An analysis of the SC verdict on UID/Aadhaar

Gopal Krishna

Gopal Krishna is an activist with Citizens Forum for Civil Liberties (CFCL). He can be contacted at gopalkrishna1715[at]gmail.com.

Supreme Court exposes complicity of Congress and opposition parties on 12 digits Biometric Aadhaar/UID Number

States must withdraw from MoUs they signed with UIDAI

Manifestos of political parties must make their stand clear on scrapping of Biometric Identification ahead of elections

Negative coalition of bankers and surveillance technology companies rearing its heads against citizens’ rights

Supreme Court has exposed the ulterior motives behind ‘voluntary’ 12 digits Biometric Aadhaar/ Unique Identification (UID) Number for creating a Central Identities Data Registry (CIDR) of ‘usual residents’ of India and for “doing government process re-engineering” through its order dated September 23, 2013. The questionable intentions of Planning Commission’s Unique Identification Authority of India (UIDAI) face yet another legal and constitutional scrutiny. UIDAI has failed in the earlier examinations. Indian National Congress, non-Congress parties and the opposition parties appear complicit in the unconstitutional, illegal and illegitimate exercise because they failed to demand its scrapping and maintained silence when in breach of trust Congress ruled states and centre attempted to make it mandatory.

It may be recollected that Punjab and Haryana High Court bench headed by Chief Justice A K Sikri passed an order on March 2, 2013 after hearing a matter challenging a circular making Aadhaar 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 The moment Court raised questions of laws, the circular was withdrawn by the central government.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.

UIDAI and related projects treats every Indian as a subject of surveillance unlike UK which abandoned a similar project (that used to be cited by Wipro Ltd in promotion of UID) because it is “untested, unreliable and unsafe technology” and the” possible risk to the safety and security of citizens.” It was recorded by Parliamentary Standing Committee (PSC) on Finance that submitted a report to both the Houses of Parliament on December 13, 2011 trashing the biometric identification project and the post facto legislation to legalize UIDAI and its acts of omission and commission since January 28, 2009 till the passage of The National Identification Authority of India Bill, 2010. Notably, UK Home Secretary explained that they were abandoning the project because it would otherwise be ‘intrusive bullying’ by the state, and that the government intended to be the ‘servant’ of the people, and not their ‘master’.

The silence of Wipro Ltd which had prepared the ‘Strategic Vision on the UIDAI Project’ document and submitted to the processes committee of the Planning Commission set up in July 2006 is deafening. This document too seems to be missing from public domain.

Supreme Court order vindicates the Punjab and Haryana High Court order, PSC report and the Statement of Concern dated September 28, 2010 issued by 17 eminent citizens including Justice VR Krishna Iyer, Prof Romila Thapar, SR Sankaran, Justice AP Shah, KG Kannabiran, Bezwada Wilson, Aruna Roy and Prof Upendra Baxi seeking halting of the project. The Parliamentary Standing Committee on Subordinate Legislation is also seized with the compliant on “Subordinate Legislation for Biometric Identity Card NRIC and Aadhhar/UID IS illegal & illegitimate and Constitutional, Legal, Historical & Technological Reasons Against UID/Aadhaar Scheme on 18.3.2013.”

State Governments especially those ruled by non-Congress party are so deaf they do not seem to hear even when the verdict shouts. In the aftermath of Supreme Court’s order State Governments must withdraw from the MoU they signed with UIDAI.    

All the non-Congress ruled States are opposed to National Counter Terrorism Centre (NCTC) citing erosion of State’s autonomy but quite strangely so far they have failed to see the link between CIDR, National Intelligence Grid (NATGRID), National Counter Terrorism Centre (NCTC) and Sam Pitroda’s Public Information Infrastructure and Innovations (PIII) which are part of the same political culture that leaves intelligence agencies beyond the ambit of legislative scrutiny.

The entire issue is quite grave because the genocidal idea of biometric identification is linked with the holocaust witnessed in Germany. Such identification exercises have rightly been abandoned in UK, Australia, China, USA and France.  Notably, Nandan Nilekani has admitted, “To answer the question about what is the biggest risk” of centralized database of biometric identification, he said “in some sense, you run the risk of creating a single point of failure also” in his talk at the World Bank in Washington on April 24, 2013. No one knows who would be held legally liable for such failures. Who is being held accountable for leakage of data from UIDAI at present?

Notably, World Bank’s President who introduced Nilekani at the lecture expressed his patronage for the project. It is not surprising given the fact that essentially it is part of its eTransform Initiative launched in April 2010 for 14 developing countries in partnership with transnational companies like L1, IBM and governments of France and South Korea. 

It is the inevitability of such failure that led to the extermination of a large human population in Germany in the 1940s. In the case of CIDR and linked initiatives it is not the failure instead convergence of data, tracking, profiling, tagging and the violation of norms of privacy is embedded in its design.  Nilekani explained at his lecture at the Bank, “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”. The biometric number is an identifier which is used to “authenticate” and verify whether or not the person is what the person claims to be. The ridiculous thing about the Congressmen in general and supporters of the project in particular is that they do not even know as to what is aadhaar? On January 31, 2013, it came to light that members of Union Cabinet were unaware as whether it is a number or a card. Instead of facing the issue upfront, a Group of Ministers was set up to resolve it but no one knows whether it has been resolved.

It also reflects how undemocratic Indian National Congress is. The decision to impose biometric aadhaar number was autocratically and unilaterally decided without taking consent from even its own party members who are then expected to defend this indefensible project. Nilekani has misguided the party in this regard.

Almost five years of advertising and marketing by UIDAI with help of a negative coalition of bankers, biometric technology companies and a section of mainstream media that holds rights of citizens in contempt created an illusion among the uninformed citizenry that what pre-existing 15 identity proofs could not do, this illegitimate and illegal biometric identifier will be able to do.

