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Why Justice Sikri’s order on Aadhaar project and Aadhaar Act is unconstitutional- Part XV

Written By BiharWatch on Wednesday, November 28, 2018 | 3:20 AM


While verdict of the 5-Judge Constitution Bench of Supreme Court on Union Ministry of Electronics and Information Technology (MEITY)’s Unique Identification (UID)/Aadhaar number database project being implemented by Unique Identification Authority of India (UIDAI), Aadhaar Act 2016 and indiscriminate metadata collection of Indian residents is 1448 pages long, the portion which is authored by Justice Arjan Kumar Singh is only 567 pages long. This part of the order has been written by him but it has been signed by 45th Chief Justice of India Dipak Misra and Justice Ajay Manikrao Khanwilkar. In a separate order, Justice Ashok Bhushan too has expressed agreement with it. The dissenting order of Justice Dr. D.Y. Chandrachud of this 5-Judge Constitution Bench assumes greater significance because it is he who authored the leading order of the 9-Judge Constitution Bench on right to privacy in this very case which had the concurrence of all the judges. A harmonious construction of the verdict of Justice Chandrachud as part of 9-Judge Bench and his dissenting order as part of 5-Judge Bench shows a crystal clear picture of Justice Sikri’s order. It is evident that latter’s order is inconsistent with the order of 9-Judge Constitution Bench. Justice Sikri’s order itself is inconsistent with his own observations. It has evaded even those facts, sequence of events and scientific evidence which are on record.         
 
Referring to UID/Aadhaar number database project, Justice Sikri observes: “Its use is spreading like wildfire, which is the result of robust and aggressive campaigning done by the Government, governmental agencies and other such bodies….The Government boasts of multiple benefits of Aadhaar.” It may be recalled that first Chairman of UIDAI used to refer to “robust and aggressive campaigning” as marketing saying success or failure of UID/Aadhaar depends on its marketing or campaigning. The judge in question recognizes that this project is a result of marketing. He carefully uses the word “boasts” with regard to government’s claims about its “multiple benefits”.

The opening statement of the Justice Sikri authored order reads: “It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one. Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions.” This opening statement of the order is questionable from scientific point of view.  A report “Biometric Recognition: Challenges and Opportunities” of the National Research Council, USA published on 24 September 2010 concluded that the current state of biometrics is ‘inherently fallible’. That is also one of the findings of a five-year study. This study was jointly commissioned by the CIA, the US Department of Homeland Security and the Defence Advanced Research Projects Agency. Another study titled “Experimental Evidence of a Template Aging Effect in Iris Biometrics” supported by the Central Intelligence Agency (CIA), the Biometrics Task Force and the Technical Support Working Group through Army contract has demolished the widely accepted fact that iris biometric systems are not subject to a template aging effect. The study provides evidence of a template aging effect. The study infers, “We find that a template aging effect does exist. We also consider controlling for factors such as difference in pupil dilation between compared images and the presence of contact lenses, and how these affect template aging, and we use two different algorithms to test our data.” A “template aging effect” is defined as an increase in the false reject rate with increased elapsed time between the enrollment image and the verification image. This study demonstrates that assumptions which form the basis of Justice Sikri’s order are conclusively and unambiguously unscientific.
A report “Biometrics: The Difference Engine: Dubious security” published by The Economist in its 1 October 2010 issue observed “Biometric identification can even invite violence. A motorist in Germany had a finger chopped off by thieves seeking to steal his exotic car, which used a fingerprint reader instead of a conventional door lock.” Notwithstanding similar unforeseen consequences Justice Sikri’s faith in biometric remains unshaken. It seems that considerations other than truth have given birth to this faith. Is there a biological material in the human body that constitutes biometric data which is immortal, ageless and permanent? Besides working conditions, humidity, temperature and lighting conditions also impact the quality of biological material used for generating biometric data. The claim of uniqueness of UID/Aadhaar which Justice Sikri has accepted is based on the questionable assumption that there are parts of human body likes fingerprint, iris, voice etc that does not age, wither and decay with the passage of time.
The Forty-Second Report of Yashwant Sinha headed Parliamentary Standing Committee on Finance submitted to the Lok Sabha and Rajya Sabha on 13 December, 2011 revealed that “Bharatiya - Automated Finger Print Identification System (AFSI), was launched in January 2009, being funded by the Department of Information Technology, Ministry of Communications and Information Technology, for collection of biometric information of the people of the country.” But admittedly the same is not being used by UIDAI because according to the Government, “The quality, nature and manner of collection of biometric data by other biometric projects may not be of the nature that can be used for the purpose of the Aadhaar scheme and hence it may not be possible to use the fingerprints captured under the Bhartiya-AFSI project.”

Justice Sikri‘s order refers to the Fifty Third Report of this very Standing Committee on Finance that presented to the Lok Sabha and Rajya Sabha on April 24, 2012 which summarised the objectives and financial implications of the UID scheme but it does not factor in the recommendations of this very Parliamentary Standing Committee in its Forty-Second Report which shows the existence of Bharatiya - Automated Finger Print Identification System (AFSI) whose quality, nature and manner of collection of biometric data was apparently found to be not of such required nature which can impart uniqueness. Government reached the conclusion that biometric technology of foreign firms is better than the existing Indian one from the point of uniqueness without any comparative study.

