Featured Articles

Latest Post

Combustion based biomass waste to energy plant in Agra, a public health disaster Agra i

Written By mediavigil on Sunday, February 21, 2021 | 7:45 PM

Approval for combustion based waste to energy plant in Agra, Uttar Pradesh is an invitation to public health and environmental disaster from heavy metals like Mercury, greenhouse gases and persistent organic pollutants (POPs) like Dioxins. It is apparent that Supreme Court's order of 18 February, 2021 is an unreasoned order. 

The court ought to have factored in recommendations of Supreme Court's Waste to Energy Committee. It seems the petitioner and the concerned authorities did not inform the court about the necessity to comply with the UN's Minamata Convention, UN Framework Convention on Climate Change, Paris Agreement and Stockholm Convention on POPs. This biomass waste based power plant violates these UN treaties. It ignores the White Paper on Air Pollution in Delhi. The same public institutions feign to be alarmed when air pollution from biomass burning envelopes the cities. 

In Writ Petition (C) No.13381/1984, the 3-Judge Bench of Chief Justice and Justices A. S. Bopanna and V. Ramasubramanian  passed an order saying, "the  Agra Nagar Nigam has prayed for permission to establish waste to energy plant & construction and demolition plant in Kuberpur landfill site at Agra. Mr.  Tushar Mehta, learned Solicitor  General  of India has pointed out to a letter dated 08.01.2021 by which the Vice-Chairman of the Agra Development  Authority has written to the Municipal Commissioner, Agra, stating that an application may be filed again in the Taj Trapezium Zone (TTZ) after taking permission from this Court for the establishment of the plant."

The bench observed, "We find that this   question is squarely covered by our   order dated 06.12.2019 in which this Court has clearly stated that there shall be no impediment for the authorities to consider the pending essential environmental clearance which are necessary to secure   essential  amenities within Taj Trapezium Zone (TTZ). This Court also observed that not allowing construction of such basic infrastructure can itself create new polluting waste and threaten the environment. We are informed that the Agra Nagar Nigam has obtained all necessary clearances."

Its order states: "In  these circumstances, we consider it  appropriate to grant the application. The applications for directions are therefore allowed in terms of prayer 13(a) which reads:Allow to the applicant to establish waste to energy plant & construction &  demolition plaint in Kuberpur landfill  site at Agra in accordance with law."

Having been a participant at the public hearing for a similar plant in Agra, one can predict that construction of this toxic plant in the city of Taj Mahal will face bitter public resistance for environmental health protection. 


Indian state wants right to be absent for protection of farmers and citizens

Written By mediavigil on Sunday, February 07, 2021 | 1:32 AM

After granting the right to anonymity, the ultimate privilege to the investors and donors of ruling parties, the Indian State wants the right to be absent in the face of cries for social, political and economic injustice in general and for farmers’ demand for justice in particular. What started as seemingly small amendments in the Companies Act in 2002 and 2013 for corporate political donations has emerged as an exercise in rewriting the political and electoral geography in the aftermath of amendments in relevant laws through Finance Acts of 2017 and 2018. It has paved the way for forging relationships that enable and facilitate accumulation by dispossession. The decriminalisation of some 60 corporate crimes through yet another amendment during the pandemic has left not even an iota of doubt about the quid pro quo underway. Indian citizens in general and farmers in particular have been able to identify some of these corporate investors and donors who have vindicated the scholars of white-collar crimes. These scholars have contended for long that corporations which used to be artefacts of laws have transformed their roles, now they have ensured that laws have become artefacts of corporations. 

The enactment of the three illegitimate agriculture market laws are linked to the amendment in the companies act and related laws for electoral finance and anonymous foreign donations. These investors and donors have coerced the State to withdraw from its responsibilities towards farmers, the producers of primary agricultural commodities including women, land owners, tenants, sharecroppers, farm workers, plantation workers, milk producers and everyone engaged in crop cultivation, shifting cultivation, apiculture, sericulture, vermiculture and agro-forestry.   

Farmers are demanding presence of the State to safeguard economic survival of majority of Indian households, national dignity, civilizational heritage and their future. Ironically, State is resisting their demand under the colossal influence of investors and donors of ruling parties. State wants to escape from its responsibilities. State wants the right to be remain unaccountable by refusing to exercise its role as a regulator.   

