Written By mediavigil on Wednesday, December 02, 2020 | 11:33 PM
The affidavit from Central Bureau of Investigation’s affidavit in the Court of Chief Judicial Magistrate, Bhopal provides information that implies that had Emergency been not imposed Bhopal’s catastrophe caused by the US Corporation’s acts of omission and commission would not have happened. There is a compelling logic for an independent probe in the entire issue ranging from granting of industrial license, escape of Warren Anderson, role of Indo-US CEO Forum to lobbying by industrialists and ministers to absolve Dow Chemicals of liability.
It emerges that industrial license to US Corporation’s chemicals plant was granted during the period when Indira Gandhi as Prime Minister had invoked Article 352 to declare Emergency in the country from 25th June 1975 to 21st March 1977 during 21-month regime. The 7th June, 2010 verdict of the Bhopal court (attached) states that Union Carbide Corporation too refers to the application for industrial license on page no.4. According to the CBI’s recent affidavit, on 1st January 1970, Union Carbide Company had “applied for industrial license for manufacture of 5000 tones MIC- based pesticides” required under The Registration and Licensing of Industrial Undertakings Rules, 1952. An application for the registration of an existing industrial undertaking is made to the Ministry of Industry (formerly to Ministry of Industrial Development), Government of India.
The application was signed by E. A. Munoz, a General Manager in the company. The company did not get industrial license for more than 5 years. There must have been sufficient reason to withhold permission for industrial license. After the imposition of Emergency, the company was granted the license on till 31st October, 1975 exactly nine years prior to her assassination in 1984. The verdict notes that the issuance of industrial license to Union Carbide Company for manufacture of MIC- based pesticides on 31st October, 1984.
R K Sahi, the then Deputy Director in the Ministry of Industrial Development (former Deputy Advisor, Planning Commission) informed the author that the entire department was against granting of the industrial license. The officials in the Ministry knew that obsolete and discarded technology and machinery was being transferred to India for which the license was granted by bypassing the due process. There was political interference in the granting of the industrial license.
The manufacture of Methy Isocynate (MIC) commenced with effect from 5th February, 1980, information regarding which was sent to the Department of Chemicals and Fertilizers vide letter dated 19th February, 1980. The company informed the Ministry of Industrial Development on 12th November, 1982 about the commencement of production in 1980, while requesting for renewal of agreement that was to terminate in 1982.
The verdict by Mohan P Tiwari, Chief Judicial Magistrate, Bhopal, Madhya Pradesh notes “Union Carbide Corporation , 39,Old Ridgebury Road Danbury Connecticut ,USA 06817” and Union Carbide Corporation, (Eastern) Inc. 16th Floor New World Office Building (East Wing) 24, Sabury Tsimsa Tsu Kowloon Hongkong, as absconders. On page 25 of the verdict, it states, “(z) It is worthwhile to mention here that the Government of India and the Team of Scientists admittedly was never permitted to visit the Plant at Verginia, USA. No brochure, or any other documentary evidence demonstrating the similarity between the two plants at Verginia and Bhopal has been produced before the court by the defence.”
On page 95 of the verdict, it is stated, “Mr. Warren Anderson, UCC USA and UCC Kowlnn Hongkong are still absconding and therefore, every part of this case (Criminal File) is kept intact alongwith the exhibited and unexhibited documents and the property related to this case, in safe custody, till their appearance.” Anderson is dead but the case is alive.
In the verdict, it is stated that “Dr. S. Varadarajan PW57, was the Head of the team of experts who visited the Plant Site very next day of the incident. He is an expert having excellent qualification. M.Sc. PhD. From Delhi & Cambridge several Honorary D.Scs also former President all three major Indian Academy of Science Bangalore, Indian National Academy Delhi started by Shri M.N. Shah and Indian National Academy of Engineering and a number of other Societies. (q)Dr. S. Vardharajan PW57, in para 2 of his statement states that there were several defects, such as MIC is a liquid but it evaporates with air and is highly toxic on inhilation as it is made of carbon monoxide. Carbon monoxide converted into Phosegen, is required to be utilized immediately and not to be stored. Storage of MIC should have been highly limited only to meet the requirements for conversion into Sevin as little as possible. (r) In Para 5 he further says that the design required inhibitor to prevent voluntary polymerization of MIC. Polymerization produces very high temperature and that accelerates polymerization in an explosive manner. There are design defects, such as use of Carbon, Steel and other material and pipes and other materials. These are leading to corrosion in the presence of even quantities of Hydrogen Chloride, Hydrochloric Acid (HCL) arising from Phosegen, Chloroform and other Chloride materials.” Although the design fault by the US corporation is established, the criminal liability of the Union Carbide’s case is yet to be settled.
