabled Bio-metric Attendance System (AEBAS), illegal & illegitimate Biometric Aadhaar & how UIDAI is transferring personal data to foreign companies

To

Hon'ble Chairman

National Human Rights Commission, 

Manav Adhikar Bhawan Block-C, 

GPO Complex, INA, 

New Delhi - 110023 

April 8, 2015

Subject-NHRC's circular on Aadhar Enabled Bio-metric Attendance System (AEBAS), illegal & illegitimate Biometric Aadhaar & how UIDAI is transferring personal data to foreign companies

Sir,

This is to draw your urgent attention towards the attached orders of Hon'ble Supreme Court dated March 16, 2015 and March 24, 2014 in the matter of 12 digit biometric Unique Identity (UID)/aadhaar number case and to undertake the follow up of order of the Hon'ble National Human Rights Commission (NHRC) in Case No. 349/90/0/2012/OC dated December 27, 2012. 

While Hon'ble Court's views are consistent with NHRC's views available at http://nhrc.nic.in/disparchive.asp?fno=2416 submitted to the Parliamentary Standing Committee on Finance which had sought its views on the National Identification Authority of India Bill, 2010, it is quite surprising that Hon'ble Commission has chosen to go contrary to its own stated position and in violation of Hon'ble Court's orders by issuing a circular dated January 29, 2015 (F.No. Z-10655/5/2014-Estt.1252-1322) signed by Shri Ranjit Kumar, Joint Secretary (P&A), NHRC for the implementation of Aadhar Enabled Bio-metric Attendance System (AEBAS). I submit that the imitation of the attached Office Memorandum of Department of Telecommunications by the Hon'ble Commission signals erosion of its autonomy. 

I submit that 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.  

I seek your immediate intervention in the case seeking scrapping of 12 digit biometric Aadhaar number initiative. The attached Approach Paper of Department of Personnel and Training, Government of India unequivocally reveals what is at stake in this world's biggest biometric database being stored on cloud beyond Government of India's jurisdiction. I have written an ongoing series of articles for a financial magazine published from Mumbai. These articles are available at http://www.moneylife.in/author/gopal-krishna.html   

I wish to inform you that 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. 

I submit that ECI is feigning 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 the 12 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, March 24, 2014 and March 16, 2015. 

Hon'ble Court 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 first week for next hearing. (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, Shri 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.

The key questions are:Is Unique Identification (UID)/aadhaar Number in the interest of any state and its residents in India? Is it not true that an agency that would own centralised Database of biometric data based UID/aadhaar Numbers (CIDR) will be the most powerful?  Will it not be a threat to the federal structure of country as envisaged in our constitution?.  Is it in the interest of the future of India and Indians because “these systems would be in active use for centuries” to facilitate unprecedented surveillance by the government and its favourite "commercial czars" to use the phrase of Chief Executive Officer (CEO) of National Intelligence Grid, Capt. Raghu Raman who recommends "private territorial armies" for them?. (Reference document: "A Nation of Numb People")

I wish to inform you  that academicians who specialize in law have contended that Aadhaar and the MoUs for it are illegal and unconstitutional. The UID/aadhaar project is unfolding even before the passage of National Identification Authority of India Bill (NIAI), 2010. 

If everything was fine why was National Identification Authority of India Bill (NIAI), 2010 introduced in Parliament on 3rd December, 2010 after the launch of UID Number on 29th September, 2010 and after the creation of Unique Identification Authority of India (UIDAI) on 28th January, 2009?. 

If everything was fine why Parliamentary Standing Committee on Finance trashed the NIAI Bill whose controversial Section 57 seems to turn Parliament into a Rubber Stamp and makes a mockery of Parliamentary democracy. 

I submit that the National Identification Authority of India Bill (NIAI), 2010 with 57 clauses is linked to Land Titling Act, 2011 among other legilsations like DNA Profiling Bill, programs and controversial contracts.

I submit that I had appeared before the Parliamentary Standing Committee on Finance that questioned the legality of the aadhaar project. All the state governments too should make their considered submissions in the light of their legal imagination. 
 

• Aadhhar/UID Number is a proof you being a resident of India not a proof of you being an Indian citizen. Dalai Lama has been enrolled for UID Number. Is he a citizen of India? 

• Will foreign companies like L1 Identities Solution and Accenture that admittedly work with US security and intelligence agencies who were awarded contracts on 30 July, 2010 for implementation of aadhaar/UID Number protect US national interest or India's national interest?

• The 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 his fellow citizens is actually a unique identity manifesto as well. 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. Is it not true that only a misanthrope can approve of it?

I urge you again to take cognisance of the "Statement of Concern on UID Number" by 17 eminent citizens based on perusal and consideration of glaring facts and available documents. 
I submit that the aadhaar/UID project is going to do almost exactly the same thing which the predecessors of Hitler did, else how is it that Germany always had the lists of Jewish names even prior to the arrival of the Nazis? The Nazis got these lists with the help of IBM which was in the 'census' business that included racial census that entailed not only count the Jews but also identifying them. At the US Holocaust Museum in Washington, DC, there is an exhibit of an IBM Hollerith D-11 card sorting machine that was responsible for organising the census of 1933 that first identified the Jews. 

I submit that 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 Hon'ble Supreme Court and all the Hon'ble 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.  

I submit that biometric 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 have not informed the  concerned authorities about the grave ramifications of aadhaar. It is quite strange erosion of citizens' autonomy because of centralized databases of biometric data and the illegitimate advances of the social control technologies remains undefended. 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. Hon'ble Commission must intervene to set matters right.

I submit that authorities 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.”

I wish to draw your attention towards what transpired on March 10, 2015, Ministry of Home Affairs in Lok Sabha. Government said, “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 Justice 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 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.

In view of the above concerns, I seek your intervention to ensure that data of Indians are not passed on to foreign biometric and surveillance companies and all the civil rights guaranteed by our constitution does not get snatched away due to adoption of the ideology of biometric and genetic determinism.

warm regards 

Gopal Krishna
Member, Citizens Forum for Civil Liberties (CFCL)
New Delhi
Mb: 09818089660, 08227816731

E-mail: 1715krishna@gmail.com