A bizarre situation is being witnessed wherein defenders of the regulatory role of the Indian State, the 500 farmers’ organisations are being defined as Un-Indian by the news channels owned by the investors and donors of ruling parties. The latter have made the State act like an adversary with cruelty towards the villagers and the farmers. These purveyors of news are establishing a weird, stupid and vulgar cultural norm devoid of truth and reason because of their political relevance unmindful of the fact that Seventh Schedule of Constitution of India that allocates subjects on which central legislature and state legislature can legislate, is being made irrelevant. “Markets” are specifically mentioned as a State subject in entry 28 of List II under the Seventh Schedule. They are unmindful of states’ right to legislate on state subjects- agriculture and market.

State Executive has been undermining judiciary in instalments through tribunalization in the aftermath of the verdict of Allahabad High Court against I. Gandhi in 1975, now it is barring the jurisdiction of all civil courts as well and confining it to the jurisdiction of Sub-Divisional Magistrate and Collector or Additional Collector for dispute resolution under the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Act, 2020. This law provides for trade area beyond  Section 13 of the Act states that “No suit, prosecution or other legal proceedings shall lie against the Central Government or the State Government, or any officer of the Central Government or the State Government or any other person in respect of anything which is in good faith done or intended to be done under this Act or of any rules or orders made thereunder.” The fact remains under the law "person" includes an individual; a partnership firm; a company; a limited liability partnership; a co-operative society; a society; or any association or body of persons duly incorporated or recognised as a group under any ongoing programmes of the Central Government or the State Government. It is apparent that the investors and donors of the ruling parties have made themselves immune from “suit, prosecution or other legal proceedings” in respect of anything under the guise of being “any other person” mentioned in this legal provision. It is depriving every present and future Indian including farmers of the absolute fundamental right to constitutional remedy recognized under the Constitution of India. 

It is noteworthy that Section 3 sub-section 1 of Essential Commodities Act, 1955 deals with the powers to control production, supply, distribution, etc., of essential commodities. It states that "If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military operations, it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein.” This provision of 1955 along with the amendment of 1967 with regard to defence and military operations, makes the continued presence of State quite explicit in both the ordinary and extraordinary circumstances in keeping with the constitutional obligations.  

Reversing the pre-existing provision, Section 2 of Essential Commodities (Amendment) Act, 2020 [Removal of Stockholding Limits Act] inserts a new sub-section (1A) after sub-section 1 of Section 3 of the Essential Commodities Act, 1955. The new sub-section states that “Notwithstanding anything contained in sub-section (1) of Section 3 “the supply of such foodstuffs, including cereals, pulses, potato, onions, edible oilseeds and oils, as the Central Government may, by notification in the Official Gazette, specify, may be regulated only under extraordinary circumstances which may include war, famine, extraordinary price rise and natural calamity of grave nature”. It is evident that State is withdrawing from its role to perform regulatory role with regard to control production, supply, distribution, etc., of essential commodities. It is apparent that the new amendment has failed to factor in the fact that India is currently faced with extraordinary circumstances of war, extraordinary price rise and natural calamity of grave nature like pandemic. The legal provisions of 1955 and 1967 were enacted with the realization that in a vast and diverse country like India, even ordinary circumstances are extraordinary in nature. Contrary to the constitutional obligations, this new provision makes the State absent in ordinary circumstances.   

The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020 provides for a national framework on farming agreements that claims to protect and empower farmers to engage with agri-business firms, processors, wholesalers, exporters or large retailers for farm services and sale of future farming produce at a mutually agreed remunerative price framework in a fair and transparent manner. "Farming agreement" refers to a written agreement entered into between a farmer and a Sponsor, or a farmer, a Sponsor and any third party, prior to the production or rearing of any farming produce of a predetermined quality, in which the Sponsor agrees to purchase such farming produce from the farmer and to provide farm services. It includes "trade and commerce agreement", where the ownership of commodity remains with the farmer during production and he gets the price of produce on its delivery as per the agreed terms with the Sponsor. It also includes "production agreement", where the Sponsor agrees to provide farm services, either fully or partially and to bear the risk of output, but agrees to make payment to the farmer for the services rendered by such farmer. Every such agreement is required to provide for a conciliation process and formation of a conciliation board consisting of representatives of parties to the agreement. Where the parties to the farming agreement fail to settle their dispute under that section within a period of thirty days, then, any such party may approach a Sub-Divisional Magistrate or later a Collector or Additional Collector in appeal for deciding the disputes under farming agreements. Under this law too it is provided that no civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any dispute action taken by these district authorities. In this manner, the State has withdrawn the judicial function of its civil courts and expressed touching faith in the tried, tested and failed judicial competence of subordinate executive authorities.    