It is noteworthy that Justice S Muralidhar, Delhi High Court in his seminal paper titled “Unsettling Truths, Untold Tales: The Bhopal Gas Disaster Victim’s ‘Twenty Years’ of Courtroom Struggles for Justice” concluded that the cases concerning Bhopal gas disaster should not conclude till justice has been done to every victim. Each strand of litigation is pending at various stages and the questions that have arisen remain unsatisfactorily answered.” He had aptly underlined in May 2004, “The extent of concealment and subterfuge practised by UCC and UCIL in screening away from scrutiny the extent of risk to which the MIC plant at Bhopal was subjecting the local population. The enormous lies of the UCC and UCIL now stand exposed. It is indeed disturbing that despite the Union of India and the State of Madhya Pradesh knowing fully well the extent of contamination of the plant site, neither of those entities did anything at all to enforce the liabilities of the UCC and UCIL and claim damages under this head. The settlement which the Supreme Court approved on February 14/ 15, 1989 stands severely flawed with every passing day. There now appears no possible justification for the order made on those two fateful dates. Every assumption on which the orders were based was wrong both on facts and on law. Notwithstanding the defiant posture of the Supreme Court in its review petition that its powers under Article 142 justified its approval of the settlement, which foreclosed all present and future civil and criminal claims, the court itself has had to reject the judgment in the review proceedings as an applicable precedent for future cases. The wrong remains an irremediable wrong. It bears repetition that the assumptions on which the settlement is approved was that the number of deaths was 3,000 and the number injured in the range of 1,00,000. In March 2003, the official figures of the awarded death claims stood at 15,180 and awarded injury claims at 5,53,015. The underestimation was slightly above 5 times. The range of compensation which was assumed in the settlement order would be payable was Rs.1 to 3 lakhs for a death claim, Rs.25,000/- to Rs.1 lakh for temporary disablement and Rs.50,000/- to Rs.2 lakhs for permanent disablement. Each death claim has been awarded not more than Rs.1 lakh and on an average an injury claim has been settled for as little as Rs.25,000/-. The failure of the judiciary to account for the views of the Bhopal Gas victim has been pervasive.”
While the fact of Supreme Court itself being on trial following such a litigation disaster is established, what is yet to be established is legislative competence to ensure universal jurisprudence for corporations. If Dow Chemicals escapes liability, if it's officials remain absconders and goes unpunished, it sets a dangerous precedent for democracies all over the world.
In Volume 5, Hazard Assessment of Chemicals, published by Hemisphere Publishing Corporation, Washington, page no. 236, it refers to suspicion that in addition to the chemical pesticide plant, the Research and Development (R&D) Centre that Union Carbide which operated in Bhopal since 1976 was experimenting with wartime use of chemicals. It remains shrouded in mystery although it was reputed to be among the best in the world with the R&D Centre having 3 green houses, 5 insect rearing laboratories and an experimental farm of 2 hectares. The processing of new chemicals at the R&D Centre had increased from 50 in 1980 to 500 in 1982 and the Centre was projected to test 5000 chemicals in 1985 because many chemicals could not be tested in USA because of stricter environmental regulations. This R&D centre too came up during Emergency. This industrial disaster has aptly been called the Nagasaki and Hiroshima of peace time but the suspicion regarding it being a consequence of experimenting with time chemicals is yet to be probed.
By the end of First World War, Union Carbide Corporation (which has merged with Dow Chemicals in 2001) had moved from metal and carbon to gases and chemicals and expanded to atomic energy production during Second World War. Its operations in India began in 1905 in Calcutta. It had dry cell manufacturing plant in Chennai in 1942 and in Hyderabad in 1967. In 1968, the agricultural office of the company had moved from Mumbai to Bhopal. At the time of Bhopal disaster it was the 7th largest company in the world headquartered at Danbury, Connecticut, USA with 700 operations in 38 countries.
The amendment in the Companies Act, 2013 done at the behest of anonymous donors of ruling parties uses the lockdown due to public health disaster to decriminalize at least 58 acts of corporate crimes. It reveals that no lessons have been learnt from the industrial disaster of 1984.
World Trade Organization (WTO)'s Appellate Body based in Geneva has been made defunct for now. WTO's Appellate Body, a standing body of seven persons that hears appeals from reports issued by Dispute Resolution Panels in disputes brought by WTO Members was established in 1995 under Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).
In official statement, website of WTO states, "Given the ongoing lack of agreement among WTO Members regarding the filling of Appellate Body vacancies, there is no Appellate Body Division available at the current time to deal with the appeal."
On receiving the request of a complaining party, the Dispute Settlement Body (DSB) establishes a Dispute Resolution Panel to hear and decide a dispute. The DSB does this by a process called the reverse consensus. The establishment of a Panel under the WTO, DSU regime is ‘automatic’. As a rule, Panels consist of three persons, who are not nationals of the Members involved in the dispute. These persons are often trade diplomats or government officials. Academicians and lawyers generally serve as Panel members. The terms of reference of the Panel are determined by the request for the establishment of a Panel, which identifies the dispute in question and the provisions of the covered agreements allegedly breached. It is the task of Panels to make an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements. The Panel is not a permanent body.
