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Loss and Damage in (Para 44-47) Sharm el-Sheikh Implementation Plan Draft decision

Written By mediavigil on Saturday, November 19, 2022 | 8:46 PM

The draft decision on Sharm el-Sheikh Implementation Plan of COP-27 deals with Loss and Damage caused by unsound and unsustainable industrial and developmental practices of some 40 countries since the beginning of the industrial revolution. Out of 94 paragraphs of the draft decision, paragraphs 44-47 deals with loss and damage. It notes with grave concern, according to information in the contributions of Working Groups II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), the growing gravity, scope and frequency in all regions of loss and damage associated with the adverse effects of climate change, resulting in devastating economic and non-economic losses, including forced displacement and impacts on cultural heritage, human mobility and the lives and livelihoods of local communities, and underlines the importance of an adequate and effective response to loss and damage.

The draft decision expresses deep concern regarding the significant financial costs associated with loss and damage for developing countries, resulting in a growing debt burden and impairing the realization of the Sustainable Development Goals.

It welcomes the consideration, for the first time, of matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change, including a focus on addressing loss and damage, under the Conference of the Parties and the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement and also welcomes the adoption of decisions on matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change.

It also welcomes the adoption of decisions establishing the institutional arrangements of the Santiago network for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change to enable its full operationalization, including supporting its mandated role in catalysing technical assistance for the implementation of the relevant approaches at the local, national and regional level in developing countries that are particularly vulnerable to the adverse effects of climate change, and affirms its determination to select the host of the secretariat of the Santiago network by 2023 through a selection process conducted in an open, transparent, fair and neutral manner.

Draft decision of COP27 on matters relating to finance of Loss and Damage due to past dangerous interference with climate system

The 27th Conference of the Parties (COP-27)serving as the meeting of the Parties to the Paris Agreement responding to loss and damage associated with the adverse effects of climate change, including a focus Change, in line with other best available science, concluded that the gravity, scope and frequency of loss and damage will continue to increase with every additional fraction of a degree of temperature increase.

The decision on matters relating to finance of Loss and Damage due to past dangerous interference with climate system acknowledges that existing funding arrangements fall short of responding to current and future impacts of climate change and are not sufficient to address the existing funding gaps related to providing action and support in responding to loss and damage associated with the adverse effects of climate change.

It adopted “Matters relating to finance: matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change, including a focus on addressing loss and damage”.

It acknowledged the urgent and immediate need for new, additional, predictable and adequate financial resources to assist developing countries that are particularly vulnerable to the adverse effects of climate change in responding to economic and non-economic loss and damage associated with the adverse effects of climate change, including extreme weather events and slow onset events, especially in the context of ongoing and ex post (including rehabilitation, recovery and reconstruction) action.

It decided to establish new funding arrangements for assisting developing countries that are particularly vulnerable to the adverse effects of climate change, in responding to loss and damage, including with a focus on addressing loss and damage by providing and assisting in mobilizing new and additional resources, and that these new arrangements complement and include sources, funds, processes and initiatives under and outside the Convention and the Paris Agreement.

It also decided, in the context of establishing the new funding arrangements to establish a fund for responding to loss and damage whose mandate includes a focus on addressing loss and damage.

It establishes a transitional committee on the operationalization of the new funding arrangements for responding to loss and damage and the fund established, in accordance with the terms of reference contained in the annex, to make recommendations based on, inter alia, elements for operationalizatio for consideration and adoption by the Conference of the Parties at its twenty-eighth (COP-28) session (November—December 2023) and the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement at its fifth session (November-December 2023) with a view to operationalizing the funding arrangements.

It agrees that the recommendations to operationalize the funding arrangements and the fund shall consider, inter alia: (a) Establishing institutional arrangements, modalities, structure, governance and terms of reference for the fund; (b) Defining the elements of the new funding arrangements; (c) Identifying and expanding sources of funding;(d)— Ensuring coordination and complementarity with existing funding arrangements.

It decides that the Transitional Committee will be informed by the following, inter alia: (a) The current landscape of institutions, including global, regional and national,that are funding activities related to addressing loss and damage, and ways in which coherence, coordination and synergies among them can be enhanced;(b)‘The gaps within that current landscape, including the types of gap, such as relating to speed, ability, adequacy and access to finance, noting that these may vary depending on the challenge, such as climate-related emergencies, sea level rise,displacement, relocation, migration, insufficient climate information and data, or the need for climate-resilient reconstruction and recovery;(c) The priority gaps for which solutions should be explored; d) The most effective ways in which to address the gaps, especially for the most vulnerable populations and the ecosystems on which they depend; (e) Potential sources of funding, recognizing the need for support from a wide variety of sources, including innovative source.

