Tuesday, February 11, 2014

It is unfair to judge us so quickly:Arvind Kejriwal

Arvind Kejriwal, Delhi Chief Minister and Aam Aadmi Party leader speaks to Raj Chengappa, Editor-in-Chief of The Tribune Group of Newspapers

What are the lessons or the learning experience you have had from being in power the past month and a half?
One realises that there is no dearth of money; a lot of money is available with the government. What was happening was that big projects costing several hundred crore of rupees, which have absolutely no public utility, were being given out. When these projects are done they need huge amounts of money. But when you have people with the right kind of intentions, with an open mind, open to ideas, it is not rocket science to improve things. The second thing is that the vested interests are huge; they are all across — political, commercial, bureaucratic and even in the media. I’ll give you an instance: The Prevention of Corruption Act is being diluted in a major way. That Bill is being presented in Parliament, but no one in the media is talking about it. The media is busy wondering why Arvind has taken a three-bedroom house or a four-bedroom house; why has he changed his sweater, sandals. The entire effort is to make us fail. To show that we don’t know how to govern. Obviously, there are interests.
One of the impressions about you is that you are a man in a hurry, doing a lot of things in a short period. What is the strategy behind this? Do you believe the government would fall shortly, and you have to do all this before that happens?
But we don’t think we are doing anything in a hurry. It is just that we are working hard, and we must work hard. We made several mistakes, and in the beginning we were also saying that we were grateful to the media for pointing out our mistakes. We also took back some of our steps on the basis of the feedback. We always valued constructive criticism. But if anything went wrong, I don’t think speed was responsible for our bad judgement.
What were your mistakes?
Many. For instance, we set up the "janta darbar", it didn’t work out. When I get up in the morning, there are a lot of people standing outside my house and I meet them. I wanted to streamline that. So we decided that all the ministers will meet people once a week, and the rest of the days the officers will meet them. The idea was to meet the people personally. But the day we announced the idea, thousands of people came. We had made arrangements for 2,000-3,000 people, but 20,000 came. I think we should have studied models that have been implemented in other states before doing that. There are many such small steps that we had to take back. One obviously learns from that.


Did you expect you would come to power so quickly?
Three or four months before the elections it had become clear from the mood of the people that we were winning.
So you had actually given a thought to what exactly to do after coming to power. You are not taking ad hoc decisions after being surprised by the victory.
We have been in power only a month and a half, and many people are already judging us or writing us off. We have taken over from a government that was there for 15 years. You can imagine the vested interests that would be there. We don’t know which officer is aligned with whom. Building your team takes time. You need 20 to 25 days to identify the officers. You cannot randomly appoint someone to a post. Good officers are hard to find. It is unfair to judge us so quickly.
On the Delhi Police controversy, there are two points: A lot of people agree with you that things need to change, but others’ objection was to the dharna approach you took while being sworn to the Constitution as Chief Minister. Many said you could have brought about disaffection in the Delhi Police. Why did you choose the dharna path?
First, I don’t agree that because one is holding a constitutional office one loses the right to protest or one should not protest. If it is required one should fight for justice in a non-violent manner. Fighting for justice in the streets is very much a constitutional method. It is part of our Constitution under Article 19. Why should it be restricted to only ordinary people? Why cannot a Chief Minister protest if he finds himself helpless in a particular situation and is not able to do [what he wants]. This is a wrong notion of democracy that a Chief Minister should only work from his air-conditioned office and not come out in the street. He must come out in the streets and that is what I did.
A woman had been gang-raped in Delhi. The first thing on assuming office I did was call the Police Commissioner and asked him about the high level of crime taking place against women. He came up with statistics on the number of rape cases. I said that statistics is good for a public relations exercise, but even if one rape has taken place why has it taken place, though rape cases have doubled in the last one year in Delhi.
There are two types of rapes: one is something that happens in a family, which the police can do nothing about. The other is where antisocial elements are involved. I said 90 per cent of the crimes take place with full police collusion and knowledge. Therefore heads should roll if a rape takes place in a particular area. You have to fix accountability. Not necessarily the SHO — it could be the beat constable, SI, whoever it was that was supposed to have been on that road that day, but was not there. So when this Danish woman was gang-raped I said someone has to go. You cannot say no one is responsible.
One woman was burnt alive in another area and the SHO refused to arrest the people. Our minister was standing outside the house, when all the culprits were inside the house. Area residents were gathered, the SHO was also standing there, and people were asking him to arrest the suspects. But the SHO refused to make arrests. He said ‘get me transferred if you can’. If this is the case then where do you stand? That is why I staged the dharna; to do something about the police. Some said I was doing ‘tamasha’. No one does tamasha in 4° C at night. Others do tamasha sitting in the AC. I think the dharna went down well with the ordinary people.