This parliamentary report observed that “Continuance of various existing forms of identity and the requirement of furnishing “other documents” for proof of address, even after issue of aadhaar number, would render the claim made by the Ministry that aadhaar number is to be used as a general proof of identity and proof of address meaningless”. It underlined that “The full or near full coverage of marginalized sections for issuing aadhaar numbers could not be achieved mainly owing to two reasons viz. (i) the UIDAI doesnt have the statistical data relating to them; and (ii) estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour.” The report records that “The Ministry of Home Affairs are stated to have raised serious security concern over the efficacy of introducer system, involvement of private agencies in a large scale in the scheme which may become a threat to national security; uncertainties in the UIDAI’s revenue model.”

The parliamentary report has apprehended that “Although the scheme claims that obtaining aadhaar number is voluntary, an apprehension is found to have developed in the minds of people that in future, services / benefits including food entitlements would be denied in case they do not have aadhaar number.” Its apprehension has been found to be correct.

Parliamentary Standing Committee’s Forty-Second Report relied on the Report of the London School of Economics (LSE)Report on UKs Identity Project inter-alia states that “…..identity systems may create a range of new and unforeseen problems……the risk of failure in the current proposals is therefore magnified to the point where the scheme should be regarded as a potential danger to the public interest and to the legal rights of individuals”. It records that “the United Kingdom shelved its Identity Cards Project for a number of reasons, which included:- (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 states that “As these findings are very much relevant and applicable to the UID scheme, they should have been seriously considered.”

These aspects of the report have been ignored by Justice Sikri. Although he refers to the introduction of National Identification Authority of India Bill, 2010’in the Rajya Sabha on December 3, 2010, he chose to gloss over the fact that this Bill was referred to Parliamentary Standing Committee on Finance on 10 December 2010 and the findings of this on this Bill and the UID/Aadhaar project in its Forty-Second Report. This Committee comprised of 21 members from the Lok Sabha and 10 members from the Rajya Sabha. The Bill of 2010 was not a Money Bill. It was never passed by the Rajya Sabha. As a consequence of the recommendations contained in this report this Bill was withdrawn from the Rajya Sabha on 3 March, 2016 and a new Bill, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 was introduced on that very day as a Money Bill to outwit the Rajya Sabha and to make the recommendations of Lok Sabha’s Parliamentary Standing Committee on Finance irrelevant. Thus, what could not been done directly through Rajya Sabha and Lok Sabha’s Parliamentary Committee was done through Lok Sabha. It conclusively established itself as a questionable colourable legislation. By choosing not to engage with these facts on record, Justice Sikri has avoided the question of enactment of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 as a colourable legislation.      

Tracing the origin of the UID/Aadhaar project, Justice Sikri refers to the Processes Committee that was set up on July 3, 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 (UID) for BPL Families project. The Planning Commission’s Processes Committee, on November 26, 2006, prepared a paper known as “Strategic Vision Unique Identification of Residents”. The fact is that it is one of the earliest documents which refers to UID. It is a 14-page long document titled ‘Strategic Vision: Unique Identification of Residents’ which was admittedly prepared by Wipro Ltd and submitted to the Processes Committee of the Planning Commission. The Processes Committee did not prepare it. This document envisaged the close linkage that the UIDAI would have with the electoral database. On December 4, 2006, the Prime Minister Manmohan Singh had constituted an Empowered Group of Ministers (E-GoM) comprising of A Raja, the then Minister of Communications & Information Technology, the minister-in-charge responsible for UID and related others on the basis of this strategic vision document. Therefore, factual misrepresentation with regard to its origin assumes great significance. The use of electoral database mentioned in Wipro Ltd’s document remains on the agenda given the fact that aggressive attempts have been made to link Voter ID with UID/Aadhaar. Justice Sikri’s order does not refer to Wipro Ltd which prepared the vision document although this vision document was submitted by the government in the course of the judicial proceedings. Till then this vision document was not in public domain. Its vision statement reads: “Creating a unique identification system of all residents in the country for efficient, transparent, reliable and effective delivery of various welfare and private services to the common person.” The cover page of the vision document mentions the names of institutions and the private firm namely, National Institute for Smart Government, Department of Information Technology and Wipro Consulting and states that Wipro Ltd is the consultant for the design phase and program management phase of the pilot UIDAI project, the ‘Strategic Vision on the UIDAI Project’. This is the first document of November 2006 which refers to UIDAI for the first time. UIDAI took birth in January 2009.