It also decide to undertake the following activities for informing the recommendations: (a) Request the secretariat to conduct two workshops in 2023, with the participation of a diversity of institutions, relevant to addressing loss and damage associated with climate change impacts; (b) Request the secretariat to prepare a synthesis report on existing funding arrangements and innovative sources relevant to addressing loss and damage associated with the adverse effects of climate change; (c) Invite Parties and relevant organizations to submit via the submission portal’ by 15 February 2023 views on topics for and the structure of the Glasgow Dialogue and the workshops; (d) Invite United Nations agencies, intergovernmental organizations, and bilateral, multilateral and international financial institutions to submit inputs on how they might enhance access to and/or the speed, scope and scale of availability of finance for activities relevant to addressing loss and damage, including potential limitations and barriers and options for addressing them;support from existing funding arrangements relevant for, inter alia, responding to economic and non-economic losses, slow onset events and extreme weather events, and that they will inform the work of the Transitional Committee.

It invites the United Nations Secretary-General to convene the principals of international financial institutions and other relevant entities with a view to identifying the most effective ways to provide funding to respond to needs related to addressing loss and damage associated with the adverse effects of climate change;

It invites international financial institutions to consider, at the 2023 Spring Meetings of the World Bank Group and the International Monetary Fund, the potential for such institutions to contribute to funding arrangements, including new and innovative approaches, responding to loss and damage associated with the adverse effects of climate change.

It reiterates decision 1/CMA.3, paragraph 64, in which developed country Parties, the operating entities of the Financial Mechanism, United Nations entities and intergovernmental organizations and other bilateral and multilateral institutions, including non-governmental organizations and private sources, are urged to provide enhanced and additional support for activities addressing loss and damage associated with the adverse effects of climate change. 

It request the President of the Conference of the Parties at its twenty-seventh session,in collaboration with the incoming President of the Conference of the Parties at its twenty-eighth (COP-28) session, to convene ministerial consultations prior to the twenty-eighth session of the Conference of the Parties and the fifth s n of the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement to advance consideration and understanding of a possible outcome on this matter at that session.


Loss and Damage (Para 48) in Draft Decision reveals failure of COP 27 ?

The Draft Decision of the 27th Conference of the Parties to United Nations Framework Convention on Climate Change (UNFCCC) which serves as the meeting of the Parties to the Paris Agreement recalls Article 2, paragraph 2, of the Paris Agreement, that provides that the Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances. It reaffirms the outcomes of all previous Conferences of the Parties to UNFCCC, Conferences of the Parties serving as the meeting of the Parties to the Kyoto Protocol and Conferences of the Parties serving as the meeting of the Parties to the Paris Agreement. 

It notes the importance of ensuring the integrity of all ecosystems, including in forests, the ocean and the cryosphere, and the protection of biodiversity, recognized by some cultures as Mother Earth, and also noting the importance of ‘climate justice’, when taking action to address climate change. 

This draft decision has 100 paragraphs. It's paragraphs 44-48 deal with "Loss and Damage". It notes with grave concern, according to information in the contributions of Working Groups II and III to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC), the growing gravity, scope and frequency in all regions of loss and damage associated with the adverse effects of climate change, resulting in devastating economic and non-economic losses, including forced displacement and impacts on cultural heritage, human mobility and the lives and livelihoods of local communities, and underlines the importance of an adequate and effective response to loss and damage. 

In paragraph 45, it expresses deep concern regarding the significant financial costs associated with loss and damage for developing countries, resulting in a growing debt burden and impairing the realization of the Sustainable Development Goals. 

Paragraph 46 welcomes the consideration, for the first time, of matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change, including a focus on addressing loss and damage, under the Conference of the Parties and the Conference of the Parties serving as the meeting of the Parties to the Paris Agreement and also welcomes the adoption of decisions -/CP.27 and -/CMA.4, on matters relating to funding arrangements responding to loss and damage associated with the adverse effects of climate change. 

In para 47, it welcomes the adoption of decisions -/CP.27 and -/CMA.4, establishing the institutional arrangements of the Santiago network for averting, minimizing and addressing loss and damage associated with the adverse effects of climate change to enable its full operationalization, including supporting its mandated role in catalysing technical assistance for the implementation of the relevant approaches at the local, national and regional level in developing countries that are particularly vulnerable to the adverse effects of climate change, and affirms its determination to select the host of the secretariat of the Santiago network by 2023 through a selection process conducted in an open, transparent, fair and neutral manner in accordance with the process outlined in paragraphs 17-18 of decisions -/CMA.4 and -/CP.27. 