The Appellate Body hears appeals from the reports of dispute settlement Panels. The Appellate Body is a permanent, standing international tribunal. It is composed of seven persons, referred to as Members of the Appellate Body. The Members of the Appellate Body are appointed by the DSB for a term of four years. It can be renewed once. It is only the complaining or responding party that can initiate appellate review proceedings. Appeals are limited to issues of law dealt with in the Panel report or interpretations of law developed by the Panel. The Appellate Body may uphold, modify or reverse the legal findings and conclusions of the Panel that were appealed.
The WTO dispute settlement system is a government-to-government dispute settlement system for disputes concerning rights and obligations of WTO Members. Therefore, only governments are provided access to bring and adjudicate their claims before the WTO. The regime excludes within its purview the rights of individual parties, whose claims must be espoused by their respective states in-order to attain the valid locus to present their case before the WTO.
The jurisdiction of the WTO dispute settlement system is compulsory in nature. In pursuance of Article 23.1 of the DSU, a complaining Member is obliged to bring any dispute arising under the covered agreements to the WTO dispute settlement system.
With regard the jurisdiction of the WTO dispute settlement system, it must be noted that the system is confined to contentious jurisdiction. It does not have advisory jurisdiction.
Although DSU imposes a jurisdiction limitation on Panels and Appellate Body, there is no such rule on applicable law. Article 3.2 of DSU directs Panels and Appellate Body ensure clarification of the pre-existing provisions of those agreements in compliance with pre-existing customary rules of interpretation under public international law.
WTO lost its final Appellate Body member, China’s Zhao Hong on November 30, 2020. Government of USA has been seeking structural reform in the operation of the Appellate Body since 2017. As it could get it done, it engineered its collapse by enduring that departing members are not replaced. By December 2019, the terms of two of the remaining three members of the Appellate Body had expired. At least three members are required in the Appellate Body to hear new appeals. On February 11, 2020, the Office of the United States Trade Representative (USTR), Robert Lighthizer published a 174 page long Report on the Appellate Body of the World Trade Organization wherein it accused the Appellate Body of engaging in ultra vires actions (acting beyond its powers under the mandate) and obiter dicta.
It has pointed out errors in the interpretation of WTO Agreements. It has complaints against errors by Appellate Body concerned with antidumping, countervailing duties, technical barriers to Trade and safeguard tariffs. Notably, Lighthizer used to represent the steel industry which sought tariff protection through trade remedies. USA's trade remedies to the tune of 20-70 percent (by import coverage) in the steel sector were subject to a formal WTO dispute during 1999-2019. The USTR Report is available at: https://ustr.gov/sites/default/files/Report_on_the_Appellate_Body_of_the_World_Trade_Organization.pdf
Significantly, filing of appeals has not stopped. Even USA has been filing appeals. Most recently, it notified to the Dispute Settlement Body on 26 October, 2020 of its decision to appeal the Dispute Resolution Panel report in the case brought by China in “United States — Tariff Measures on Certain Goods from China”.
Whenever it becomes functional again, the Appellate Body can uphold, modify or reverse the legal findings and conclusions of such Dispute Resolution Panels like it did during January 1, 1995- December 10, 2019. The Appellate Body Reports, once adopted by the Dispute Settlement Body (DSB), must be accepted by the parties to the dispute.
Written By mediavigil on Sunday, November 29, 2020 | 9:41 PM
India being a party to the 1994 United Nations Framework Convention onClimate Change (UNFCCC), the Kyoto Protocol and the Doha Amendment to the Kyoto Protocol under the UNFCCC and the Paris Agreement, submitted its Nationally Determined Contribution (NDC) in 2015 for implementation of the Paris Agreement in the post-2020 period. The NDC has eight goals including three quantitative goals viz. reduction in the emissions intensity of Gross Domestic Product (GDP) by 33 to 35 per cent by 2030 from 2005 level; achieving about 40 per cent cumulative electric power installed capacity from non-fossil fuel based energy resources by 2030; and creating an additional carbon sink of 2.5 to 3 billion tonnes of carbon dioxide equivalent through additional forest and tree cover by 2030.
Prior to this India had constituted the National Clean Development Mechanism Authority (NCDMA) in 2003 under Article 12 of the Kyoto Protocol of 1997 which entered into force on 16 February 2005. UNFCCC entered into force on 21 March 1994. It has 197 parties. It is the parent treaty of the 1997 Kyoto Protocol which has 192 parties, 2012 Doha Amendment to Kyoto Protocol for the period period till 2020 and 2015 Paris Agreement for post 2020 period. Doha Amendment to Kyoto Protocol will come into force on 31 December 2020. As of 28 October 2020, it has 147 parties. Ironically, it will come into force on the day of its expiry. India had ratified it on 8 August, 2017. For post 2020 Period, Paris Agreement came into force 4 November 2016. India ratified it on 2 October, 2016. It has 189 parties as of now.