What is stated in the Wipro‘s vision document with regard to electoral database finds echo in Justice SIkri’s order wherein it is stated that “A core group was set up to advice and further the work related to UIDAI….Meetings of the core group took place from time to time. The core group, inter alia, decided that it was better to start with the electoral roll database of 2009
for undertaking the UIDAI project.” It further states “This and other steps taken in this direction culminated in issuance of Notification dated July 02, 2009 whereby Mr. Nandan Nilekani was appointed as the Chairman of UIDAI for an initial tenure of five years in the rank and status of a Cabinet Minister. He assumed charge on July 24, 2009. Thereafter, the Prime Minister’s Council of UIDAI was constituted on July 30, 2009 which held its first meeting on August 12, 2009 where the Chairman of UIDAI made detailed representation on the broad strategy and approach of the proposed UID project.” Interestingly, only within 20 days of joining UIDAI after resigning as CEO, Infosys Ltd, he became competent enough to give “detailed representation on the broad strategy and approach of the proposed UID project.”  His appointment letter was addressed him as CEO, Infosys Ltd. Later, Nilekani headed Technology Advisory Group (TAGUP) recommended setting up of National Information Utilities (NIU) to deal with complex Information Technology (IT) systems and projects. This TAGUP report refers to UIDAI Strategy Overview document prepared by WIPRO technologies Pvt and published by UIDAI.

Notably, Infosys Leadership Institute (ILI) had set up Jawaharlal Nehru Leadership Institute (JNLI) in 2008 for training Indian Youth Congress (IYC) and National Students' Union of India (NSUI) with GK Jayaram as its chief mentor. Jayaram's Bangalore based Institute of Leadership and Institutional Development (ILID) was a consultant to Rajiv Gandhi Foundation and Rajiv Gandhi Institute of Contemporary Studies. Subsequently, a web-based Pehchaan (identity) platform was set up "as a mechanism to identify and promote elected office-bearers (EOBs) at every level."  The text of a resolution in this regard reads, "Every EOB is allotted a unique ID and password and given the opportunity to share their work and connect with the organization at various levels." Jayaram, the chief mentor for training IYC and NSUI was formerly associated with the US Navy Post-Graduate School and worked in US firms like AT&T. It may be noted that in 2006, the Electronic Frontier Foundation lodged a class action lawsuit alleging that AT&T had allowed agents of the National Security Agency (NSA) to monitor phone and Internet communications of AT&T customers without warrants in violation of the Foreign Intelligence Surveillance Act of 1978 and the First and Fourth Amendments of the US Constitution. It is apparent that those who pushed the idea of unique identity before the ruling political leadership have been involved with foreign defence and private firms whose past merited deeper scrutiny. Justice Sikri has not been able to see through the incestuous relationship between domestic and foreign private firms with UIDAI because he has refrained from naming the firm which conceptualized its strategic vision.    

Notably, Comptroller and Auditor General has reported in August 2016 that Wipro, India’s third largest software exporter has been given “undue favours” of Rs 4.92 crores by the competent authority in UIDAI. Wipro was given a contract by UIDAI in May 2011 for Rs 134 crore for installing security systems etc in the data centres of UIDAI in Bengaluru and Delhi/NCR region. Besides undue favour garnered by Wipro, it is apparent that it created business for itself through its preparation of the Strategic Vision  on the UIDAI Project, a classic case of manifest conflict of interest.   

Given the fact that Prime Minister’s Council of UIDAI was directly overseeing the execution of the UID/Aadhaar project, it is pertinent to note what the then Prime Minister said. In such a backdrop and in the context of scams galore, he observed, "We live in a world of uncertainty and ex-post whether it is the Comptroller and Auditor General, whether it is a Parliamentary committee then they analyse post facto. They have a lot more facts which were not available to those who took the decision." Now that it has been more than nine years of the existence of a controversial public institution like UIDAI, the Justice Sikri should have asked the "Comptroller and Auditor General" of India to "analyse post facto" the work of UIDAI since January 2009 and the involvement of its key office bearers in awarding contracts to private firms, some of which have already come under CAG’s scrutiny instead of deliberately omitting the role of private firms like Wipro in his order. 
Justice Sikri authored order of Supreme Court’s Constitution Bench has missed the opportunity to save present and future Indians from the dictatorship of faceless donors created through Finance Act 2017 and Finance Act 2018 which has compromised national security and almost all the public institutions. He has made citizens and natural persons residing in India naked and transparent in a legal system in which artificial persons, the opaqueness of body corporates has been legalized. The order commits a Himalayan blunder by ruling that right to have natural and human rights of citizens can be made conditional by their servant, the government at the behest of the beneficial owners of ungovernable technology companies who have turned ruling political parties into puppets through their limitless and anonymous transnational donations. 
In the face of assault on citizens’ rights and the emergence of a regime that is making legislatures and judiciary subservient to automatic identification, big data mining and artificial intelligence companies, the order of Justice Sikri has undermined the Constitution and the sovereignty of the citizens who framed it. If the order is not reviewed soon by a larger Constitution Bench, India's social policies will be guided by biometric and genetic determinism and eugenic thinking of their beneficial owners of unaccountable and admittedly undemocratic institutions.

Dr Gopal Krishna
The author is convener of Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar and DNA profiling since 2010. He had appeared before the Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar. He is also the editor of www.toxicswatch.org   

Supreme Court's verdict of 4 Judges on UID/Aadhaar Act is deeply unscientific and anti-poor-Part XIV

Written By BiharWatch on Wednesday, September 26, 2018 | 9:08 AM


Minority verdict echoes the statement of concern issued by 17 eminent citizens and the recommendations of the Parliamentary Standing Committee on Finance

26 Sept. 2018, New Delhi: Verdict of Supreme Court of 4 Judges of the 5-Judge Constitution Bench on biometric data based 12 digit Unique Identification (UID) number branded as Aadhaar is manifestly unscientific and anti-poor. The verdict was delivered today. It has taken citizens to pre-Magna Carta days (1215 AD) or even earlier, to the days prior to the declaration of Cyrus, the Persian King (539 BC) that willed freedom for slaves.