What is your solution in terms of control of the Delhi Police by the state Chief Minister? Should you not approach Parliament for the amendments?
The Delhi Police has to be under the Delhi Government. It is very unfortunate that today the Delhi Police is completely unaccountable. Shinde has no interest [in how they perform]. So who are they reporting to? Can you have a force with all police powers without answerability to any political executive? There has to be political control over them.

What would you like the division of control to be?
Let the Centre have control over the police in New Delhi’s Lutyens zone and the NDMC area. As far as municipal functions are concerned, Delhi today is divided into three parts: MCD, NDMC and Delhi Cantt army area. Regarding police, if you have concerns then the army and NDMC areas can be with the Centre, but control in the MCD area should be given to us.
In your policies, you have announced subsidies for power and water. How is that different from say what the Punjab Government does in giving free power or the UPA’s various populist policies. How is your party different from others giving sops to win votes?
Firstly, we should not say that whatever other parties are doing is all wrong. It could be good as well as bad. If Punjab is giving free power to farmers, it may not be a bad idea. Do you know that we give Rs 6 lakh crore worth of tax subsidy to the industry? It goes to Reliance, Tatas. No one complains if you give it to the rich. But if you give a common man Rs 200 worth of subsidy everyone is up in arms. Giving subsidy to the poor is a government’s responsibility. World over subsidies are given, including in the US.
The total subsidy that we are giving in Delhi for power and water is Rs 242 crore out of a total budget of Rs 40,000 crore. This is around 0.5 per cent. The scales are important. Had I given Rs 10,000 crore as subsidy out of the Rs 40,000 crore, you could have said this guy does not know his finances. We have to do something for the poor out of this Rs 40,000 crore. It is the government’s job to supply water. There has to be ‘lifeline water’ for the poor.
You may argue whether the free water allowed should be 20 kilolitres or 10 kilolitres. But you cannot say no free water can be given or every drop has to be charged for. Even someone who cannot pay needs water. He’ll steal if you don’t give him. You are forcing him to do that. In power there is cross-subsidy everywhere. Those who have 20 air-conditioners can pay more; the poor can pay a little less for up to 200 units. In fact, the concept of income tax or direct taxes is also cross-subsidisation. It is very interesting — about 2 crore people are paying for the rest of the 120 crore.
I could have purchased a helicopter worth Rs 450 crore for myself after becoming the Chief Minister, as all the others do. I could have claimed I’ll travel from home to office in the helicopter and not cause inconvenience to the people on the roads. People would have called me an efficient and modern Chief Minister. But I did not buy a helicopter, and gave subsidy worth Rs 250 crore, and that is causing people heartburn!
But it is feared subsidy often goes to people who don’t need it.
We have taken care of that. You get subsidy only till 400 units. The moment you go to 401, you pay for all of it. The same is for water. If you consume more than 20 kilolitre, you pay for all of it. This also encourages conservation, and there is an automatic check against high consumers getting subsidy.
You decided to reverse the previous government’s policy on allowing FDI in multi-brand retail. What is your reasoning behind this?
We had researched on the subject for quite some time while making our manifesto. Many editors from business newspapers have met me on this, and I asked them to tell me what will be the benefits to the country from this FDI. I offered to change the decision if there are benefits. I was told of four essential benefits: better price for famers, more choice and better price for consumers, and more employment. I have read a lot on the 130 countries that have FDI in multi-brand retail, and found evidence of only more choice for consumers. Even in the US there is a huge opposition against Walmart. I asked for names of the countries where farmers have got better prices, they could give me none.
They do cite China as a successful example of FDI in retail. But China has a huge domestic manufacturing sector, which needed to market its products. So there was an actual demand for large organised retail to distribute the goods. But even there it led to a huge amount of displacement, people running small shops lost their jobs. But because the manufacturing sector was thriving these people could be absorbed in that, and it did not lead to any turmoil.
Here people are already clamouring for jobs. We have such huge unemployment and very little manufacturing. There are no government jobs. We have to encourage the private industry and traders. We can’t have any policy that leads to loss of jobs.
What is your approach to boosting the Indian economy?
We have to encourage private business. The government has no business to be in business. That is very clear. There is a false propaganda that we are socialists and we’ll nationalise everything. We have no plan to nationalise anything. An Indian is a born entrepreneur, it is in our blood. But the present policies and inspectors do not let people do trade or business in peace.
We would like to deregulate business. The government will have no interference. We’ll let people do business without any permissions; just don’t do anything wrong, for which no one will be spared.
If you are put in charge of the national economy, what would you do?
First, decentralisation is required. At present politics and economics are intricately related to each other. Recently, the son of a very big businessman of the country gave me an interesting perspective. He told me AAP’s economic policy could be defined in two words: ‘good politics’, which was what we stood for. He said if you created an honest environment, business would flourish. People would do the business on their own. It was not the government that did development but the people. They just needed a healthy environment, which the government could provide.
Soon we are going to begin relaying the roads in all Delhi industrial areas simultaneously. We’ll provide all the facilities required for business. We will also open more industrial areas. I have had many business delegations come to complain of VAT regulations and forms. I immediately consulted the VAT commissioner and scrapped many of the forms and changed procedures. We’ll have a situation that no trader would have to come to the VAT office. Do everything online. I get the officers concerned and traders to meet and take decisions on the spot. They get up only when there is agreement. This is not rocket science.
The UPA has a lot of policies for rural India, such as the job security scheme. What would you do better?
No policy made in Delhi can succeed, howsoever well intentioned (though I suspect the intention too in most policies). The government cannot be run from Delhi. We are bringing the Swaraj Bill in the Cabinet next month. Money will not be spent on things the government decides, but what the residents of the area want. Delhi will be divided into around 3,000 mohallas, where people will meet every month and decide what their priorities are. They’ll be given a sum of money as per their share to spend. Some people fear it could be misused. Even if they all divide the money up amongst themselves, it’ll be better than politicians getting it. But they won’t do that, as a mother cares more about her child’s education than the education secretary. They will decide their own priorities and make their own budgets. Why should the government decide who needs ration or job security. Let the area residents themselves decide which scheme to run.