While feigning to be seeking right to be absent, Indian State is uniting executive powers and judicial powers in the same person. It is evidently an exercise in blasphemy against constitutionalism and Constitution of India and the sacred theory of separation of powers enunciated by French philosopher, Montesquieu in his The Spirit of Law influencing framing of democratic Constitutions. These three farm market laws are contrary to the theory of separation of powers and principles of constitutionalism which secures nations from "despotism".

Dr. Gopal Krishna

----

The author is a law and public policy researcher and a member of the steering committee of Nation for Farmers


Emergency paved the way for industrial disaster of Bhopal

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. 

Gopal Krishna


 



 


Government of USA makes WTO's Appellate Body defunct

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”. 

On October 27, 2020, WTO released its notification along with the communication from USA, addressed to the Chairperson of the Dispute Settlement Body which has been circulated to Members at the request of the delegation of the United States. The communication reads: "Pursuant to Article 16 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the United States hereby notifies the Dispute Settlement Body of its decision to appeal issues of law covered in the report of the Panel in United States – Tariff Measures on Certain Goods from China (WT/DS543/R & WT/DS543/R/Add.1) and legal interpretations developed by the Panel. At this time, no division of the Appellate Body can be established to hear this appeal in accordance with DSU Article 17.1. The United States will confer with China so the parties may determine the way forward in this dispute." The Dispute Resolution Panel report was circulated to WTO members on 15 September, 2020.

The report observed that "Under Article 3.8 of the DSU, in cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. The Panel concludes that, to the extent that the measures at issue are inconsistent with certain provisions of the GATT 1994, they have nullified or impaired benefits accruing to China under that agreement within the meaning of Article XXIII:1(a) of the GATT 1994. 8.4." It further states: "Pursuant to Article 19.1 of the DSU, the Panel recommends that the United States bring its measures into conformity with its obligations under the GATT 1994."  The 66 page long report is available at:https://www.wto.org/english/tratop_e/dispu_e/543r_e.pdf alonwith a Addendum to the Panel's Report which is available at: https://www.wto.org/english/tratop_e/dispu_e/543r_a_e.pdf 

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. 


Gopal Krishna

India sets up Apex Committee for Implementation of Paris Agreement

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.   

Add caption

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

Now that parliamentarian Ahmed Patel is no more, it germane to recollect that in 2015, on the eve of Labour day, he had raised the issue of inhuman working and living conditions of inter-state migrant workers at Ship-breaking yard, Alang beach, Bhavnagar, Gujarat in Rajya Sabha. 

Given below is the full text of his statement in Rajya Sabha

Sir,

I would like to raise the issue of the condition of the workers in Alang’s Shipbreaking yards. In a study commissioned by the National Human Rights Commission, it was found that the costs to workers health and the environment were alarming. There are close to 35,000 migrant workers, but the authorities have only installed 12 showers and 6 toilets, meaning most workers would have to defecate in the open. Let us hope that Swach Bharat reaches here.

The yards have taken the lives of 470 people since 1983. These figures are at best a rough estimate, as the impact of the long-term exposure to chemicals as a result of ship-breaking was not taken into consideration. The National Institute of Occupational Health would that 15 out of 94 examined workers showed signs of disease caused by working with asbestos. The health facilities there are also understaffed and under-stocked. This is a major concern, as the work that is done is Alang can result in serious injuries, which require immediate medical attention.

The workers don’t receive any proper safety training and are not given proper protective gear. Very often these workers don’t receive their wages on time. The study has brought to notice what we have always known, that the conditions in these yards are terrible for the worker, and the regulators have all turned a blind eye.

I urge the Government to take necessary steps to ensure the basic rights of these labourers are safeguarded, and that the most basic human dignities are afforded to these people.

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

'When I use a word,' Humpty Dumpty said, in a rather scornful tone, 'it means just what I choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make words mean so many different things.' 'The question is,' said Humpty Dumpty, 'which is to be master—that’s all.'

 Lewis Carroll’s character Humpty Dumpty in Through the Looking Glass

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.    