The paragraph 48 of the draft decision has been left blank to provide space "for funding arrangements decision". This reveals the outcome of COP-27. Unless this empty paragraph is filled with substantive content, COP-27 will be deemed a total failure. Some rich countries who are non-parties to several international environmental treaties and human rights treaties and who have been non-parties to Kyoto Protocol are resisting steps to meet the need for climate justice, equity and the principle of common but differentiated responsibilities and respective capabilities. These countries who either own nuclear weapons or host them have have no sense of morality. Besides their position on liability for past climate damages and losses, their stance with regard to UN treaty on nuclear disarmament and binding UN treaty for transnational corporations and other business enterprises establishes their adversarial relationship with Mother Earth and natural persons as a consequence of their total capture by artificial persons, the body corporates.    


UNFCCC's Draft Text for addressing loss and damage due to climate crisis released

Written By mediavigil on Wednesday, November 16, 2022 | 4:30 PM

The draft text released at the COP-27 of the United Nations Framework Convention on Climate Change (UNFCCC) underway at Egypt's Sharm-el-Sheikh since 6 November "on matters relating to funding arrangements for addressing loss and damage" on 14 November 2022 is available at: https://unfccc.int/documents/621636 (Photo:Draft text for addressing loss and damage due to climate crisis)

It has to be read with the Report of the Executive Committee of the Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts published on 25 October 2022. The report is available at: https://unfccc.int/documents/609162

The Warsaw International Mechanism for Loss and Damage adopted at the 19th Conference of Parties (COP-19) to the United Nations Framework Convention on Climate Change (UNFCCC) in 2013 promotes the implementation of approaches to address loss and damage associated with climate change impacts. The mechanism is established under the UNFCCC to assist developing countries that are vulnerable to the adverse effects of climate crisis by enhancing knowledge and understanding of comprehensive risk management approaches to address loss and damage, strengthening dialogue, coordination, coherence and synergies among relevant stakeholders and enhancing action and support, including finance, technology and capacity-building. This is being done to implement Article 8 of the Paris Agreement adopted at COP 21 of the UNFCCC. 

The Executive Committee of the Warsaw International Mechanism guides the implementation of those functions through its work plan, and with the support of thematic expert groups. The current work plan has five strategic work streams, addressing loss and damage associated with climate change impacts. In compliance with its mandate the Executive Committee has developed initiatives, such as the Fiji Clearing House for Risk Transfer that connects experts and those looking for risk transfer solutions in order to build tailor-made responses.

The recent origin of "loss and damage" can be traced in the Report of COP-13 held in Bali, Indonesia in December 2007 published in March 2008 when Kyoto Protocol signed in 1997 at COP-3 was still in force. The report is available at: https://unfccc.int/resource/docs/2007/cop13/eng/06a01.pdf

The concept of "loss and damage" is essentially modeled on 1963 Brussels Supplementary Convention on Third Party Liability from Nuclear Energy, which could not be incorporated in the text of the UNFCCC in 1992 when it was adopted and signed was signed at the United Nations Conference on Environment and Development (UNCED), the Earth Summit n Rio de Janeiro. It entered into force in 1994. The COP-1 was held in Berlin in 1995. The journey of climate law from Berlin to Sharm-El Sheikh has been incomplete without the provision for liability of some 40 rich countries for the loss and damage caused by their "dangerous interference with the climate system". 

The text addressing loss and damage due to climate crisis is likely to be finalized before the conclusion of the COP-27 on 18 November. 

Gopal Krishna


Unaddressed questions of constitutionality make Aadhaar Act and Election Law (Amendment) Act controversial

Written By mediavigil on Thursday, September 29, 2022 | 6:24 AM

Ahead of the upcoming elections in three states, petition in the Supreme Court challenging Section 4 and 5 of Election Law (Amendment) Act and Union Government’s notification dated June 19, 2022  linking UID/Aadhaar Number with Voter ID Number seems to have reached a competent High Court. In line with Election Law (Amendment) Act 2021, Registration of Electors (Amendment) Rules, 2022 under Representation of People Act, 1950 comes into force from August 1,2022 as per notification dated June 19, 2022 to link UID/Aadhaar number with Voter ID number. 