What would you do with all the national schemes, like the MGNREGA?
There are more than 250 centrally sponsored schemes in the country right now. Most of the schemes need to be scrapped, and the money should be given directly to the people. These schemes are only giving employment to some of the government employees. People should make their own schemes for their own areas keeping in view their necessities.
What do you think of the food security scheme?
People are more worried about their food security than the food secretary of the Central or state government. Let people sit in their mohalla sabhas and decide how they want to use the money that the government has given for them — whether they want food security or drinking water security.
What is your view of the Aadhar card scheme?
It is not a bad idea to give people some sort of identification. However, there are certain objections, which need to be addressed.
So how will you ensure subsidies go to the right people?
I am not in favour of anything that is centrally monitored from Delhi or the state headquarters. I want to de-centralise decision-making. Let the people decide because they are very creative. The political class has suppressed the creative and enterprising spirit of the people of this country. When our people go to the USA and other countries they become top researchers, doctors, scientists. We need to make people completely independent. We need to have research institutes that should be independent of government control and monitoring.
What is the problem with the Lokpal Bill that the Centre has passed?
The Centre’s Lokpal Bill is complete nonsense. It cannot even send a rat to jail, forget about Raja or Kalmadi. And now they are planning to water down the Prevention of Corruption Act. They are taking out the effective provisions from this Act. Their intention is not to check corruption, but to protect the corrupt.
So, how is your Bill different?
It is very sharp. It ensures certainty and swiftness of punishment. Right from the Prime Minister to Chief Minister, all are covered under this Bill. If anyone indulges in corruption, he will get punishment and will go to jail within six months to one year. His assets will be confiscated and he will lose his job. We have defined time limits for every action. Finally it is the intention that matters. Their intention was bad, whereas we have tried to plug every loophole. There were several rounds of discussion to prepare this Bill.
Why did you and Anna Hazare fall out. Was it the Lokpal Bill or the approach?
After we tried everything to make the government bring in the Lokpal Bill, and failed, we decided to enter politics to do it ourselves. But he [Anna] said he did not want to enter politics.
I am in touch with Anna Hazare and spoke to him just 20 minutes back, and requested him to come to Delhi on February 16 when we pass the Jan Lokpal Bill. He said that he was pre-occupied with other engagements.
Once Kiran Bedi was also with you....
It will be better if you ask her this question. She seems to be becoming fond of the BJP.
What is your opinion about Rahul Gandhi?
Please don’t ask me to comment on Rahul and Modi. It is no good commenting on them.
But you have taken the Congress’ support in Delhi.
We did not take their support. They thrust it on us. Till now we have never spoken to them and never had any meeting with them. The fact is that people have no hope from mainstream and larger political parties, people are fed up with their politics. We were nowhere, we had no standing. Arvind Kejriwal was a nobody. Why have we been brought to power? There was a great political vacuum and these politicians had looted the country and people just too long. People were fed up with their corrupt politics. They wanted to support honest people. We talked of honesty and demonstrated it, so they brought us forward.
You talk of free enterprise, so does the BJP. What is the difference between AAP and the BJP?
It is the question of intention. Even the Congress says the same things, but their intention is not honest, ours is and we do what we say. We have done a lot of work for people in the past one and a half month. You show me even a single government that has done so much work in such a short period since Independence. We walk the talk. We have started work on every point raised in our manifesto. Our intention is very clear and honest, whereas their intention is not clean.
The Congress claims it is secular, the BJP calls it pseudo-secular. What is your policy on minorities?
Both these parties talk funny. When one party supports the Congress, the latter calls it secular, when the same party supports the BJP it is labelled communal. In fact, both the BJP and the Congress do politics for power. They talk of secularism only to grab power and get the votes of the minorities. Both the BJP and the Congress have the same character, they can go to the extent of killing thousands of people to grab power.
They talk of development. In fact, the primary responsibility of a government is to provide security to its people, then justice and then comes development. If we are unable to provide security and justice to our people, no development can take place, only partial development may take place. Today, neither Rahul Gandhi nor Narendra Modi talks of security and justice. Where is the security for women in our country? Both the parties talk of development because they have huge money to make in development. There are many convicted persons in the Cabinet of Gujarat Chief Minister Narendra Modi. Can you expect such persons or such a government to give justice and security to the people with such convicted persons in the government?
Our government is clean. There were allegations of corruption against one candidate of our party from Rajouri Garden before the Assembly elections, we cancelled his ticket and left the seat vacant. If you allow a corrupt person to hold a key position, he will make the entire system under him corrupt. Both the Congress and the BJP are two sides of the same coin.
What is your view of the differences in your own party? Some people like Capt Gopinath have criticised your policies. One MLA has left. Why this?
Ours is a self-screening party. As the party grows, people join, people leave. Some come and ask me what will they get? I tell them you will have to face lathis, go to jail and neglect your families. Join if you want.
Take the case of Binny. He asked to be made a minister, then again came for the Lok Sabha ticket. I flatly refused both the demands. He left and we did not stop him. Then I called a meeting of all AAP MLAs and told everybody that there should be no greed for any ministerial berth or seat of power. If there is any they have to get rid of it. Even if my government falls, I am not worried about that. I have not come here to form or run a government on these principles.
There are some people like Captain Gopinath who did not read the vision document of the party. There are clear guidelines. Mallika Sarabhai also came on own her own and then left. In fact, there is no place for greedy persons in our party. I understand that some political parties have been planning to plant 300-400 persons as members of AAP and then make them revolt against the party to give it a bad name. There is a game plan of both the BJP and the Congress in collaboration with a section of the media to defame AAP. That there is no democracy in AAP and Arvind Kejriwal is this and that. There is far more dissent in the BJP, but that is not highlighted.