Significantly, India ratified pre-2020 treaty after having ratified the post 2020 treaty. As a consequence Doha Amendment to Kyoto Protocol remained a non-starter. India failed to set up a body like Apex Committee for Implementation of Doha Amendment to Kyoto Protocol as it accepted its slow death as a fait accompli.
The implementation of Article 6 of the Paris Agreement deals with market, non-market and voluntary approaches, necessitated setting up of an inter-ministerial committee to supersede the National CDM Authority (NCDMA) constituted under the Kyoto Protocol.
Paris Agreement envisages an ‘enhanced transparency framework’ with new modalities, procedures and guidelines (MPG) for the post-2020 period which will supersede the existing Monitoring, Review and Verification (MRV) system.
Paris Agreement establishes process of ‘Global Stocktake’ to periodically take stock of the implementation of this Agreement and assess the collective progress towards achieving the purpose of this Agreement and its long-term goals every five years with first in 2023.
For the purpose of ensuring a coordinated response on climate change matters that protects the country’s interests and ensures that India is on track towards meeting its climate change obligations under the Paris Agreement including its submitted NDCs, the Central Government has constitutes a Apex Committee for Implementation of Paris Agreement (AIPA) comprising of 17 members. It has been published in the Gazette of India on November 27, 2020.
In exercise of the powers conferred under sub-section (3) of section 3 of the Environment (Protection) Act, 1986 (29 of 1986), the Central Government constituted the AIPA. Its members include:
1. Secretary, Ministry of Environment, Forest and Climate Change (MoEFCC) -Chairperson
2. Additional Secretary, MoEFCC-Vice-Chairperson
3. Additional Director General (Forest), MoEFCC- Member
4. Joint Secretary, Ministry of Finance -Member
5. Joint Secretary, Ministry of Agriculture and Farmers Welfare- Member
6. Joint Secretary, Ministry of Science and Technology -Member
7. Joint Secretary, Ministry of New and Renewable Energy -Member
8. Joint Secretary, Ministry of Jal Shakti- Member
9. Joint Secretary, Ministry of Power -Member
10. Joint Secretary, Ministry of Earth Sciences- Member
11. Joint Secretary, Ministry of Health and Family Welfare- Member
12. Joint Secretary, Ministry of Housing and Urban Affairs- Member
13. Joint Secretary, Ministry of Rural Development -Member
14. Joint Secretary, Ministry of External Affairs -Member
15. Joint Secretary, Ministry of Commerce and Industry -Member
16. Joint Secretary level Officer, NITI Aayog -Member
17. Joint Secretary, MoEFCC- Member Secretary.
AIPA is required to:
(i) take measures with respect to matters referred to in the clauses (i), (ii) and (iii) of subsection (2) of section 3 of the aforesaid Act and may issue directions under section 5 thereof;
(ii) coordinate communication and reporting of NDCs to UNFCCC;
(iii) define responsibilities of concerned ministries for achieving India’s NDC goals and receive periodic information updates to monitor, review and revisit climate goals to fulfill the requirements of the Paris Agreement;
(iv) develop policies and programmes, if required, to make India’s domestic climate actions compliant with its international obligations;
(v) develop Monitoring, Reporting and Verification (MRV) protocol for National Inventory Management System (NIMS) as per the requirements under the enhanced Transparency Framework of Paris Agreement;
(vi) coordinate communication of National Communications, Biennial Update Reports and Biennial Transparency Reports to UNFCCC;
(vii) function as a National Authority to regulate carbon markets in India, under Article 6.2, Article 6.4 and Article 6.8 of the Paris Agreement in the post-2020 period;
(viii) formulate guidelines for consideration of projects or activities under Article 6 of the Paris Agreement;
(ix) issue guidelines on carbon pricing, market mechanism, and similar other instruments that have a bearing on climate change and NDCs;
(x) coordinate submission of Adaptation Communication as required under the Paris Agreement;
(xi) identify evolving requirements and propose mechanisms to facilitate achievement of India’s obligations in a cost-effective manner;
(xii) provide guidance to NDCs and its accounting for domestic, bilateral and multilateral activities or projects and ensure that these are compliant with Cabinet decisions and India’s position in international climate change negotiations;
(xiii) take note of the private sector’s contributions for combating climate change and provide guidance to help align their actions with domestic priorities;
(xiv) commission and recommend independent research and analytical studies and plan capacity building and training activities on the above issues;
(xv) seek guidance from and provide inputs to the Prime Minister’s Council on Climate Change (PMCCC); and
(xvi) any other matter, as required under UNFCCC and its Paris Agreement.