The Court failed to rigorously examine the ramifications of biometric information based identification of residents of India in the light of global experiences. UK, China, Australia, US and France have scrapped similar initiatives. US Supreme Court, Philippines’ Supreme Court and European Court of Human Rights have ruled against the indiscriminate biometric profiling of citizens without warrant.

UID/Aadhaar is akin to to Sanjay Gandhi's forced family planning programs. Even Sanjay Gandhi faced the adverse consequences of forcing planning on human body. Aadhaar-linked programs make Indian citizens subjects of Big Data companies.

The opening statement of the verdict authored by by Justices A.K.Sikri and concurred by, Dipak Mishra, and A.M. Khanwilkar reads: “It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one. 2) Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions.”

Before going through the 1448 page long verdict, Citizens Forum for Civil Liberties (CFCL) submits as a initial reaction that this opening statement in the order is questionable from scientific point of view.  A report “Biometric Recognition: Challenges and Opportunities” of the National Research Council, USA published on 24 September 2010 concluded that the current state of biometrics is ‘inherently fallible’. That is also one of the findings of a five-year study. This study was jointly commissioned by the CIA, the US Department of Homeland Security and the Defence Advanced Research Projects Agency.

Another study titled “Experimental Evidence of a Template Aging Effect in Iris Biometrics” supported by the Central Intelligence Agency (CIA), the Biometrics Task Force and the Technical Support Working Group through Army contract has demolished the widely accepted fact that iris biometric systems are not subject to a template aging effect. The study provides evidence of a template aging effect. A “template aging effect” is defined as an increase in the false reject rate with increased elapsed time between the enrollment image and the verification image. The study infers, “We find that a template aging effect does exist. We also consider controlling for factors such as difference in pupil dilation between compared images and the presence of contact lenses, and how these affect template aging, and we use two different algorithms to test our data.”

A report “Biometrics: The Difference Engine: Dubious security” published by The Economist in its 1 October 2010 issue observed “Biometric identification can even invite violence. A motorist in Germany had a finger chopped off by thieves seeking to steal his exotic car, which used a fingerprint reader instead of a conventional door lock.” Notwithstanding similar unforeseen consequences Prime Minister’s faith in biometric remains unshaken. It seems that considerations other than truth have given birth to this faith. Is there a biological material in the human body that constitutes biometric data which is immortal, ageless and permanent? Besides working conditions, humidity, temperature and lighting conditions also impact the quality of biological material used for generating biometric data. UID/Aadhaar is based on the unscientific and questionable assumption that there are parts of human body likes fingerprint, iris, voice etc” that does not age, wither and decay with the passage of time.

Stalwarts like Justice V. R. Krishna Iyer, a people’s judge of the Supreme Court, S R Sankaran, a people's bureaucrat and K. G. Kannibaran, author of The Wages of Impunity had opposed biometric UID/Aadhaar and Unique Identification Authority of India (UIDAI). Their views were endorsed by the Parliamentary Standing Committee on Finance. The dissenting order of Justice Chandrachud echoes their views. The  Bhartiya Janata Party led Government like the previous Congress Party led Government has been bulldozing the Unique Identification (UID) /Aadhaar number database project down the throat of citizens. 
Before their death Justice Iyer, Kannabiran and Sankaran issued a Statement of Concern against the biometric UID/aadhaar number in September 2010 along with fourteen other eminent citizens. The Statement of Concern reads: “The project that proposes to give every resident a `unique identity number’ is a matter of great concern for those working on issues of food security, NREGA, migration, technology, decentralisation, constitutionalism, civil liberties and human rights....This project is intended to collect demographic data about all residents in the country." It further reads: "The involvement of firms such as Ernst & Young and Accenture raise further questions about who will have access to the data, and what that means to the people of India."

The statement also observed the following: "Constitutionality of this project, including in the matter of privacy, the relationship between the state and the people, security and other fundamental rights."

In the light of the tragic cases of civil death and actual deaths caused by UID/Aadhaar project since September 2010, there is a compelling logic for abandoning this project like other civilized countries. This project treats citizens worse than prisoners. It is aimed at enslaving present and future generations of Indians including future PMs, CMs, Judges and soldiers by the beneficial owners of ungovernable technology companies who have turned political parties into puppets through their limitless anonymous donations. 

In the face of assault on citizens’ rights and the emergence of a regime that is making legislatures and judiciary subservient to automatic identification, big data mining and artificial intelligence companies, the majority verdict on UID/Aadhaar project and Aadhaar Act has undermined the sovereignty of the country.

Majority verdict of the Supreme Court has missed the opportunity to save Indians from the dictator ship of anonymous donors who have compromised national security and almost all the public institutions.

If it is not reviewed soon India's social policies will be guided by biometric and genetic determinism and eugenic thinking or not. It demonstrates that right to have natural and human rights of citizens can be made conditional by their servant, the government. 