Do you think your government will last its full term?
We are not worried about that.
It appears that you are on a confrontation mode so that the support to your government is withdrawn and whenever elections are held your party emerges with a clear majority.
No, this is a media creation. We are not worried about whether the government survives for another day or not. We are only worried about people’s welfare. If the government is running, we should work. If the government falls, fresh elections will be held. If we are elected again, we will form and run the government. If the people do not want to elect us again, we will sit at our homes.
You have said your party will contest many seats in the General Election. What will be the key issue?
I think corruption should be a major issue. In fact, it should become the defining issue.
How many seats is your party planning to contest?
We will try to contest on all those seats where the candidates from other parties are criminals, corrupt, communal or have dynastic politics. These four types of candidates should be defeated. We will field good candidates and we will tell the people that earlier you had no option, but this time you will have an option, and you should choose honest and clean persons. After all, it is not my election, it is theirs — the people’s elections.
Are you not overreaching yourself? In such a short time you are trying to build a full movement?
If it is my election, then we were overreaching. But if this is the election of the people, there is a political storm and the common people stand as candidates it is not overreaching. We do not have our own candidates. We will field clean people from the public. You know those candidates of ours who won from Delhi, they are ordinary people. Nobody knew them. Just as they were elected by the people in the Delhi Assembly elections, so will our party candidates be elected from other constituencies in the general election. The Aam Admi Party is just a facilitator.
Are you looking for electoral reforms — one of the important issues is the amount of money spent in elections — what needs to be done to control this?
Many things need to be done seriously. Electoral reforms are a big issue. This is where political corruption starts. There is need for complete transparency. There is huge spending in every rally of Narendra Modi. People tell me that Mukesh Ambani is backing Modi, Adani is with Modi. We need to know if this is true and who is behind such rallies. Where is the money coming from? Large sums are being spent on Rahul Gandhi’s rallies, they are roaming about and travelling in planes while we are unable to manage or arrange petrol for our Wagon-R car. The people should ask wherefrom such huge amount is coming?
So you think the key is ensuring transparency in electoral spending?
Of course, there should be complete transparency by political parties about their funding. They should follow our method of spending. We have put up all our expenses on the website. We account for every paisa. The moment you have transparency in the electoral process, automatically corrupt and unfair practices will come down.
You have made a lot of allegations against various political leaders, including Modi and Sonia, saying they are corrupt. But you are criticised for not providing any evidence. Are you going to do so now?
No, I did not say it on my own. I just took it from the media. After all, you people have carried such articles about them. We have just endorsed it. You search the Google and you will find 10 stories of corruption against these people.
But will you not show facts to back your statements?
I am not trying them. Last year when I sat on dharna, we named 15 ministers and we had documentary evidence against them then. But this time we took their names on the basis of past reports and saying that there are serious allegations against them. We have to defeat them — it is a political battle. It is up to the people to decide if they want to defeat these corrupt politicians or not.
The criticism of your party is that you have started making allegations without any evidence against prominent people. For instance, your party colleague has alleged that the Lt Governor of Delhi is in cahoots with the Congress. What is the evidence that you have to make such a serious allegation?
We have observed during the past 10-15 days too many things are leaking from the LG’s office and this has raised suspicion. For instance, I was to meet the LG today, there was an agenda; but all those things were leaked out to the media last evening. So the meeting became futile. Am I supposed to respond to the LG through the media? This is not the kind of relationship that can exist between a Chief Minister and an LG. That raised suspicion, but my party colleague should have avoided using the language you mentioned.
Shouldn’t meetings between you and the LG be transparent? After all, that is what your party has advocated – transparency in action?
There is a difference between transparency and the leaking out of some information in a planned manner. Today I wrote a letter, and at the end I wrote I am not leaking out this letter, but officially releasing this letter because these issues have been raised by us in the media. The LG should have called a press conference yesterday and should have said, "Look, I have received this and am giving it to you." There should be no selective leaking out.
There was another instance: The Delhi Commission for Women’s appointment was to be done. The file went to the LG’s office and there was news on the same evening that the LG was going to raise the following objections on this file. My office contacted officials at the LG office and they told us "Don’t worry, the LG is not here and he has not written anything on this file". The next day the LG wrote the same things that were on the news channel. The important question is how did the channel know the LG’s mind? This is not transparency; this is leakage with a motive.
Who has influenced your thinking the most? Who is your role model?
Gandhiji has influenced me the most. He had stressed on speaking the truth. I realised during the past two-three years that we were very small people; we have neither money nor standing. But mischievous people conspire against us with deep conspiracies which could ruin us. Yet come what may, we have spoken the truth and always stood by honesty.
So like Gandhi you are not for a violent revolution?
Yes, we are not for a violent revolution, only a peaceful one. A violent revolution cannot become a mass movement. Only a few people will gain from a violent revolution. Once those violent people get power, they will become the problem and be autocratic.
What about influences when you lived in Hissar?
Till Class 12, I only used to study; there was pressure on my mind that I had to stand first in the class. I was good neither in sports nor cultural activities. When I got admission in the IIT, there I did different things because IITs have a different culture. In fact, I did everything but studies. IIT groomed me a lot.
Finally, Arvind Kejriwal ko itna gussa kyon ata hai? Why are you always so angry?
We are against the unjust system. I am not against individuals. I have no personal enmity with Rahul Gandhi or Narendra Modi. We need to change the prevailing system.