The Member-Secretary of AIPA has been responsible for its day-to-day activities including constituting sub-group to coordinate activities and carry out detailed examination of climate change related issues through experts or by consulting organizations for consideration by the aforesaid Authority or to engage or hire any consultant or specialist on contract basis on such remuneration as may be approved by the Central Government.
AIPA is empowered (a) to invite officials and experts from the Government, financial institutions, universities, academic institutions, consultancy organisations, non-Governmental organisations, civil society, legal profession, industry and commerce, as it may deem necessary for technical and professional inputs and may co-opt other members depending upon need;
(b) to interact with concerned authorities, institutions, individual stakeholders for matters relating to climate change;
(c) to take up any environmental or sustainable development issues pertaining to climate change as may be referred to it by the Central Government, and
(d) to provide recommendations to the Central Government on matters related to climate change.
AIPA is required to furnish report about its activity at least once in six months to the Central Government.
AIPA is supposed to act as per the objective of the UNFCCC and the Paris Agreement to achieve stabilisation of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. It has to enhance the implementation of the Convention and the Agreement in accordance with the principles of equity and common but differentiated responsibilities and respective capabilities, in the light of different national circumstances.
Parliamentarian Ahmed Patel raised the issue of miserable condition of inter-state migrant workers in ship-breaking industry
Written By mediavigil on Wednesday, November 25, 2020 | 5:18 PM
World Bank Group bulldozing world's largest surveillance project through Central Identities Data Repository (CIDR)
Written By mediavigil on Friday, October 16, 2020 | 6:24 AM
words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master—that’s all.'
According to Concise Oxford dictionary, surveillance means 'close observation, especially of a suspected person'. Wittingly or unwittingly the ruling parties in India are facilitating surveillance of the nation, citizens and the national assets by transnational actors—with impunity. Out of colossal ignorance, opposition parties are increasingly complicit in it.
If World Bank Group is not the master of language being used in the world economy then who else is? Is it the “financial Interpol” as well? The body which undertakes financial surveillance is a “financial Interpol” for sure. Now it is increasingly apparent that it aims to undertake "electoral surveillance" as well.
Ahead of next parliamentary elections, with the launch of 21st crore UID-Aadhaar Number and Aadhaar Enabled Service Delivery (AESD) on October 20, 2012 contemptuously ignores Parliament, Parliamentary Committee, National Advisory Council and eminent citizens and the lessons from the belated report from Planning Commission’s Group of Experts on Privacy dated October 16, 2012. What is evident is that there is an open war declared on sensitive personal information like biometric data which includes finger prints, iris scans, voice prints, DNA samples etc. The fact is a centralized electronic database of citizens and privacy, both are conceptually contradictory.
The launch exercise of October 20, 2012 stands exposed because it is officially admitting that UID-Aadhaar is mandatory contrary to what was claimed at its launch in Maharashtra on September 29, 2010. The creeping of voluntariness into compulsion through threat of discontinuance of services has been roundly castigated by Bhartiya Janta Party (BJP) leader Yashwant Sinha headed Parliamentary Standing Committee on Finance.
A revealing Policy Research Working Paper titled ‘Conditional Cash Transfers, Political Participation, and Voting Behavior’ brought out by World Bank in October 2012 “provides empirical evidence to support the notion that political participation and political views are responsive to targeted transfers.” It notes that in Colombia, “During the 2010 presidential election voters covered by FA (large scale conditional cash transfer) not only voted more often, but also expressed a stronger preference (around 2 percentage points) for the official party that implemented and expanded the program… Another possible explanation is that FA (large scale conditional ash transfer) was strategically targeted and motivated by clientelism and vote buying.”
On its website Unique Identification Authority of India (UIDAI) continues to claim that UID-Aadhhar is ‘voluntary’ and not ‘mandatory’. The million dollar question which Sonia Gandhi, Manmohan Singh, P Chidambaram, Montek Singh Ahluwalia and Nandan Monohar Nilekani need to answer is: how can Aadhaar be deemed ‘voluntary’ if service delivery is being made dependent on it. This is a grave breach of public trust. This is a deliberate exercise in deception. The proposed ‘electronic transfers of benefits and entitlements’ through ‘Aadhaar-linked bank accounts of the beneficiaries’ is crafted to make it mandatory. The claim “Each Aadhaar number will be unique to an individual and will remain valid for life. Aadhaar number will help you provide access to services like banking, mobile phone connections and other Govt and Non-Govt services in due course” is fraught with creating a platform for convergence of government and corporate sector as is aimed by the ‘Transformational Government’ project of World Bank’s eTransform Initiative launched in partnership with Governments of South Korea and France and six transnational corporations like Gemalto, IBM, Intel, L-1 Identity Solutions (now part of Safran Group), Microsoft and Pfizer.