Citizens Forum for Civil Liberties (CFCL) used this Statement of Concern to launch its campaign for freedom from UID/Aadhaar in 2010. Since it has been demanding stoppage of biometric and demographic data collection for the UID/Aadhaar project. CFCL is involved in the research and advocacy against surveillance technologies like UID/Adhaar and DNA profiling. It had appeared before the  Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians for UID/Aadhaar.

For Details: Gopal Krishna, Convener, Citizens Forum for Civil Liberties (CFCL), Mb: 9818089660, E-mail:krishnaruhani@gmail.com 


Why UID/Aadhaar is not required for rations?- Part XIII

Written By BiharWatch on Tuesday, September 11, 2018 | 3:24 AM

It has come to light that ration card shops are demanding UID/Aadhaar number from ration card holders, therefore, there is a need to inform the concerned shop owners and the concerned state department about the notifications and letter of Union Ministry of Consumer Affairs, Food and Public Distribution prohibiting demand for UID/Aadhaar from non-Aadhaar holders.  


As per the Consumer Guide of Ministry of Consumer Affairs, Food and Public Distribution, “Aadhaar is not a compulsory scheme at all, it is a voluntary based scheme and anyone who is interested can enroll for Aadhaar.”

As per Section 1 (3) of the February 8, 2017 notification of the ministry, in cases where an individual does not have an Aadhaar, the notification states that the following documents be produced for providing food grains:
1.      Ration Card issued by the State Government Department;
2.      Copy of Aadhaar enrollment ID slip or copy or request made for Aadhaar enrollment; and
3.     Any of the eight documents specified in the notification like PAN card, Voter ID etc.

According to the Letter of Pramod Kumar, Joint Secretary, Department of Food &Public Distribution, Union Ministry of Consumer Affairs, Food & Public Distribution sent to Principal Secretary/ Secretary, Food and Civil Supplies Department of all States on the subject of Aadhaar Seeding with Ration Cards on24 October, 2017, “No person or household shall be deleted from the list of eligible households and denied subsidised food grains or cash transfer of Food subsidy under NFSA only on the ground of not possessing Aadhaar.” The letter was copied to CEO of UIDAI.

The amendments to the relevant provisions of the National Food Security Act 2013 makes it clear that those desirous of availing subsidy may get themselves enrolled for UID/Aadhaar till 30 September 2018. It is not mandatory. 

The notifications, relevant and the press release given below for ready reference:
 1.      Amendment (Extension till 30 September 2018) - Notification under Section 7 of Aadhaar Act (Issue Date 02/07/2018. Valid up to 02/07/2020) [Amendment dated 29th June, 2018 to Notification of Feb 8, 2017]
2.      Amendment (Extension till 30June2018) - Notification under Section 7 of Aadhaar Act (Issue Date  02/04/2018. Valid up to 31/03/2021) [Amendment dated 2nd April, 2018 to Notification of Feb 8, 2017]
3.      Amendment (Extension till 31March2018) - Notification under Section 7 of Aadhaar Act (Issue Date 05/01/2018. Valid up to05/01/2019) [Amendment dated 26th December, 2017 to Notification of Feb 8, 2017]
4.      Amendment (Extension till 31Dec2017) - Notification under Section 7 of Aadhaar Act regarding requirement of Aadhaar Number/ Aadhaar authentication for subsidies under PDS. (Issue Date 28/09/2017       Valid up to 31/12/2020) [Amendment dated 28th September, 2017, 2017 to Notification of Feb 8, 2017]
5.      Amendment - Notification under Section 7 of Aadhaar Act regarding requirement of Aadhaar Number/ Aadhaar authentication for subsidies under PDS. (Issue Date 06/07/2017 Valid up to 01/07/2019) [Amendment dated 29 June, 2017 to Notification of Feb 8, 2017]

6.      Notification under Section 7 of Aadhaar Act regarding requirement of Aadhaar Number/ Aadhaar authentication for subsidies under PDS (Issue Date 10/07/2017 Valid up to 10/07/2020) [Amendment dated 8 February, 2017]
7.      Press release note for notification under Aadhaar Act (Issue Date10/07/2017 Valid up to 10/07/2020) Refer to last paragraph of the Press release-July 10, 2017

In a related development, on 31st July, 2018, Union Minister of State for Consumer Affairs, Food & Public Distribution, C. R. Chaudhary informed Lok Sabha that “Department has issued clear instructions to all States/UTs that no beneficiary/household shall be deleted from the list of eligible beneficiaries/households only on the ground of not possessing Aadhaar, and shall also not be denied subsidized foodgrains or cash transfer of food subsidy under NFSA due to non-availability of Aadhaar or failure of biometric authentication due to network/connectivity/ linking issues/ poor biometric of the beneficiary or other technical reasons.” The fact remains UID/Aadhaar cannot be linked to entitlements of social benefits and services because the entitlements are for “citizens” of India, not residents of India. UID/ Aadhaar number claims to be proof of residentship in India.