Tuesday, February 4, 2014

President’s name used for signing contracts for illegal biometric UID/aadhaar with foreign intelligence companies



Supreme Court heard arguments on the illegality of UIDAI and biometric aadhaar number

Foreign funds received by political parties seems to dictate their position on biometric databases

average cost per biometric UID/aadhaar is estimated to be Rs 130, for 60 crore Indian residents approx. cost is Rs 7800 crore

Like Ministers, Standing Committee on Finance is yet to realize UID/aadhaar is an identifier number, not an identity card

February 4, 2014: The Supreme Court heard the case challenging the legality of Unique Identification Authority of India (UIDAI) for collection of biometric data and demographic data of residents of Indian in order to create a Central Identities Data Repository (CIDR) of 12 digit biometric unique identification (UID)/aadhaar number on February 4, 2014.

Be it Delhi, Maharashtra, Assam, Tamil Nadu or Gujarat, State’s failure to tame violence based on parochial regionalism, casteism and communalism does not inspire confidence. The plight of migrant students and workers across the country is a chilling reminder. In such a context, State cannot be trusted with the centralized database of personal sensitive information of residents and citizens of India. This entails end of privacy and security of sovereign citizens in the way Nazi party of Germany had envisaged.

State has failed to stop violence against compatriots from North-Eastern states in Delhi and north Indians in Assam.   

The Contempt Petition (Civil) No. 144/2014 besides Writ Petition (Civil) No. 494 of 2012, W.P(C) No. 829 of 2013, W.P. (C) No. 932/2013, T.C. (C) No. 152/2013, T.C. (C) No. 151/2013 and W.P. (C) No. 833/2013 was listed for hearing in the Supreme Court. Ministry of Petroleum, its oil companies and Congress ruled States have committed contempt by making aadhaar mandatory despite Court’s order of September 23, 2013 and November 26, 2013. So far some 10 States including Rajasthan have filed their affidavits in the Court.   