This scheme is unfolding despite the fact that Parliament has not passed the National Identification Authority of India Bill (NIAI), 2010 proposed by the Indian National Congress led United Progressive Alliance (UPA) government. It is noteworthy that Sinha headed Parliamentary Committee in its report to the Parliament has rejected UID and biometric data collection terming it as an illegal and an unethical project.
Corroborating citizens’ concerns, the Parliamentary Committee has noted that the government has “admitted that (a) no committee has been constituted to study the financial implications of the UID scheme; and (b) comparative costs of the aadhaar number and various existing ID documents are also not available.” The Committee expressed its anxiety that, the way the project had been run, “the scheme may end up being dependent on private agencies, despite contractual agreement made by the UIDAI with several private vendors.”
The parliamentary rejection of this scheme came in the aftermath of the Statement of Concern issued in the matter of world's biggest data management project, Unique Identification (UID) /Aadhaar Number scheme and related proposals like National Intelligence Grid by 17 eminent citizens led by Justice V R Krishna Iyer. The NIAI Bill, 2010 which was introduced in the Rajya Sabha on December 3, 2010 after the constitution of the UIDAI and appointment of Nilekani as its Chairman in the rank and status of a Cabinet Minister without oath of secrecy. The Bill sought to provide statutory status to the UIDAI which has been functioning without backing of law since January 2009. At present UIDAI is functioning without any legislative mandate.
One day ahead of the launch of UID in Nandurbar District of Maharashtra on September 29, 2010, the statement of eminent citizens had asked for the project to be put on hold till a feasibility study was done, a cost: benefit analysis undertaken, a law of privacy put in place and the various concerns of surveillance, tracking, profiling, tagging and convergence of data be addressed. None of this has happened till today. The Parliamentary Committee had endorsed these concerns and recognised that the project cannot carry on till this is set right. Many countries UK, China, USA, Australia and the Philippines have abandoned such identity schemes.
Nilekani, as a member or chairperson of multiple committees of several ministries pushed for the adoption of the UID, and for the re-engineering of current systems to fit the does not meet the requirements of the UID. There have been attempts to withdraw services such as LPG and other essential commodities if a person has not enrolled for a UID. The state governments and citizens have been kept in dark about the harmful ramifications of the world's biggest data management project and how it linked with hitherto undisclosed other proposed legislations and initiatives. The UID number and related proposals pose a threat to both civil liberties as well as our natural resources like land as is evident from Land Titling Bill and Nilekani’s book that aims to create a common land market to reduce poverty.
Nilekani's promotion of Hernando de Sotto's book 'The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else' through his own book Imagining India arguing that national ID system would be a big step for land markets to facilitate right to property and undoing of abolition of right to property in 1978 in order to bring down poverty! Nilekani and the UPA government should be asked as to explain the inexplicability of such assumptions.
Notably, such UIDs have been abandoned in the US, Australia and UK. The reasons have predominantly been: costs and privacy. In the UK, the 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 Supreme Court of Philippines struck down a biometric based national ID system as unconstitutional on two grounds – the overreach of the executive over the legislative powers of the congress and invasion of privacy. The same is applicable in India.
Not surprisingly, the Parliamentary Committee observes, “The clearance of the Ministry of Law & Justice for issuing aadhaar numbers, pending passing the Bill by Parliament, on the ground 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 the legislation does not satisfy the Committee. The Committee are constrained to point out that in the instant case, since the law making is underway with the bill being pending, any executive action is as unethical and violative of Parliament's prerogatives.” The committee also observed that a National Data Protection Law is “a pre-requisite for any law that deals with large scale collection of information from individuals and its linkages across separate databases. It would be difficult to deal with the issues like access and misuse of personal information, surveillance, profiling, linking and matching of data bases and securing confidentiality of information etc.“
In a significant development following rigorous deliberations, an Indian development support organization founded in 1960, Indo-Global Social Service Society (IGSSS) disassociated itself from UID Number project which was being undertaken under Mission Convergence in Delhi. Withdrawal of IGSSS that works in 21 states of the country merits the attention of all the states and civil society organisations especially those who are unwittingly involved in the UID Number enrollment process. In its withdrawal letter IGSSS said, “we will not be able to continue to do UID enrolment…” It added, it is taking step because ‘it's hosted under the rubric of UNDP's "Innovation Support for Social Protection: Institutionalizing Conditional Cash Transfers" [Award ID: 00049804, Project: 00061073; Confer: Output 1, Target 1.2 (a) & Output 3 (a), (b)]. In fact we had no clue of this until recently when we searched the web and got this information.’
It is clear that both Mission Convergence and UIDAI have been hiding these crucial facts with ulterior motives. The letter reads, “IGSSS like many other leading civil society groups and individuals are opposed to conditional cash transfers and the UID will be used to dictate it.”