In a RTI reply on the application of Dr Anupam Saraph dated January 29, 2018 provided by Unique Identification Authority of India (UIDAI) of Union Ministry of Electronics and Information Technology (MEITY), it has been admitted that UIDAI does not certify the identity, address, date of birth, resident status or existence of any individual or any Aadhaar number. Given the fact that certification is essential to identify the  person  and  agency responsible for the issue of the identification document and to establish their legal liability for the identification with the person, even the claim of UID/Aadhaar number being proof of residentship has been found to be bogus, akin to misleading advertisements by vendors of all shades. 

In such a backdrop, UID/Aadhaar cannot be relied upon by central and state departments of consumer affairs, food and public distribution and other departments. It is high time all the central and state ministries and agencies updated their notifications in the light of the revelations made in these RTI replies and abandon UID/Aadhaar number database project.   

 Dr Gopal Krishna

The author had appeared before the Parliamentary Standing Committee on Finance that examined the Aadhaar Bill and the Parliamentary Standing Committee on Food, Consumer Affairs and Public Distribution that examined the Consumer Protection Bill. He is editor of www.toxicswatch.org and is the convener of Citizens Forum for Civil Liberties which has been working on UID/Aadhaar issue since 2010.

Why Kuldip Nayar opposed centralized databases like UID/Aadhaar? –Part XII

Written By BiharWatch on Thursday, August 23, 2018 | 5:15 AM


While delivering his welcome address introducing the legacy of Justice V M Tarkunde, the stalwart of civil liberties who stepped down voluntarily as judge of the Bombay High Court in 1969 to work as a lawyer in public interest, Kuldip Nayar, former member of Rajya Sabha, veteran journalist and former ambassador observed on November 23, 2012 ahead of the Sixth Justice VM Tarkunde Memorial Lecture that had Justice Tarkunde been alive he would have opposed centralized databases like Union Home Ministry’s National Population Register (NPR) and Centralized Identities Data Registry (CIDR) of Unique Identification (UID)/Aadhaar number because it is an assault on civil liberties and human rights. He underlined that the democratic space is shrinking. This project will further aggravate the situation.

Civil liberties activists who were present on occasion walked out in protest when Nandan Manohar Nilekani, the then Chairman of Unique Identification Authority of India (UIDAI) began his memorial lecture. The walk out was a protest against Nilekani being invited to deliver the lecture in memory of the stalwart of human rights and civil liberties, Justice Tarkunde. The UID project has been challenged since its inception. The activists who walked out of the lecture have repeatedly tried to engage with Nilekani at various public platforms but he has consistently declined to answer their questions or enter into any discussion with them. But till date these concerns and questions remain unanswered.

Prior to the lecture when activists approached Kuldip Nayar to persuade him to disassociate himself from this event, he opined that he will not disassociate himself with the program because of his long association with Justice Tarkunde but he will surely articulate his concerns about UID/Aadhaar and the views of  Justice Tarkunde. He endorsed the protest by the civil liberties activists. The activists had walked out the moment Nilekani began to deliver his lecture.  

Notably, Kuldip Nayar had read a Statement of Concern on UID/Aadhaar issued by 17 eminent citizens which included demands like “The (UID/Aadhaar) project be halted, a feasibility study be done covering all aspects of this issue, experts be tasked with studying its constitutionality, the law on privacy be urgently worked on (this will affect matters way beyond the UID/Aadhaar project), a cost: benefit analysis be done and a public, informed debate be conducted before any such major change be brought in.”  This statement was circulated among the people who had come attend the lecture of the then Chairman of UIDAI.

The organizers rushed and tried to take back the Statement paper but several members of the audience refused to hand over the papers. As the activists walked out, the organizers termed the peaceful and silent distribution of the Statement of Concern on UID as ‘trouble’. After the program, many members of the audience who came out after hearing the lecture revealed that it was not at all convincing.

Notably, PUCL disassociated itself from the Sixth Justice VM Tarkunde Memorial Lecture program because of wrong choice of speaker. In a letter dated November 21, 2012 to the human rights community, V Suresh, National General Secretary (Elect), People’s Union for Civil liberties (PUCL) said, “We had issued a statement where we made explicit that our opposition to UDIAI has not changed nor our continuing to oppose the UID project. We had also spoken to and followed by writing to the organisers informing our stand on UIDAI, that selection of a person like Mr. Nilekani is  contradictory to the very ideals that Justice Tarkunde’s  work and persona reflected, and therefore the demand for calling off the lecture as also that we did not want to be associated with the event.”