 An official publication of World Bank Group’s International Monetary Fund (IMF) reveals, “Surveillance, a central pillar of IMF activities and responsibilities in the modern era, is not an easy concept to grasp.”

 

It will have us accept that only the master can grasp and communicate the meaning of ‘surveillance’. IMF commiserates with the lesser mortals stating that it knows that ‘surveillance’ does sound terrible. This is understandable. 

 

Jacob A Frenkel, an official of IMF is quoted as arguing that this word ‘surveillance’ should be made to sound benign. It “should give way to concepts of cooperation, partnership, and consultation; of bringing on board the rest of the world’s considerations.” This publication states, “In practice, surveillance has encapsulated all of the above notions, but at its best it has been motivated by and has itself promoted a spirit of international cooperation.”

 

This publication informs that the first official use of the term came in June 1974. IMF was concerned that “Few, if any countries, however, were prepared to be subjected to surveillance in that strong sense. The 1980s therefore became a decade of experimentation, in which the staff and management of the Fund constantly probed and prodded to see how far they could go in persuading countries to respond positively to Fund analysis and advice.” This concern of IMF is deeply touching. But IMF’s efforts did yield results and by the mid-1990s, a “silent revolution” had happened in countries like India, it infers.

 

By 2013, at least citizens of 35 countries and their heads know exactly what ‘surveillance’ means. It does sound terrible. Both National Security Agency (NSA) of the US and World Bank Group have a different and benevolent sounding meaning in mind. The publication admits, “Even among IMF staff, those questions did not yield uniform answers.” This incomprehension among them is understandable because The Concise Oxford Dictionary of Current English tells them that it means “close observation especially of a suspected person.” Heads of financial institutions, Barack Obama and the Prime Minister should consider getting this dictionary meaning changed through their power of persuasion, peer pressure and advertising to avoid confusion that still exists despite relentless and sincere efforts at least since 1974.  

 

This IMF publication states, “If surveillance was to have any substance, the Fund would have to develop that influence: through the power of persuasion (Fund management and staff to country authorities), through peer pressure (country to country in the forum of the Fund), and through publicity (Fund to the public). The relative merit of each of these channels was always the subject of much debate. Was publicity appropriate, or would it conflict with and even nullify the benefits of persuasion and peer pressure?” The publication uses the word ‘Fund’ to refer to IMF.

 

IMF asks itself, “Did surveillance mean that the IMF was expected to be a financial Interpol, seeking out and punishing errant behavior, or should its role be more that of a faithful confidant of those entrusted with implementing macroeconomic policies around the world?

 

Hasn’t India become “a faithful confidant” of World Bank Group?

 

There is a chapter “On the Map: Making Surveillance Work” under the section Revolutions in the International Monetary System in the publication titled Silent Revolution: The International Monetary Fund 1979–1989 by James M Boughton published in 2001. The chapter deals with the principles and procedures of surveillance. It may be recalled that Pranab Mukherjee was deeply engaged with the World Bank in various roles from 1982 to 1985.

Notably, it was Mukherjee who formed Unique Identification Authority of India (UIDAI) and announced its setting up during the 2009-10 budget speech. He was the Finance Minister from 24 January 2009 to 26 June 2012. In fact, it is remarkable that within four days of taking over as Finance Minister, he got the UIDAI notified on 28 January 2009 by the Planning Commission. In all likelihood, he was part of the Empowered Group of Ministers (EGoM) too, which took a decision about the formation of UIDAI on 4 November 2008.

It may recalled that while presenting the Union Budget in 2011-12, Mukherjee, the then Union Finance Minister informed the Lok Sabha that Technology Advisory Group for Unique Projects (TAGUP) headed by Nandan Nilekani, chairman, UIDAI  has submitted its report dated 31 January  2011 and its recommendations have been accepted in principle. As a consequence the sovereign function of tax collection is all set to be handed over to an entity called National Information Utility (NIU), which will be a private company with a public purpose and with profit making as the motive but not profit maximizing. This is yet another lesson either in language or in linguistic corruption.