Prior to this a 10 page long The Election Laws (Amendment) Bill, 2021 was introduced to amend the Representation of the People Act, 1950 and the Representation of the People Act, 1951 in the Lok Sabha by Kiren Rijiju, Minister of Law on 15 December, 2021. The Bill's statement of objects and reasons reads:  “The Representation of the People Act, 1950 (the RP Act, 1950), inter alia, provides for the allocation of seats in and delimitation of constituencies for the purpose of election to, the House of the People and the Legislatures of States, the qualifications of voter at such elections and the preparation of electoral rolls, etc. The Representation of the People Act, 1951 (the RP Act, 1951), inter alia, provides for the conduct of elections of the Houses of Parliament and to the House or Houses of the Legislatures of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections, etc.” It claimed that “Based on the proposals taken up by the Election Commission, it is proposed to amend the provisions of the RP Act, 1950 and the RP Act, 1951.

The Election Laws (Amendment) Act provides for—(i) amendment of section 23 of the RP Act, 1950, enabling for the linking of electoral roll data with the Aadhaar ecosystem to curb the menace of multiple enrolment of the same person in different places; (ii) amendment of clause (b) of section 14 of the RP Act, 1950 specifying the 1st day of January, 1st day of April, 1st day of July and 1st day of October in a calendar year as qualifying dates in relation to the preparation or revision of electoral rolls; (iii) amendment of section 20 of the RP Act, 1950 and section 60 of the RP Act, 1951 for substitution of the word "wife" with the word "spouse" making the statut
es
 gender neutral; (iv) amendment of section 160 of the RP Act, 1951 to enable the requisition of premises that are needed or likely to be needed for the purpose of being used as polling stations, for counting, for storage of ballot boxes, voting machines (including voter verifiable paper audit trail) and poll related material after a poll has been taken accommodation for security forces and polling personnel for such period as are notified under section 30 of the said Act. The President gave his assent to the Bill on  29 December, 2021. It was published in the Gazette of India on 30 December 2021. 

The 3-page long Election Laws (Amendment) Act, 2021 has inserted sub-sections in Section 23 of the 1950 Act. The sub-sections states that "The electoral registration officer may for the purpose of establishing the identity of any person require that such person may furnish the Aadhaar number given by the Unique Identification Authority of India as per the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016: Provided that the electoral registration officer may also require the Aadhaar number from persons already included in the electoral roll for the purposes of authentication of entries in electoral roll and to identify registration of name of the same person in the electoral roll of more than one constituency or more than once in the same constituency." It also inserts the provision saying "Every person whose name is included in the electoral roll may intimate his Aadhaar number to such authority in such form and manner as may be prescribed, on or before a date to be notified by the Central Government in the Official Gazette. No application for inclusion of name in the electoral roll shall be denied and no entries in the electoral roll shall be deleted for inability of an individual to furnish or intimate Aadhaar number due to such sufficient cause as may be prescribed: Provided that such individual may be allowed to furnish such other alternate documents as may be prescribed." 

This law and the rules framed under it were challenged by Randeep Singh Surjewala, a leader of the Indian National Congress in the Supreme Court. The writ petition (civil) was filed on 8 April, 2022. It was registered on 2 May, 2022 and verified on 10 May, 2022. secretary, legislative department, ministry of law and election commission of india were made respondents. The office report noted that similarity found in the present case is based on Justice K.S.Puttaswamy (Retd) v. Union of India (2018). This petition was called on for hearing on 25 July, 2022 before the bench of Dr. Justice D.Y. Chandrachud and Justice A.S. Bopanna. The petitioner was represented by Abhishek Manu Singhvi. Upon hearing the counsel, the Court passed made the order. It reads: “The PIL-petitioner seeks to challenge the constitutional validity, inter alia, of Sections 4 and 5 of the Election Laws (Amendment) Act 2021. An efficacious and alternate remedy is available before the High Court in the exercise of its jurisdiction under Article 226 of the Constitution of India. In view of the remedy which is available in law, we grant the liberty to the petitioner to move a petition under Article 226 of the Constitution of India before the competent High Court.”

Unless a competent High Court declares Sections 4 and 5 of the Election Laws (Amendment) Act 2021 or the entire Act as unconstitutional, those citizens who are already in Voters List are at a liberty to intimate their UID/Aadhaar number "voluntarily" by April 1, 2023.

Given the fact that the constitutionality of Aadhaar Act is itself before a yet to be constituted Constitution Bench, constitutionality of provisions under Election Laws (Amendment) Act 2021 which require linking of Aadhaar number with Voter ID number raises grave questions of legitimacy of this enactment.    