Planning Commission’s notification dated January 28, 2009 created UIDAI for creating CIDR in order to collate it with MHA’s National Population Register (NPR). Once collated both CIDR of 60 crore and NPR of 61 crore residents of India will become one database of unique identification (UID) numbers which is branded and advertized as ‘aadhaar’ number. The name aadhaar does not feature in the notification that created UIDAI.

When the very legal basis of Unique Identification Authority of India (UIDAI) has been challenged, Article 73 of the Constitution of India has been invoked by Government of India to defend the creation of UIDAI and its functions.

The report of the Parliamentary Standing Committee on Finance on The National Identification Authority of India Bill submitted to both the Houses of the Parliament notes, “On being asked about the legal basis under which the UIDAI is functioning at present, and the mechanism that the UIDAI has adopted, since its inception, to deal with any of the issues like security and confidentiality of information and other offences related to issue of the aadhaar numbers, the Ministry of Planning in a written reply have inter-alia stated that:- ―….The matter about commencement of operation of the UIDAI before a legal framework was put in place was referred to the Ministry of Law & Justice wherein opinion was sought on the issue whether in absence of a specific enabling law, would there be any constraints in collecting the data (including biometrics) and in issuing the UID numbers to residents in accordance with the mandate given to the Authority. The Ministry of Law & Justice, after examining the matter, had mentioned that it is a settled position that powers of the Executive are co-extensive with the legislative power of the Government and that the Government is not debarred from exercising its executive power in the areas which are not regulated by specific legislation. It had also been opined that till the time such legislation is framed the Authority can continue to function under the executive order issued by the Government and the scheme that may be prepared by the UIDAI. It was also opined that the Authority can collect information/data for implementation of the UID scheme. Such implementation can be done by giving wide publicity to the scheme and persuading the agencies/individual to part with necessary information. The UIDAI has not faced issues such as breach of security and confidentiality, manipulation of biometrics, unauthorized access to the CIDR or other related offences since its inception…..till the time Parliament passes the Bill, these matters will be covered by the relevant laws.”

The parliamentary report records “the opinion of the Attorney-General of India on the above mentioned issues as obtained by the Ministry of Law & Justice (Department of Legal Affairs) is furnished below:- ―The competence of the Executive is not limited to take steps to implement the law proposed to be passed by Parliament. Executive Power operates independently. The Executive is not implementing the provisions of the Bill. The Authority presently functioning under the Executive Notification dated 28th January, 2009 is doing so under valid authority and there is nothing in law or otherwise which prevents the Authority from functioning under the Executive Authorisation. The power of Executive is clear and there is no question of circumventing Parliament or the Executive becoming a substitute of Parliament. On the contrary, what is sought to be done is to achieve a seamless transition of the authority from an Executive Authority into a statutory authority.  All the expenditure which is being incurred is sanctioned by Parliament in accordance with the financial procedure set forth in the Constitution. If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued. This contingency does not arise. The present Bill being implemented without Parliaments‘approval does not set a bad precedent in the Parliamentary form of Government. On the contrary, the fact that the Authority is sought to be converted from an Executive Authority to a statutory authority, it underlines the supremacy of Parliament.”

Contrary to the opinion of the Attorney-General of India, the contingency has arisen because the Bill was trashed and has not been passed. Clearly, Attorney-General has been found on wrong foot again.

The Attorney-General of India, Ministry of Law & Justice and Ministry of Planning have erred in defending the indefensible act of creation of UIDAI, the Supreme Court has held, in Dr. D.C.Wadhwa & Ors. Vs. State of Bihar & Ors (AIR 1987 SC 579), that the executive cannot take away the 51 functions of the legislature. The relevant observations, made in this regard, read as under:
“….The law making function is entrusted by the Constitution to the legislature consisting of the representatives of the people and if the executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting it to the voice of legislature, it would be nothing short of usurpations by the executive of the law making function of the legislature. The executive cannot by taking resort to an emergency power exercising by it only when the legislature is not in session, take over the law making function of the legislature. That would be clearly subverting the democratic process which lies at the core of our Constitutional Scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution, but, by the laws made by the executive. The government cannot bypass the legislature and without enacting the provisions of the Ordinance into Act of legislature, re-promulgate the Ordinance as soon as the legislature is prorogued….It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adopting of any subterfuge. That would be clearly a fraud on the Constitution…..”