 

Earlier, it must be recalled that on 11 January 2011, Business Standard reported that “India has sought an assessment under the Financial Sector Assessment Programme (FSAP) of the International Monetary Fund (IMF) and the World Bank. “India did a self-assessment (by the Committee on Financial Sector Assessment, or CFSA) of its financial sector in 2009. This has given us the confidence to get our financial sector evaluated by international financial institutions like IMF and the World Bank. We have voluntarily sought a full-fledged Financial Sector Assessment Programme,” the then finance minister Mukherjee said at the second International Finance Conference at the Indian Institute of Management (IIM) Calcutta. This is an admission of the fact that India has subjected itself to the surveillance principles and procedures of IMF. By now Indians know how tricky the use of word ‘voluntary’ is when the Bank is involved in any way.

Chronologically, after this announcement by Mukherjee, Government of India and the World Bank signed a loan agreement of $150 million on 10 May 2011 for the e-Delivery of Public Services Development Policy Loan under the National e-Governance Plan (NeGP). NeGP is a flagship e-governance initiative approved in May 2006 as a national program to create 'single window' Common Services Centers. NeGP has identified 27 priority projects to be transformed using e-services including details on land records in some 250,000 areas. This loan from the International Bank for Reconstruction and Development (IBRD) has a 5-year grace period and a maturity of 18 years.

And on 13 May 2011, delivering his speech ‘India in a Multipolar World’, Dr Ngozi Okonjo-Iweala, managing director of World Bank said, “The President of India has recently spelled out among the priorities of her government a set of reforms on governance. This includes initiatives to promote e-governance, which is potentially an effective tool for enhanced transparency, equity and accountability as well as hopefully for administrative reforms. I met Nandan Nilekani this morning and was impressed by the potential impact of the Unique ID scheme for service delivery—more than five million Unique IDs have been issued since September 2010, providing people with a legal identity they probably did not have before. Innovative ICT tools such as this can be an effective mechanism to both supply information and services to citizens and receive feedback from citizens.”

No one will dispute that World Bank has been an undemocratic organization since its inception and is likely to remain so for all times to come. This motivated outreach towards citizens at large especially in developing countries merits attention. It is noteworthy that the annual reports of Congress party led United Progressive Alliance (UPA) refers to biometric-based Aadhaar/UID as parts of its e-governance initiative.   

Earlier on 20 April 2010, the World Bank Group announced that it has thrown open the doors to its statistical databases to provide free, open, and easy access to its comprehensive set of data on living standards around the globe - some 2,000 indicators, including hundreds that go back 50 years. It appears to be a case of paving the path for developing countries. And on 23 April 2010, the Bank launched its eTransform Initiative by signing a memorandum of understanding (MoU) with France and South Korea besides transnational companies like L-1 Identity Solutions, IBM, Gemalto, Pfizer and others. It was launched in the presence of Ministers of Finance and Communications from many developing countries. The World Bank is currently funding 14 projects related to e-government and e-ID around the world.

 

It merits recollection that Mukherjee was the Finance Minister during January 1982 to December 1984, which is part of the relevant period with which the IMF publication deals. He led the Indian delegation at the annual meetings of the World Bank and International Monetary Fund (IMF) during 1982, 1983, 1984, 2009, 2010 and 2011 and he was on the Board of Governors of the IMF during 1982 to 1985 and during 2009 – 2012. Mukherjee was rated one of the best five finance ministers of the world in 1984 according to a survey conducted by “Euro Money” Journal published from New York and was declared ‘Finance Minister of the year’ for Asia in 2010 by “Emerging Markets”, the journal of record for the World Bank and the IMF.

 

Unless one is not acting as a foundation stone of the “central pillar” of World Bank Group, why will it shower accolades on him and likes of Nandan Nilekani?

 

There is a revelation in the publication that IMF is concerned with the “viability of military spending” as well. IMF took a formal position on the role of military spending in national economic policy in October 1991. At that time, executive directors concluded that, “as military expenditure can have an important bearing on a member’s fiscal policy and external position, information about such expenditure may be necessary to permit a full and internally consistent assessment of the member’s economic position and policies” If this is not an exercise in surveillance, which admittedly sounds ‘terrible’, what else is it?

 

Metamorphosis in simple words means transformation. Metamorphosis of the state, the government and citizen is the core motive of electronic and biometric identification as part of the Transformational Government initiative of the World Bank Group.

Mukherjee's presidential speech used to link welfare services to biometric Aadhaar/UID disregarding its illegitimacy and unconstitutionality. 