Aadhaar number database, a tool for electoral ‘surveillance’, remains a Weapon of Mass Destruction for citizens and a national security threat

Written By mediavigil on Monday, September 26, 2022 | 9:03 AM

 

Briefing Paper

 

Aadhaar number database, a tool for electoral ‘surveillance’, remains a Weapon of Mass Destruction for citizens and a national security threat 

 

Aadhaar Act is a mini-Constitution   

 

States, opposition parties clueless even after four years of Section 57 of Aadhaar Act being declared unconstitutional  

 

Five years after Supreme Court’s verdict, no right to privacy law in sight, audit of UIDAI & Aadhaar schemes by CAG reveals Aadhaar Act as Black law   

 

26 September 2022: Disregarding the ten fathom deep burial of the notorious majority opinion of the Supreme Court Justices P. N. Bhagwati, A.N. Ray, M.H. Beg and Y.V. Chandrachud in ADM Jabalpur v. Shivkant Shukla (1976) case that had suspended a person's right to not be unlawfully detained by 9-Judge Constitution Bench in Justice Puttaswamy v. Union of India (2017), the majority opinion of Justices A. K. Sikri, Ashok Bhushan, A.M. Khanwilkar and  D. Misra in  Puttaswamy v. Union of India (2018) resurrected the notorious verdict by declaring Aadhaar Act to be partially constitutional on 26 September 2018. Court declared Section 57 of the Aadhaar Act which enabled body corporate and individual to seek authentication is held to be unconstitutional. Section 57 which was titled “Act not to prevent use of Aadhaar number for other purposes under law” has been “Omitted by the Aadhaar and Other Laws (Amendment) Act 2019”. Section 57 provided that “nothing contained in this Act (Aadhaar Act) shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person...” So far State governments have failed to rescind their MoUs with UIDAI in the light of the judicial and legislative decisions. Opposition parties are yet to factor in the “incomplete” audit of Unique Identification Authority of India (UIDAI) of CAG and the audit of Aadhaar based Direct Benefits Transfer that creates a compelling logic for repeal of Aadhaar Act as has been done with UK’s Nation ID scheme which was cited as an example for India to emulate.

 

UIDAI's Central Identities Data Repository (CIDR) of UID/Aadhaar Numbers and related sensitive information is akin to what Cathy O'Neil refers to as Weapons of Math Destruction while explaining the societal impact of the algorithm. It reveals how the use of big data and algorithms in a variety of fields, including education, and policing, insurance and advertising can lead to decisions that harm the poor, facilitate profiling for the minorities of all shades, reinforce racism, and amplifies inequality and creates a “toxic cocktail for democracy.” Her book won the Euler Book Prize of the Mathematical Association of America in 2019. Features used by UIDAI and its foreign technology solution providers are opaque, unregulated, and difficult to contest. They are also scalable, thereby amplifying any inherent biases to affect increasingly larger populations. These Weapons of Math Destruction are essentially Weapons of Mass Destruction.

 

Giorgio Agamben, the 74-year-old Italian philosopher who has been teaching at the University of Venice and New York University, predicted in 2004 that the ‘bio-political tattooing’ is the precursor to what would later turn into a normal identity registration of a good citizen. It provides a continuity between the world of the Nazi concentration camp and contemporary democracy. It paves the way for a genocidal liberal order. Biometrics ‘concerns the enrollment and filing away of the most private and incommunicable aspect of subjectivity,which results in the capture of the human body by the authorities for good. Till now such assault on the private human body was an exception, now it is becoming the norm. Surveillance has been used as a tool to shape the relationship between the citizen and the State. Both identification and surveillance have co-existed since time immemorial, but it is now assuming frightening architecture with the marriage of statistics of biological characteristics, and biometric technology with digital sculpture.

 

Aadhaar Act is aimed at making citizens entitlements like subsidies, benefits and service conditional on their identification based on “biometric information” such as “photograph, finger print, Iris scan, or such other biological attributes”. It suspends citizens’ right to not be denied their entitlements by their servant, the government although “Aadhaar number”is irrelevant for rights and entitlements of citizens.

 

Under Aadhaar Act “Aadhaar number” is an identification number issued to an individual who has resided in India for a period or periods amounting in all to one hundred and eighty-two days or more in the twelve months immediately preceding the date of application for enrolment.  

 

Notably, before abandoning its ID project, the UK used to cite Estonia as an example. Estonia has a population of 13 lakh people. It has come to light that 750,000 ID and e-residency cards of Estonians posed a security threat because it allowed private keys to be inferred from public keys resulting in the vulnerability of all systems depending upon the privacy of such keys facilitating identity theft or spoofing. It compelled the Estonian government to suspend these IDs. ID card manufacturer Gemalto, a Dutuch company failed to inform the Estonian government about the vulnerability. It has also come to light that Gemalto and the Estonian government have reached a compromise agreement after  the former agreed to pay 2.2 million EUR in compensation.  