A letter was issued after the event with the following questions:
1.   Why do we need Unique Identification (UID)-Aadhaar Number as a 16th identity proof which in fact is an identifier and not an identity proof. Hasn’t linking of cash transfer with UID made it mandatory contrary to its continued claim that it is voluntary? 
In the beginning, it was said that the UID would be voluntary. Now, it is creeping into becoming mandatory, with the threat that those who don’t have a UID cannot access services of many kinds, including rations and bank accounts. How does Nilekani see the implications of this creep for civil liberties and the rights of the people?
2. Why present and future Indian citizens should be allowed to be profiled based on biometric data? Are citizens worse than prisoners? The indiscriminate collection of biometrics of prisoners is not allowed as per Identification of Prisoners Act.
3. Why have countries like UK, Australia, the Philippines rejected UID/Aadhaar like projects?
Countries such as the UK, Australia, the Philippines have rejected identity projects that closely resemble the UID/Aadhaar project because of its civil liberty implications, the prohibitive cost, the untested technology and because it will make the people subservient to the state. What is the reason for thinking that Indian citizens can bear these risks and costs?
It may noted that Supreme Court of Republic of the Philippines July 23, 1998 rejected the National ID program initiated by President Fidel V. Ramos on December 12, 1996 through “Adoption of a National Computerized Identification Reference System” in its 60 page judgment on two important constitutional grounds, viz: one, it is a usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry’s protected zone of privacy.
4. Who will be held accountable for violation of citizen’s privacy law and data protection?
The UID/Aadhaar project poses a threat to the privacy rights of citizens.
5. If violation of confidentiality promised in the Census Act cannot be done with impunity, how can census like UID/Aadhaar exercise be trusted? 
6. What is the guarantee that whosoever controls Centralized Database of Indians will not become autocrat like Hosni Mubarak who handed over citizens’ database to US Government?
7. Isn’t the entire UID/Aadhaar related exercise meant to provide market for biometric and surveillance technology companies and World Bank’s partners like International Business Machines (IBM), Gemalto, Intel, Safran Group, Microsoft, and Pfizer, France and South Korea?
There is an extraordinary dependence on corporations, many of them companies with close links with foreign intelligence agencies. How are the implications of this factor being dealt with?
8. Isn’t linking of UID with voter id, land titles, National Intelligence Grid, National Population Register (NPR), National Counter Terrorism Centre (NCTC) etc an assault to rights of citizens? 
The ubiquity that the UIDAI is trying to get for the UID — where it will be linked with the National Population Register, and service such set ups as the CCTNS, the NCTC, the NATGRID– where are the protections for the citizen from an invasive state?
9. Who will guarantee that the centralized database of UID, NPR will not be used for holocaust, genocide, communal and ethnic riots, targeting of minorities and political dissidents?          
10. Why is technology treated as if it has no politics, or no civil liberties implications, when we know that it most certainly does have implications?
11. Did Nilekani in his role in the rank of the Cabinet Minister taken the oath on Constitution of India to abide by its provisions?

When Kuldip Nayar pondered over these questions he felt a logical compulsion to express his opposition centralized databases like UID/Aadhaar numbers database.

Civil liberties activists are opposed to UID/Aadhaar like databases because it is laying the structural basis for authoritarianism and illegitimate advances of the State at the behest of the ungovernable and unregulated foreign biometric and surveillance technology companies. The collection of biometric data supports the ideology of biological determinism with its implicit and explicit faith in the biometric technologies. There are dangers of trusting such technological advances for determining social policies and dangerous ramifications of the unfolding automatic identification regime being facilitated by it in the face of corporate media unquestionably promoting identification and surveillance technology companies.

UID/Aadhaar is rewriting and engineering the electoral ecosystem with the unconstitutional 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 numbers as well.

It is significant that on the 16th day of final hearing in UID/Aadhaar case, petitioner’s lawyer while arguing against the passage of Aadhaar Act, 2016 as Money Bill before the 5-Judge Constitution Bench of the Supreme Court cited the decision of the Court in Kuldip Nayar v. Union of India. Drawing on it he submitted that the Rajya Sabha in a bicameral legislature cannot be bypassed as it plays an important role in a federal Constitution. He further underlined the importance of Rajya Sabha and its importance in a federal structure of governance.  In Kuldip Nayar case Court observed: “Under Article 83(1) of the Constitution, the Rajya Sabha is a permanent body with members being elected for 6 year terms and 1/3rd of the members retiring every 2 years…. Rajya Sabha’s  role was undermined when Aadhaar Act, 2016 was enacted as a Money Bill despite manifest provisions in it revealing that it does not have the character of a Money Bill. The Rajya Sabha cannot be dissolved.” Amidst his opposition to UID/Aadhaar, Kuldip Nayar was deeply concerned about the constitutional role of Rajya Sabha. Now it is for the Court to ensure that Rajya Sabha’s role is restored.

Dr Gopal Krishna

The author had appeared before the Parliamentary Standing Committee on Finance that examined the Aadhaar Bill and the Parliamentary Standing Committee on Food, Consumer Affairs and Public Distribution that examined the Consumer Protection Bill. He is editor of www.toxicswatch.org and is the convener of Citizens Forum for Civil Liberties which has been working on UID/Aadhaar issue since 2010.


Why Ram Sewak Sharma violated Aadhaar Act-Part XI

Written By BiharWatch on Thursday, August 02, 2018 | 2:24 AM

In an interview with The Print, Ram Sewak Sharma, Chairman of Telecom Regulatory Authority of India (TRAI) claimed that Aadhaar does not violate privacy. He asked “Tell me what harm can you do to me if you have my Aadhaar details? I will give you my Aadhaar number if you like”.

This question made active Twitter society members to demand asked TRAI Chairman to walk the talk and reveal his Aadhaar number on 28 July. They said if he has so much trust in the 13 feet wall secured aadhaar system. Following this exchange of words over Twitter, Sharma made his 12 digit biometric unique identification (UID) number branded as Aadhaar public on this micro blogging site.