In a related development, a RTI application partially revealed the content of MoU/ Contract executed between UIDAI with L1 Identity Solutions Operating Company, currently a subsidiary of French conglomerate Safran Group, Sagem Morpho Security Pvt Ltd, a subsidiary of Safran Group, Ernst & Young, a US company, Accenture Services Pvt Ltd, a US company and ID Solutions company and the tender cost.  At the time of award of contract to L1 Identity Solutions Operating Company was a US company.

A reply dated 25 October 2013 from Shirish Kumar, assistant director general and chief public information officer (CPIO) of UIDAI reveals that the value of contract for L1 was Rs33.87 crore and for Ernst & Young it was Rs7.05 crore. With regard to Sagem Morpho Security Pvt Ltd, it states that the “effort is on find the data” about the value of contract awarded. This reply in the matter of Sagem Morpho Security Pvt Ltd is quite intriguing. Notably, L1 has undergone metamorphosis and become part of Safran Group along with Morpho Security Pvt Ltd. 

It is relevant to reiterate in this context that Nilekani was given ID Limelight Award at the ID WORLD International Congress, 2010 in Milan, Italy on 16th November wherein Safran Morpho (Safran group) was a key sponsor of the ID Congress. Its subsidiary, Sagem Morpho Security Pvt Ltd has been awarded contract for the purchase of Biometric Authentication Devices on 2 February 2011 by the UIDAI. 

Earlier, on 30 July 2010, in a joint press release, it was announced that “the Mahindra Satyam and Morpho led consortium has been selected as one of the key partners to implement and deliver the Aadhaar program by UIDAI (Unique Identification Authority of India).” This means that at least two contracts have been awarded to the French conglomerate led consortium.  Is it a coincidence that Morpho (Safran group) sponsored the award to chairman, UIDAI and the former got a contract from the latter?

Nilekani was given the award "For being the force behind a transformational project ID project in India...and "to provide identification cards for each resident across the country and would be used primarily as the basis for efficient delivery of welfare services. It would also act as a tool for effective monitoring of various programs and schemes of the government."

It may also be noted that UIDAI awarded contracts to three companies namely, Satyam Computer Services Ltd (Mahindra Satyam), as part of a “Morpho led consortium”, L-1 Identity Solutions Operating Company and Accenture Services Pvt Ltd of US for the “Implementation of Biometric Solution for UIDAI” on 30 July 2010.

Following Central Information Commission (CIC)’s intervention in the matter of application filed by Col Mathew Thomas, an octogenarian defence scientist, and submissions by the author on his behalf, UIDAI shared its contract agreement with French and US biometric technology companies but crucial pages are missing from the contract agreement after the CIC heard the matter on 10 September 2013. CIC has ruled, “Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of and in the interest of ‘We the people’ in the past.

For long UIDAI refused to share copy of all contracts given to French and US biometric technology companies, namely, L-1 Identity Solutions and Accenture respectively. L-1 was a US company till recently. 

Sushma Singh, the Information Commissioner gave UIDAI’s letter written to CIC submitting that "contractual obligation in respect of BSP (Biometric Solution Provider) contracts has expired. Therefore, UIDAI has no objection in sharing the following contract details:-a) Copy of contract of UIDAI with M/s L-1 Identity Solutions for Biometric Technology; and b) Copy of contract of UIDAI with M/s Accenture for Biometric Technology".

After examining these documents with regard to the Accenture for Biometric Technology, it has come to notice that the first 237 pages appear to be in order but after that there is a one pager titled Annexure J Technical Bid (Technical Bid as submitted by M/s Accenture Services Pvt Ltd). The Technical Bid document is missing. After that there is a one pager titled Annexure K Commercial Bid Commercial (Bid as submitted by M/s Accenture Services Pvt Ltd). The Commercial Bid document is missing.

With regard to the L-1 Identity Solutions for Biometric Technology, one noticed that the first 236 pages appear to be in order but after that there is a one pager titled Annexure I non-disclosure agreement as submitted by L-1 Identity Solutions Operating Company Pvt Ltd. But this document is missing. After that there is a one pager titled Annexure J Technical Bid as submitted by L-1 Identity Solutions Operating Company Pvt Ltd. The Technical Bid document is missing. After that there is a one pager titled Annexure K Commercial Bid as submitted by L-1 Identity Solutions Operating Company Pvt Ltd. The Commercial Bid document is missing. UIDAI has been asked for the missing pages from the copies of the contract.