The Parliamentary Standing Committee considered the NIAI Bill, 2010 presented its report to the Parliament on December 13, 2011. The report had rejected biometric data based identification of Indians. The report is a severe indictment of the hasty and `directionless' project which has been "conceptualised with no clarity of purpose". Even the functional basis of the Unique Identification Authority of India UIDAI is unclear and yet the project has been rolled out. The Standing Committee found the biometric technology `uncertain' and 'untested'. As early as December 2009, the Biometric Data Committee had found that the error rate using fingerprints was inordinately high. In a recent interview to the press, the Director General and Mission Director of the UIDAI had admitted that fingerprints are likely not to work for authentication. The error rate could end up excluding up to 15% of the population. It has also come to light that even iris scan keeps changing and is unreliable. Yet, the ruling parties have gone ahead with the exercise.
Besides influencing the voter preference, once the Central Identities Data Repository (CIDR) is ready, it will emerge as a potential threat to minority communities of all sorts by some regime which finds them unsuitable for their political projects.
So far the entire political class has remained insensitive to the decision of the European Court of Human Rights about violation of the right to privacy and citizens’ rights. The case was heard publicly on February 27, 2008, and the unanimous decision of 17 judges was delivered on December 4, 2008. The court found that the “blanket and indiscriminate nature” of the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offenses, failed to strike a fair balance between competing public and private interests and ruled that the United Kingdom had “overstepped any acceptable margin of appreciation” in this regard. The decision is nonappealable.
Unmindful of this, in India, National databank of biometric data is unfolding which is proposed to be linked to electoral database amidst the political myopia of political parties in the face of the onslaught of the foreign biometric and surveillance technology companies. The only saving grace has been Parliamentary Standing Committee that has taken on board studies done in the UK on the identity scheme that was begun and later withdrawn in May 2010, where the problems were identified to include "(a) huge cost involved and possible cost overruns; (b) too complex;(c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs."
It may be recalled that S.Y. Quraishi, the previous Chief Election Commissioner had sent a dangerous proposal to Union Ministry of Home Affairs asking it “to merge the Election ID cards with UID”. Such an exercise would mean rewriting and engineering the electoral ecosystem with the unconstitutional and illegal use of biometric technology in a context where electoral finance has become source of corruption and black money in the country. This would lead to linking of UID, Election ID and Electronic Voting Machines (EVMs) which is not as innocent and as politically neutral as it has been made out to be. It is noteworthy that all EVMs have a UID as well. In the meanwhile, it is reliably learnt that voter registration in Manipur is happening using biometric data. This makes a mockery of the recommendations of the Parliamentary Committee on UID which notes 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”.
Opposition parties at the centre and in the States appear to be feigning ignorance about these attempts at re-plumbing the electoral ecosystem and a complicit section of civil society seems guilty of practicing ‘the economics of innocent fraud’.
The results of the October 2012 World Bank paper reveals that “voters respond to targeted transfers and that these transfers can foster support for incumbents”. The UID-Aadhaar and unified payment infrastructure proposed is an act in designing political mechanisms to capture pre-existing schemes for political patronage in spite of the absence of ‘legislative mechanisms’. It is apparent that political parties have been caught unawares into implementing the program which is designed to their political disadvantage.
Unless the total estimated budget of the Aadhaar project is revealed, all claims of benefits are suspect and untrustworthy.
At the Global Conference on Cyber Space, Prime Minister said, “I am sure most of you are already aware of Aadhaar, which is the unique biometric identity of a person…Through better targeting of subsidies, the JAM trinity has prevented leakages to the tune of nearly 10 billion dollars so far.” Sometime back, former head of Unique Identification Authority of India (UIDAI), Nandan Nilekani had claimed in Washington that so far, the government has saved about $9 billion by eliminating fraud in beneficiary lists due to 12-digit biometric Unique Identification (UID)/Aadhaar Numbers being fed into Central Identities Data Repository (CIDR). These questionable claims about savings from UID/Aadhaar have been widely reported. However, most such claims have been published without verifying the source of the data. Given the fact that these claims are based on reports of the World Bank it is relevant to recall the veracity of the bank’s own claims.