 

It may be recalled that Gemalto is part of World Bank’s eTransform Initiative launched in partnership with Microsoft, Safran, Pfizer, IBM, France and South Korea. India’s UID/Aadhaar scheme is part of biometric experiments underway in 14 developing countries. As a Member of Parliament from Bihar, K.C. Tyagi had raised the issue of threat from “Use of Aadhaar Cards as proof of address for procuring new SIM cards” manufactured by Gemalto, world biggest Sim card manufacturer on 13 March, 2015 in the RajyaSabha and referred to “I.B. red flag over ADHAR based SIM card”. Drawing the attention towards  reported hacking into the data of this SIM card manufacturer by US and British intelligence agencies posing a national security threat as the majority of phones in India may have SIMs of that company. Raising the issue during Zero Hour, K C Tyagi, the Janata Dal-United MP said American and British spy agencies have hacked into the database of Dutch company Gemalto. Gemalto's SIM cards are widely used in India including by bureaucrats and the defence establishment. He added that the government's decision to link Aadhaar data base with SIM cards could potentially compromise strategic information. It poses a major national security threat. Sukhendu Sekhar Roy, the Trinamool Congress MP from West Bengal associated himself “with the concern expressed by Shri K. C. Tyagi.” Notably, the West Bengal assembly has passed a unanimous resolution against Aadhaar.

 

Examination of the official documents indicates that the Indian UID/Aadhaar project was pushed by an ID cartel as a reaction to scrapping the National ID project of the UK. The technology solution providers like i. IBM, ii. Microsoft, iii. Oracle, iv. Computer Associates, v. Novell, vi. Honeywell, vii. HP, viii. Red Hat, ix. ILANTUS Technologies, x. MPhasis and xi. PwC were part of the 35 member task force constituted by the union government for identity management in 2006.  

 

The concerns over the breach of citizens’ data has prompted several state governments to halt the ongoing data collection process for a National Population Register (NPR).  The fear is that the information sought under NPR is much wider in scope and could potentially be used to target a section of the society.

 

What the anti-NPR advocates do not realise is that there are more solid reasons to fear the NPR because it is not just a census exercise, but a larger data convergence project that can result in the government putting its citizens under surveillance, that is unwarranted and dangerous to the secular and constitutional credentials of the country. NPR's linkage with Aadhaar number plays a central role here.

 

In fact, MHA's NPR and MEITY's UIDAI's CIDR of UID/Aadhaar numbers are aimed at creating an architecture for indiscriminate mass surveillance of the present and future voters who are being structurally coerced to give their consent to the immoral and illegitimate exercise of their profiling for countless times.

 

It has turned every newborn into a suspect. There is a file being created to track and profile him for good. Like Indian NSA's threat to his adversaries about having a file on them, having a UID/Aadhaar number and NPR automatically creates a file of the Indian residents in question. Even infants are not spared in this cruel scheme of things.

 

In a country where no intelligence chief or official has held accountable for the assassination of two of its Prime Ministers and for betraying nation's secrets, can it be hoped that all those who compromised India's data security will be made liable for their treacherous acts of transferring the sensitive data of present and future citizens including ministers, soldiers, judges and ministers?

 

There is a compelling logic for setting up a High Powered Commission of Inquiry to probe the ongoing bartering of citizen's databases and transfer of national data assets to foreign entities.

 

The States should un-sign the MoUs they have signed with UIDAI and discontinue both UID/Aadhaar and NPR exercise to resist the emergence of an unlimited government, unlimited by the Constitution of India and Constitutionalism.

 

Here are some reasons for repealing Aadhaar Act:

 

1. The majority order of the Supreme Court's 5-Judge Constitution Bench on September 26, 2018, has pointed out that the UID/Aadhaar Number project and NPR project are part of the one database convergence scheme. NPR has been mentioned at least on eight occasions in the order to underline the same. A centralized database is the most vulnerable entity in the digital world. The leakage of the database of UK’s children has revealed the old maxim, “If you have nothing to hide, you have nothing to fear, has been given a very public burial”. This has been thoroughly debunked. This maxim is attributed to Nazi propaganda minister Joseph Goebbels. Database State, a report from the UK, states: ‘In October 2007, Her Majesty’s Revenue and Customs (Department) lost two discs containing a copy of the entire child benefit database.’ Only blind faith in a Utopian State can persuade people to think that they have nothing to fear after trusting their personal sensitive information to a Database State and non-State actors like Safran, Ernst & Young and Accenture.