The reasoning of UIDAI in its letter to CIC dated 10 September 2013 stating that "contractual obligation in respect of BSP (Biometric Solution Provider) contracts has expired” is flawed in the light of the previous judgment of CIC.

Under the Right to Information (RTI) Act, the PIO cannot deny information citing commercial confidence for agreements between a public authority and private party.

While giving this judgment, CIC said “The claim of 'commercial confidence' in denying access to agreements between private parties and the masters of the public authorities—citizens—runs counter to the principles of the Right to Information.”

“Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of ‘We the people’. Hence if any citizen wants to know the contents of such an agreement, he is in the position of a principal asking his agent to disclose to him the terms of the agreement entered into by the agent on behalf of the principal. No agent can refuse to disclose any such information to his principal,” the CIC said in its order dated 27 July 2009.

The Commission was of the view that “The objectives of the RTI Act would be defeated if public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the government’, and therefore these must be kept away from the Public. In fact public feels that quite often the contrary is the case,” the Commission noted. The CIC observed, “Any so called imaginary moral or reciprocal obligation cannot be permitted to subvert a solemn constitutional and legal obligation” and directed the PIO to provide copy of the agreement.

In the contract agreement between the President of India, as purchaser and L-1 Identity Solutions Operating Company, as a "Biometric Solution Provider" it has been officially admitted that the latter is a corporation of US based in Delaware as of 24 August 2010.  L-1 has since been bought over by French corporate conglomerate, Safran Group after the US Committee on Foreign Investment in the United States (CFIUS) was convinced that there are no unresolved national security concerns with respect to the transaction. L-1 Identity Solutions announced agreement to be acquired by Safran on 20 September 2010.

From the contract agreement between the President of India, as purchaser and Accenture Services Pvt Ltd as a "Biometric Solution Provider" dated 1 September 2010 it is evident that it has not been disclosed that Accenture Services Pvt Ltd is a subsidiary of Dublin, Ireland based Accenture plc, a US company. Till 1 January 2001 it was known as Andersen Consulting. As a consequence of French corporate conglomerate Safran’s purchase of US company L-1 Identity Solutions, the de-duplication contracts of UIDAI’s Centralized Identities Data Repository (CIDR) and Home Ministry’s National Population Register (NPR) which was given to foreign companies on 30 July 2010 to three companies now lies with two companies of French and US origin namely, Safran Group and Accenture.

UIDAI has not disclosed whether there has been any fresh agreement between UIDAI and Safran Group and its subsidiaries and who all are the biometric solution providers after the expiry of the “contractual obligations” with L-1 Identity Solution and Accenture. The contract agreement with Accenture Services Pvt Ltd at clause 15.1 it reads: "By virtue of this Contract, M/s Accenture Services Pvt Ltd/Team of M/s Accenture Services Pvt Ltd may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable."  The purchaser is President of India through UIDAI.

The clause 15.3 reads: "The Data shall be retained by Accenture Services Pvt Ltd not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future."

The contract agreement with L1 Identity Solutions Operating Company at clause 15.1 reads: "By virtue of this Contract, M/s L1 Identity Solutions Operating Company/Team of M/s L1 Identity Solutions Operating Company may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable." The purchaser is President of India through UIDAI.

The clause 15.3 reads: "The Data shall be retained by L1 Identity Solutions Operating Company not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future."

This implies that all the biometric data of Indians which has been collected so far is now available to US Government and French Government. 

Something remains rotten in the state of Denmark, says Shakespeare in Hamlet. So is the case with Delhi High Court case on non-disclosure of info on foreign firms like ACCENTURE & SAFRAN Group. Notably, 13th judge heard it on 11th December, 2019 and adjourned it to 01-05-2020. No new date has been scheduled for hearing it so far. 

Writ Petition (Civil) No. 9143/2014, Delhi High Court case on non-disclosure of information of foreign firms by UIDAI despite CIC’s order has been pending since 2014. It has beeen listed 22 times before 10 different single judge benches Next date of hearing was listed for 19 November 2018 before Justice Vibhu Bakhru. 1st hearing too was before him.

But instead of Justice Bakhru, on November 19, 2018, another new judge, Justice Suresh Kumar Kait heard the matter and passed the order: “Mr Lalit Bhasin, learned counsel appearing on behalf of the proposed respondent M/s Accenture services Pvt.Ltd. seeks time to file reply to the instant application.Let needful be done within four weeks.On taking steps, let service be affected upon other non-applicants, returnable on 14.03.2019.”