The World Bank report of 2016 claimed that Aadhaar can save Rs 70, 000 crore annually once Aadhaar is applied to all social programmes and welfare systems. This has been submitted as part of the Central government’s reply to a writ petition before the Supreme Court. The affidavit of April 27, 2017 enclosed the relevant portions of the 359-page World Bank report of 2016 on digital dividends (page 195) to underline the imminent savings “through reduce(d) leakage and efficiency gains”. This data of 11 billion refers to page 197 of the report that is based on a four-page 2015 study titled From Cash to Digital Transfers in India: The Story So Far by Shweta S. Banerjee. Shweta works on the Microfinance Gateway which is housed at the Consultative Group to Assist the Poor (CGAP). On page 1, it is stated: “The value of these transfers is estimated to be Rs 70,000 crores ($11.3 billion) per annum.” It is manifest that it is making a claim about the total value of the money that has been transferred and not about savings as a result of adopting a direct cash transfer model. The source of data cited in this study has conclusively been established to be questionable and unreliable and a major goof. Such claims have been debunked by the Comptroller and Auditor-General of India as well. If the bank’s own data has been found to be ‘puffery’, how can its volunteer’s claims inspire trust? Now that the bank has admitted its blunder in writing, it is time it came out with a clarification to ensure that misleading claims about such savings can be buried “ten fathom deep, with no chance of resurrection.” All ministers, agencies and publications reproducing the Bank’s Himalayan blunder of equating value of “transfers” with “savings in subsidy” in its study are either guilty or complicit in this not-so “innocent fraud”.
As to claims about savings from the Aadhaar project, insincerity has been evident from the outset. During Niekani’s tenure at UIDAI, Parliamentary Standing Committee on Finance in its Sixty-Ninth Report on the ‘Demands for Grants (2013-14)’ observed, “A provision of Rs. 2,620 crore has been allocated in Budget Estimate (2013-14) for UIDAI and a major part of the budget provision for Rs. 1,040 crore is earmarked for ‘Enrolment Authentication and Updation’, out of which an amount of Rs 1,000 crore has been earmarked under the head ‘other charges’.” The total budgetary allocations made for UIDAI since its inception up to 31 March 2014 was Rs 5440.30 crore. For 2009-10, it was Rs 120 crore. For 2010-11, it was Rs 1,900 crore. For 2011-12, it was Rs 1,470 crores 1,200. For 2012-13, it was 1,758 crore and for 2013-14, it was Rs 2,620.00 crore. For the year 2014-15, the budget estimate was Rs 2,039 crore. The budget estimate of expenditure on the project being implemented by UIDAI was Rs 2,000 crore in 20015-16. For the year 2016-17, the estimate was Rs 990 crore (including Rs 190 crore first supplementary). As of February 2017, the UIDAI has incurred a cumulative expenditure of Rs 8,536.83 crore. This included undefined “other charges” pointed out by the Parliamentary Committee.
Take the case of 2009-10 when the budget estimate was Rs 120 crore and the final expenditure was Rs 26.21 crore. In 2015-16, the budget estimate was Rs 2,000 crore but the final expenditure was Rs 1,679 crore. In 2016-17, when budget estimate was Rs 990 crore, the final expenditure is Rs 877.16 crore up to February 2017. Besides this, the Parliamentary Committee wondered in its report as to why inflated targets were consistently being given.
UIDAI got an allocation of Rs 1,345 crore in the 2018-19 and Rs 1,227 crore for 2019-20. But the amount for 2019-2020 was revised downwards to Rs 836.7 crore, according to Budget 2020-21 documents. Notably, excess expenditure during 2019-2020 and 2020-2021 has been met from unspent balance of 2018-19 available in UIDAI Fund. Shouldn’t the UIDAI provide the details of the expenses incurred under “other charges”?
Most recently a reply to an RTI application filed by Prof. Anupam Saraph has revealed that Department of Financial Services, Finance Ministry and other relevant government departments do not have information on rules or procedures to identify beneficiaries of state-sponsored subsidies under the Aadhaar Act, 2016. This implies that the claim made by India's finance minister in 2019 to the effect that UID/Aadhaar number had helped save Rs 90,000 crore by eliminating fake beneficiaries was misleading. The RTI applicant is seeking information on a full citation of rules to identify beneficiaries, officers tasked with maintaining a database of beneficiaries, processes to identify any fake beneficiaries, procedures and algorithms involved in the process and a district-wise break-up of the number of fake beneficiaries. His query has been transferred to several other departments of the Ministry including to the Health and Family Welfare Ministry and Indian Space Research Organisation. They too do not have any information. The First Appellate Authority too has inferred that the information sought is not available. There is no response to his query regarding change from RBI run NEFT/RTGS to an Aadhaar-enabled platform run by NPCI, a private body for transferring benefits and subsidies. Central Information Commission (CIC) is to hear the matter on October 20 in this regard.
Although it has been over 11 years since the UID/Aadhaar project was formally launched and
The estimated total budget of the biometric UID/Aadhaar number project has not been disclosed despite demand for it while seeking cost: benefit analysis. Unless the total estimated budget of the project is revealed, all claims of benefits are suspect and untrustworthy. How can one know about total savings unless the total cost is disclosed?
It is evident that anonymous donors and international financial institutions like the World Bank Group have succeeded in their dataveillance projects to mine national data wealth for surveillance capitalists and their governments in myriad disguises.