 

2. One of the earliest documents that refer to UIDAI, a 14-page document titled 'Strategic Vision: Unique Identification of Residents' prepared by Wipro Ltd for the government envisaged the close linkage that the UIDAI's Aadhaar would have with the electoral database. The use of the electoral database mentioned in Wipro's document remains on the agenda of the proponents of UID/Aadhaar.

 

3. The 41-page Wikileaked document titled 'Creating a unique identity number for every resident in India' that declared itself to be a 'Confidential- property of UIDAI' states, "The Unique ID or UID will be a numeric that is unique across all 1.2 billion residents in India. The UID number will not contain intelligence. In older identity systems, it was customary to load the ID number with information related to the date of birth, as well as the location of the person."

 

This document reveals that from day one the Prime Minister wanted to create a file on each of "1.2 billion residents", the division of work between Ministry of Home Affairs (MHA)'s NPR and Ministry of Electronics and Information Technology (MEITY)'s UID/Aadhaar was/is merely an attention diversion tactics to outwit citizen's scrutiny.

 

The ongoing merger of the electoral database with UID/number debunks UIDAI's claim that UID/Aadhaar number "will not contain intelligence" and "the location of the person."From these disclosures, it seems that the government has adopted an adversarial role vis-a-vis Indians and acting beyond its constitutional mandate in order to pander to the interests of the commercial czars, non-state actors and foreign intelligence companies.

 

4. In an RTI reply dated October 25, 2013, UIDAI shared a truncated contract agreement with Ernst & Young. The contract agreement states that "the Unique ID will be a random 12-digit number with the basis for establishing uniqueness of identity being biometrics". It announces that "we will provide a Unique Identity to over 113.9 crore people."

 

This is evidently a fraudulent announcement because UIDAI with which the agreement has been signed had the mandate to provide Unique Identity to only 60 crore residents of India, and not to 113.9 crore people.

 

It is evident that while the government kept Ernst & Young informed about its motive, it kept states, citizens, the parliament and the Supreme Court in the dark. The contract agreement reveals that "biometric systems are not 100 % accurate" and "uniqueness of the biometrics is still a postulate." This admission pulverizes the deceptive edifice on which MEITY's UID/Aadhaar and MHA's NPR rests.

 

5. Section 57 of un-amended Aadhaar Act, 2016 stated that "Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect".

 

It implies that UID/Aadhaar of "over 113.9 crore people" has been shared with foreign private body corporates like Ernst & Young. It is only after the horse had escaped the barn that the door was closed through Section 25 of Aadhaar and Other Laws (Amendment) Act, 2019 in compliance with the Court's order dated September 26, 2018.

 

Section 25 of the Amendment Act 2019 states that Section 57 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 has been omitted with effect from July 24, 2019.

 

6. At paragraph 8 of the majority order authored by Justice A K Sikri, it is recorded that "a Processes Committee was set up on July 03, 2006, to suggest the process for updation, modification, addition and deletion of data and fields from the core database to be created under the Unique Identification for BPL Families project.

 

This Committee, on November 26, 2006, prepared a paper known as 'Strategic Vision Unique Identification of Residents'. Based thereupon, the Empowered Group of Ministers (EGoM) was set up on December 04, 2006, to collate the National Population Register under the Citizenship Act, 1955 and the Unique Identification Number project of the Department "of Information Technology.

 

Subsequently, "a Committee of Secretaries was formed. The said Committee gave its recommendations which were discussed by EGoM. After approving the Aadhaar Scheme in principle, it instructed the Cabinet Secretary to convene a meeting to finalise the detailed organisational structure of the UID.

 

After considering the recommendation of the Cabinet Secretary, Notification No. A-43011/02/2009-Admn.I was issued on January 28, 2009, by the Government of India which constituted and notified the UIDAI."  Annexure 1 of this notification that constituted UIDAI deals with the Role and Responsibilities of UIDAI. The fourth point in this notification reads: "implementation of UID scheme will entail" taking "necessary steps to ensure collation of NPR with UID (as per. approved strategy)".

 

7. The minutes of a meeting of the Committee of Secretaries held under Chairmanship of Cabinet Secretary November 23, 2015 talks of "integrating the twin approaches under NPR and Aadhaar."

 

The "integrating the twin approaches under NPR and Aadhaar" which is referred here is the same as taking "necessary steps to ensure collation of NPR with UID (as per. approved strategy)" underlined in the notification mentioned in the Aadhaar Act.

 

8. A Ministry of Home Affairs communication dated July 19, 2019 states that "The National Population Register (NPR) thus prepared, was seeded with Aadhaar number during its updation exercise in 2015 along with a collection of demographic details of new household members. Approx. 60 crores Aadhaar numbers have been seeded in NPR Database."