The advocates and supporters of biometric identification who are part of the negative coalition that unconditionally and blindly supports linking of fish baits for trapping the poor in the biometric database are game for turning the all the Indians into guniea pigs for an  experiment that has resulted in incineration of human beings in the past.  The fact of this experimentation is revealed from what Nandan Nilekani said in his speech at the Centre for Global Development, Washington. He said, “Our view was that there was bound to be opposition. That is a given…we said in any case there is going to be a coalition of opponents. So is there a way to create a positive coalition of people who have a stake in its success? So, one of the big things here is that there is a huge coalition of, you know, organisations, governments, banks, companies, others who have a stake now in its future. So, create a positive coalition that has the power to overpower or deal with anyone who opposes it.” Positive coalition of progressive political parties, peoples’ movements and informed citizens must expose the collaborators of undemocratic biometric technology companies, bankers and NGOs and give a befitting reply to them. They lost in UK, Australia, China, France and USA; they will lose in India too. 

Nilekani’s method of reasoning is a case study, he says, “We came to the conclusion that if we take sufficient data, biometric data of an individual, then that person’s biometric will be unique across a billion people. Now we have to find that out. We haven’t done it yet. So we’ll discover it as we go along” on April 23, 2013. At his lecture at World Bank on April 24, 2013, he said, “nobody has done this before, so we are going to find out soon whether it will work or not”. No one can tell as to what is his premise and what is the inference or how is inference is deduced from the premise he has articulated.

Notably, the Strategy Overview document of the UIDAI said that “enrolment will not be mandated” but added, “This will not, however, preclude governments or registrars from mandating enrolment”. It must be noted that Nandan Nilekani headed several committees whose recommendations made Aadhaar mandatory.

Tricked by the marketing blitzkrieg, some political parties are wary of taking a position that would appear to be against pro-poor schemes not realizing that come what may the real beneficiary of this biometric identification is UIDAI which wants to meet its target of 60 crores of Indians by 2014.

Amidst leakage of files from the Prime Minister’s office and leakage of public money in scam after scams in the Indian National Congress led Government, the claim of attempting to reduce leakage in the system by using questionable plumbers like Nilekani does not inspire even an iota of confidence. Nilekani admitted at his lecture the Centre for Global Development in Washington in April 2013 that UIDAI has “created huge opportunity for fingerprint scanners, iris readers”. The purchase of these machines with money is also a leakage that merits probe. Leakage can be plugged by rigorous implementation of Right to Information Act and decentralization of decision making instead of adopting a centralization approach and technological quick fixes.

The entire Indian and international media was taken for a ride regarding a so called turf war between the Ministry of Home Affairs and UIDAI which media was made to understand that got resolved by diving the Indian population in two parts of 61 crore and 60 crore for coverage under National Population Register (NPR) which also generates Aadhaar number and UIDAI. The fact is the terms of reference of the UIDAI mandated it “take necessary steps to ensure collation of National Population Register (NPR) with UID (as per approved strategy)”, to “identify new partner/user agencies”, to “issue necessary instructions to agencies that undertake creation of databases… (to) enable collation and correlation with UID and its partner databases” and UIDAI “shall own and operate the database”. The executive notification dated January 28, 2009 that set up UIDAI mentions this. The entire exercise appears to have been stage managed. 

Nilekani has recommended Radio Frequency Identification (RFID) for the “unique identification” of vehicles. If the real motive is not surveillance then how is that UIDAI Chairman wears several hats like an intelligence person to undertake unauthorized and illegitimate tracking.

On June 29, 2013, Nilekani reportedly revealed that they were in preliminary discussions with embassies to use the UID number to “simplify visa application procedures”. Isn’t passport a sovereign document? Notably, Nilekani refers to Aadhaar as akin to internal passport. For passport, there is Passport Act, under what Act is this ‘internal passport’ being promoted? 

Supreme Court order must be looked at in the light of what of Government of India’s approach paper on privacy states. It says, “Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralised manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage.  However, all this is likely to change with the implementation of the UID Project. One of the inevitable consequences of the UID Project will be that the UID Number will unify multiple databases. As more and more agencies of the government sign on to the UID Project, the UID Number will become the common thread that links all those databases together. Over time, private enterprise could also adopt the UID Number as an identifier for the purposes of the delivery of their services or even for enrolment as a customer. Once this happens, the separation of data that currently exists between multiple databases will vanish.” On this ground alone, the project should be abandoned as it concerns not only the present generation but future generations as well. 

It is noteworthy that Attorney General of India had submitted to the Parliamentary Committee that UIDAI will function only till the passage of the UID Bill. The Bill was not passed. Now the UIDAI should seize to exist because it is legally invalid. How can a notification of Planning Commission be deemed legally valid when even the ordinance issued by the President of India become invalid if the Bill is not passed within six months.   

Citizens Forum for Civil Liberties (CFCL) has been pursuing a campaign against the biometric based Unique Identification (UID)/Aadhaar Number, National Population Register (NPR), National Intelligence Grid (NATGRID), National Counter Terrorism Centre (NCTC), Radio Frequency Identification (RFID) and Direct Cash Transfer since 2010. It had appeared before the Parliamentary Standing Committee on Finance that trashed the UID Bill on December 13, 2011 in its report to the Parliament. It was an applicant before the National Human Rights Commission (NHRC), which in an order date December 27, 2012 addressed to Secretary, Union Ministry of Home Affairs communicated human rights concerns regarding UID and RFID submitted to it by CFCL. CFCL is an applicant before the Parliamentary Standing Committee on Subordinate Legislation. CFCL is also an applicant before the Press Council of India on the complicity of some media organizations in the matter of enrolment for legally questionable biometric identification. 

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