On March 14, 2019, another fresh judge, Justice V. Kameswar Rao heard the matter and passed the order: “Let a copy of the application seeking impleadment be given to the counsels for the proposed respondent Nos.4 and 5. Reply to the application be filed within four weeks.Rejoinder, if any, be filed within two weeks thereafter.List on August 28, 2019.”

On August 28, 2019, yet another new judge,  Justice Jayant Nath  heard the matter and passed the order: “At request of the learned counsel for the petitioner, adjourned to 11.12.2019.”

So far 13 judges have heard the case within a span of 5 years. On 11th December, 2019, the case came before Justice Jayant Nath. He passed an order saying, “On the request of the learned counsel for the respondents, adjourned to 01.05.2020”. As of October 18, 2020, the High Court website shows that the matter is before Court No. 11 but no date has been fixed for hearing an issue of huge national importance. 

Can one ask Hon’ble Delhi High Court Chief Justice and Hon’ble Registrar General as to why this national security related case is not getting the priority it deserves? Big Data foreign firms seem to have subverted this public institution as well, no?


In a significant development, on 18 October 2013, Ernst & Young, the firm which had won a contract from UIDAI has agreed to pay $99 million to former Lehman Brothers investors who have accused the auditor of helping Lehman misstate its financial records before the investment bank's collapse triggered a financial crisis in 2008. Lehman is accused of using an accounting practice to misleadingly understate its leverage to make itself appear more financially solvent. In a reported statement Ernst & Young claimed that it is settling the case "to put this matter behind”. It has been alleged that Ernst & Young contributed to the fraud by failing to investigate and ensure the truthfulness of the statements. The question is why Ernst & Young was awarded the contract by UIDAI despite knowledge about its credential at least since 2008.  

In the matter of National Identification Authority of India (NIAI) Bill, 2010, “NHRC’s views on the NIAI Bill, 2010″ in the Human Rights Newsletter (Vol. 18 No.8, August 2011) reveals that biometric UID/Aadhaar Number has dangerous ramifications is quite relevant in this regard. The Bill seeking the rubber stamp of legitimacy for UIDAI was trashed by the Parliamentary Standing Committee (PSC) on Finance. NHRC’s view was presented to the PSC. NHRC’s view on “need for protection of information” and “the possibility of tampering with stored biometric information” and “disclosure of information in the interest of national security” has been ignored by Congress Party because it has accepted the principles and procedures of surveillance fixed by the World Bank Group. It is apparent that this party is facilitating surveillance of the nation, citizens and the national assets by transnational actors with impunity. The party has structurally adjusted the national institutions to ensure it.


Biometric data based 12 digit Unique Identification (UID)-Aadhaar Number linked welfare schemes is being bulldozed with the ulterior motive of altering voting behavior of the citizens by creating a ‘universal identity infrastructure’ linked to ‘unified payment infrastructure’.

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.

Under the influence of World Bank Group, the Government of India has been pushing for PAN-Aadhaar linkage in the name of saving the country from the embarrassment of incorrect reporting as part of the nation’s Foreign Account Tax Compliance Act and Common Reporting Standard obligations. Now it has come to light that that PAN-Aadhaar linkage destroys tax history and makes benami taxpayers indistinguishable from those who have been paying taxes for decades before 2014. A research paper reveals that UID/Aadhaar requirement to issue PAN violates the Income Tax Act that requires the PAN be issued by the Income Tax Officer. It creates a compelling logic for deleting Section 139AA of the Income Tax Act and all acts and rules that have notified the use of UID/Aadhaar. Supreme Court's verdicts Aadhaar Act is yet to be decided further by a yet to be set up 7-Judge Bench because admittedly some gnawing constitutional questions have remained unanswered so far. 

Although it has been over 11 years since the UID/Aadhaar project was formally launched and 

three years have passed since the verdict on the right to privacy was delivered, the promised law to safeguard citizen's right to privacy and data protection has not been enacted as yet.

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.  

Do opposition parties have the political courage to make it an electoral issue in national interest or do they agree with Humpty Dumpty that SURVEILLANCE means “cooperation, partnership, and consultation”?


----

Gopal Krishna

 
Copyright © 2013. ToxicsWatch, Journal of Earth, Science, Economy and Justice - All Rights Reserved
Proudly powered by Blogger