 

This communication discloses that "It has now been decided by the Ministry of Home Affairs to update the existing NPR database during April 2020 - September 2020 along with House listing & Housing Census phase of Census 2021. While updating the NPR, the Aadhaar number of all the individuals whose Aadhaar number is not available in the NPR Database will also be collected along with various other items. Necessary notification for updating NPR in 2020 will be issued shortly."

 

9. The Court's order reveals that "A core group was set up to advise and further the work related to UIDAI...The core group, inter alia, decided that it was better to start with the electoral roll database of 2009 for undertaking the UIDAI project." If an UID/Aadhaar-enabled Biometric Attendance System is indeed a ‘digital equivalent’ of an ‘age-old attendance register,’ why did the National Human Rights Commission object to a radio collar which can also be argued by sophists to be a ‘digital equivalent’? It may be recalled that the Union ministry of external affairs had agreed with the NHRC’s assessment. The Union minister of external affairs informed Parliament that some 18 students were detained and released in the US with radio monitoring devices on their ankles, pending completion of investigations for possible involvement in irregularities. ``We have also strongly protested the radio collars as unacceptable, which should be removed immediately.’ If the ‘digital equivalent’ means biometric equivalent as well, then radio collar and DNA-based identity and attendance will also be deemed equivalent to ‘age-old attendance register.’ It is quite evident that such claims are deeply misleading.

 

10. The reference to ‘such other biological attributes’ in Section 2 (g) of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, and the definition of ‘biometrics’ under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000 underlines that it includes ‘the technologies that measure and analyse human body characteristics, such as “fingerprints”, “eye retinas and irises”, “voice patterns”, “facial patterns”, “hand measurements” and “DNA” for authentication purposes.’ It is abundantly clear that the plan of UID/Aadhaar-based surveillance does not end with the collection of fingerprints and iris scan, it goes quite beyond it. If surveillance is not a big deal, why is Edward Snowden in Moscow since June 23, 2013? Why is Australian journalist Julian Assange one of the 675 prisoners in Belmarsh, a category A prison, in London since April 2019 and why was he in the Ecuadorian embassy in London since July 19, 2012? If surveillance is indeed such an innocent act, then why are the entire US and European establishments paranoid about surveillance including electoral surveillance from Russia?

 

A confidential document of UIDAI titled 'Creating a unique identity number for every resident in India', leaked by Wikileaks on 13 November 2009 reveals that "One way to ensure that the unique identification (UID) number is used by all government and private agencies is by inserting it into the birth certificate of the infant. Since the birth certificate is the original identity document, it is likely that this number will then persist as the key identifier through the individual's various life events, such as joining school, immunizations, voting etc." There was never an occasion wherein there was an all-party meeting to seek the consent of all the political parties with regard to merger of UID/Aadhaar database with "electoral roll database". The amendment to Section 182 of the Companies Act, 2013 has taken away the restriction that contribution can be made only to the extent of 7.5% of net average profit of three preceding financial years, enabling even newly incorporated companies to donate via electoral bonds. "This opens up the possibility of shell companies being set up for the sole purpose of making donations to political parties, with no other business consequence of having disbursable profits", according to the Election Commission of India. The amendment to Section 182(3) abolished the provision that companies should declare their political contributions in their profit and loss accounts. This requirement is diluted to only showing the total expenditure under the head. This would "compromise transparency" and pave the way for the "increased use of black money for political funding through shell companies". It is evident that the provision of Electoral Bonds in the Companies Act and the merger of Voter-ID Number and Aadhaar Number through amendment in Aadhaar Act is an exercise in merger of electoral database and Aadhaar database that will lead to total control of the extinguish political and civil rights of present and future generations by such rewriting of the political geography of the country with hitherto unknown adverse consequences.   

 

According to the Concise Oxford Dictionary, surveillance means ‘close observation, especially of a suspected person’. So far the Supreme Court has not had the occasion to examine the most glaring aspect of unlimited-cyber biometric surveillance, which entails close observation of all the present and future Indians indiscriminately as suspects. The yet to be constituted 7-Judge Constitution Bench will have the opportunity to pronounce the verdict on the constitutionality of
biometric-electoral surveillance through UID/Aadhaar database. Like UK’s opposition parties India’s  opposition parties have the last opportunity to promise repeal of Aadhaar Act, a mini-Constitution emulating the example of 44th Constitutional Amendment Act, 1978 because in the name of biometric identification, civil death of citizens is being normalised and naturalised as if Article 21 of the Constitution has been abrogated.   

 

 

For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 9818089660, E-mail: krishnagreen@gmail.com, Web: www.toxicswatch.org 

 

 
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