The Supreme Court, in Ram Jawaya Kapur vs State of Punjab (AIR 1955 SC 549), while dealing with an argument of violation of fundamental rights, observed that ordinarily, the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. It observes that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another and that Executive can, indeed, exercise the powers of departmental or subordinate legislation, when such powers are delegated to it by the Legislature. It cautioned that if, by the notifications and acts of the executive Government, the fundamental rights have been violated, then, such executive actions have to be termed as unconstitutional.

The executive powers of the State are to fill up the gaps and not to act as an independent law making agency inasmuch as the function of enacting law, under our Constitution, lies with the Legislature and the Executive has to implement the policies/laws made by the Legislature and if the State is permitted to take recourse to its executive powers to make laws, then, we would be governed by the laws not made by the Legislature, but by the Executive.

As held by the Supreme Court, in the case of Chief Settlement Commissioner v. Om Prakash (AIR 1969 SC 33), the notion of inherent and autonomous law making power, in the executive administration, is a notion that must be emphatically rejected. This is the notion Congress led Rajasthan Government is advancing. On the issue of “Lack of competence of Executive to implement Aadhaar Scheme in absence of legislation or when legislation is being contemplated by t he Parliament”, Ashok Gehlot led Rajasthan Government filed the affidavit on December 5, 2013 submitting, “The executive power is only fettered by the fact that it should not be inconsistent with any law made by the Parliament or which contravenes the fundamental rights of the resident. In the present matter, the Union of India had the legislative competence to enact law and therefore shall proprio vigora have requisite executive power.” 

A reading of the notification of the Planning Commission to set up the UIDAI would make it evident that it does not reflect the source of executive power. Since it is found that the notification, which created the UIDAI, is not an act of delegated legislation, the notification cannot be deemed to be law.  Even perusal of the available records makes it clear that the notification was neither produced before the President of India nor did it ever receive the assent of the President of India. Hence, strictly speaking, the notification, in question, cannot even be termed as the decision of the Government of India. But contract agreements have been signed with transnational surveillance, intelligence and identification companies by UIDAI in the name of the President of India although President’s assent has not been taken. These companies are admittedly keeping data of residents of India for 7 years. Does it serve the interest of Indians? 

As per the notification that set up the UIDAI, it has the responsibility to lay down plans and policies to implement the UID scheme, which would include giving UID numbers to residents, interlinking UID with partner databases on a continuous basis, to keep the database updated, and "take necessary steps to ensure collation of NPR with UID (as per approved strategy)." UIDAI is also supposed to "identify new partner/user agencies", to "issue necessary instructions to agencies that undertake creation of databases and to “enable collation and correlation with UID and its partner databases." The notification states that the Planning Commission is the nodal agency and the UIDAI “shall own and operate the database."
It may be recollected that at a talk on UID number delivered at the World Bank on 24 April 2013, Nandan Nilekani, the Cabinet Minister responsible for UIDAI said, “First of all, this is not an ID card project. There is no card. There is a number. It's a virtual number on the cloud, and we don't give a physical card. We do send you a physical letter with your number, which you keep in your pocket, but the real value of this is the number on the cloud."

Did President of India and Planning Commission or any agency or the legislature allow storage of biometric database being created on the cloud? Is such overreach permissible? Has its ramification for security of the country and citizens been looked into? 

The question as to who owns and manages the database of biometric numbers on the cloud and whether the owner/manager is subject to the jurisdiction of Indians laws remains unexplained. It may be noted that IBM, a US company is deemed the original company with expertise in cloud computing. This involves ability of remote machines of some company to process even complex data analysis programs and shift workload from local in house machines. It is the computer networks that create cloud-a virtual space. It decreases demand for more space for hardware and software on the user's side by using cloud computing system's interface software. It is akin to a web browser. Our e-mail program, its software and storage for the mail account is on a computer cloud, for instance. In 2007, IBM announced a partnership with Google to promote cloud computing in universities. Hasn’t Edward Snowden’s disclosures revealed that even the emails of heads of states have been compromised? Have drawbacks like database security, sale of personal sensitive information and the ulterior motives of Big Data companies been examined? Besides it is not clear what is getting encrypted on the cloud and what is in the commons. Big data from developing countries which are gullible and myopic is easily accessible. Does this hold true for advanced countries as well? What was copyrighted in the earlier is increasingly being encrypted in the unfolding era. Is it irrelevant to recollect the role of IBM in facilitating holocaust in Germany in this context? With the emergence of database like CIDR and NPR, is it farfetched to apprehend a similar situation in India with the help of Nazi party like political formations.

Earlier, Parliamentary Standing Committee (PSC) on Finance in its most recent report has asked Government of India to issue instructions to State Governments and to all other authorities that 12 digit biometric Unique Identification (UID)/aadhaar number should not be made mandatory for any purpose. Meanwhile, Mukesh Ambani, the tycoon has come out in support of biometric identification providing explicit signal to all those political organizations, media, voluntary and academic organizations who are directly or indirectly dependent on him for donations. 