In the early evening of 28 July, Sharma announced that “My Aadhaar number is ***********. Now I give this challenge to you: Show me one concrete example where you can do any harm to me!”

By doing so, Sharma committed an illegal and punishable act. Publishing of Aadhaar number is prohibited by Aadhaar Act, 2016. As per Section 29 (4) of the Act, “No Aadhaar number or core biometric information collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations.” So far there is no regulation which condones this illegal act of the TRAI Chairman.

Within few hours some cyber security researchers, the ethical hackers accessed his personal details using the Aadhaar number and shared some excerpts on twitter.

In such a backdrop, Sharma wrote an article in Indian Express on 31st July explaining why he gave out his number wherein he has argued that his “purpose in engaging in debate is to prove by my own example that Aadhaar number disclosure cannot cause any harm.” He hoped that his challenge would put an end to the scaremongering so that the people of India can benefit from the technology.

But the facts are contrary to his claims about right to privacy, disclosure of personal sensitive information, digital vulnerabilities and benefits.

In its affidavit before the 9-Judge Constitution Bench of Supreme Court, Telecom Regulatory Authority of India (TRAI) submitted that right to privacy is not a fundamental right. The Court debunked its claim in it verdict of 24 August 2017 and ruled that “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution.” It conclusively established that right to privacy is a fundamental right. The Court observed, “The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information.” On the question of vulnerability, the court took note of “increased the vulnerability of individuals to having their actions, words, images, and personalities communicated without their consent beyond the protected circle of family and chosen friends.” It is crystal clear that all the claims of TRAI have been demolished by the Court. TRAI and Sharma have failed to revise their position in the light of this verdict.  

On 1 May 2012, Sharma “took the biometric fingerprints of Mr Modi for his identity card and registered him under the project” as per the website of Narendra Modi. (Source:   http://www.narendramodi.in/cm-kicks-off-uid-project-in-gujarat/). It is apparent that, he misled the then Gujarat Chief Minister because it was not mandatory as per the declaration on every Aadhaar enrolment form and there was no legal framework in place. 
CM kicks off UID project in Gujarat

(Photo: R S Sharma behind Gujarat Chief Minister in May 2012 to kick off Unique Identification Number (UID) – Aadhaar project)

Notably, Mr Modi had protested against biometric data collection in aletter to the then Prime Minister. This was after the then Home Minister P Chidambaram had sent a letter to Mr Modi pointing out that creation of biometric National Population Register (which has now been converged with UID/Aadhaar) was a "statutory requirement" under the Citizenship Act, 1955, and "once initialized, has to be necessarily completed". Gujarat had stopped collection of biometric data. It demonstrates that Mr Modi himself had gnawing doubts about biometric data based identification. But Sharma seems to have succeeded in persuading him to part with is biometric data for UID/Aadhaar.  

As chief secretary of Jharkhand, he violated Supreme Court’s orders to make aadhaar mandatory. This has contributed to ongoing starvation deaths in Jharkhand. In all his official capacities he continued to illegitimately and illegally use foreign Gmail accounts of. He did so even during his tenure at UIDAI. He did not learn any lessons from Hilary Clinton’s private email controversy which contributed to her defeat. The use private email server for official communications during her tenure as US Secretary of State rather than official US State Department email accounts maintained on secure federal servers became a huge scam. These official communications included over 100 emails which contained classified information at the time they were sent, as well as 2,093 emails which were not marked classified but were retroactively be ranked as "confidential" by the State Department. Her communications did not have classification markings. In July 2016, FBI announced that its investigation had concluded that Clinton was "extremely careless" in handling her email system. It was a factor in her loss in the 2016 presidential election. Sharma is guilty of a similar offence. His current stance with regard to his own Aadhaar number creates a compelling reason for probe into his gmail and other private email accounts he has been using.    

Unique Identification Authority of India (UIDAI)’s Committee on Biometrics revealed that in its sample of 25,000 people, 2-5% did not have biometric records. It is estimated that approximately 5% of any population has unreadable fingerprints, either due to scars or aging or illegible prints. 

(Photo: R S Sharma with N Nilekani)

In the Indian environment, experience has shown that the failure to enroll is as high as 15% due to the prevalence of a huge population dependent on manual labour, revealed Sharma as the director general and mission director, UIDAI in an interview to Frontline. When as many as 15% fail to enroll, how does “Aadhaar in the beneficiary database ensures detection of a large number of duplicates”? Failure in this regard has contributed to starvation deaths in most states. The accountability for these deaths lies with officials like Sharma.  

Sharma has been violating laws with impunity for quite a while. Therefore, he did not desist from violating even the punitive provisions of the Aadhaar Act. If law does take not its own course to charge him of this offence, it will once again demonstrate that Aadhaar Act is a black law because it is apparent that its implementation is only aimed at causing starvation deaths and civil deaths by coercion.   

Dr Gopal Krishna

The author had appeared before the Parliamentary Standing Committee on Finance that examined the Aadhaar Bill and the Parliamentary Standing Committee on Food, Consumer Affairs and Public Distribution that examined the Consumer Protection Bill. He is editor of www.toxicswatch.org and is the convener of Citizens Forum for Civil Liberties which has been working on UID/Aadhaar issue since 2010.

 
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