The Seventy Seventh Report of the 31 member Parliamentary Standing Committee (PSC) on Finance reads, “Considering that in the absence of legislation, Unique Identification Authority of India (UIDAI) is functioning without any legal basis, the Committee insisted the Government to address the various shortcomings/issues pointed out in their earlier report on 'National Identification Authority of India Bill 2010' and bring forth a fresh legislation.” It was presented to the Speaker on 18 October, 2013 upon authorization by the PSC by Yashwant Sinha, the Chairman of the PSC. This was ahead of the resolution passed by West Bengal Assembly on December 2, 2013 against aadhaar related program. Legislators in the Assembly referred to the PSC report of January 2011 trashing aadhaar. More and more state assemblies are expected to do the same.

Irregularities committed by the illegal UIDAI has been dealt with from page no. 11 to 14 of this Report of the 31 member Parliamentary Committee on action taken by Government on the recommendations contained in the Sixty Ninth Report of the Committee (Fifteenth Lok Sabha) on Demands for Grants (2013-14) of the Ministry of Planning. The PSC report observes, “the total budgetary allocations made for UIDAI since its inception upto (Budget Estimates) BE 2013-14 is Rs 5440.30 crore, out of which Rs. 2820.30 crore has been utilized upto 31.03.2013 and the remaining amount of Rs. 2620 has been allocated in BE 2013-14. The Ministry have informed that the average cost per card is estimated to range from Rs 100 to Rs 157. Taking the average cost per card to be Rs. 130, the total expenditure for issue of 60 crore cards is estimated to about Rs 7800 crore. Thus, the expected requirement of funds during 2013-14 is Rs. 4979.70 crores, whereas only Rs. 2620 crore has been kept for BE 2013-14, which is thus grossly inadequate.” Indeed none of the claims of UIDAI not add up and illustrate a case of inconsistency and breach of trust by the cabinet minister for UIDAI who is wearing countless hats without oath of office and secrecy. It is also strange that Parliamentary Standing Committee on Finance is yet to realize that UID/aadhaar is a number, not a card.

Meanwhile, in an interesting development, Mukesh Ambani of Reliance Industries 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 various disguises and under the new Companies Act, 2013.  

Coincidentally, the cover story of Forbes India magazine features “Rohini & Nandan Nilekani: The Conscious Givers” (Seema Singh, Dec. 13, 2013 issue) for having own Outstanding Philanthropist award 2013. This was in recognition of couple’s work. It may be noted that Rohini Nilekani funds both right-wing Takshashila Institution and left-leaning Economic and Political Weekly besides Association for Democratic Reforms, PRS Legislative Research and IndiaSpend, a data journalism initiative and The Hoot besides running her own Arghyam Foundation, a NGO. It may be recalled that Nandan Nilekani has been on the board of Reuters. Most media houses have been guilty of indulgent reporting about biometric identification. This can easily be proven with content analysis.  

Amidst the machinations of ID Card cartels and their coalition of national and transnational allies, examination of UIDAI’s legality creates situation for the Supreme Court to recall its earlier judgments about the power of the Government under Article 73. The Constitution of India has ensured that ours is a limited Government, not an unlimited Government Indian National Congress led Government would like to have through centralized databases at the behest of party’s national and transnational donors.

Whether or not foreign funds received by political parties like Congress, BJP and Aam Aadmi Party influence their stance on online electronic and biometric databases of Indians also merits examination.    

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

Monday, February 3, 2014

Supreme Court to hear case against UIDAI and 12 digit biometric aadhaar /UID number

The Supreme Court is to hear the case challenging the legality of UIDAI and 12 digit biometric aadhaar /UID number is on February 4, 2014. Sources have revealed that so far 10 States including Bihar and Jharkhand have filed their affidavits in the Court in this matter. 

Unique Identification Authority of India (UIDAI) was formed on Jan 28, 2009 by a notification. of Planning Commission. Cabinet Minister Nandan Nilekani's tenure as head of UIDAI comes to an end in July 2014.  

The Contempt Petition (Civil) No. 144/2014 besides Writ Petition (Civil) No. 494 of 2012, W.P(C) NO. 829 of 2013, W.P. (C) NO. 932/2013, T.C. (C) NO. 152/2013, T.C. (C) NO. 151/2013 and W.P.(C) No. 833/2013 is listed for hearing in Court no.4 of Dr. Justice B.S. Chauhan, Justice J. Chelameswar and Justice M.Y. Eqbal. 

Gopal Krishna
Citizens Forum for Civil Liberties (CFCL)
E-mail:gopalkrishna1715@gmail.com