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Biometric Data Collection for Home Ministry is illegal and illegitimate

Written By Gopal Krishna on Sunday, August 25, 2013 | 1:46 AM


Biometric Data Collection for Home Ministry’s National Population Register (NPR) and Planning Commission’s Aadhaar Number is illegal and illegitimate

Proposed Convergence of Census, NPR, Adhaar Numbe

r, Family Identification Number under SECC, NATGRID, NCTC and Voter Identity Card has genocidal ramifications under Nazi Party like regime

Claims of NPR’s creation under Citizenship Act and Rules is flawed, biometrics not mentioned in the Act & Rules

Data collected for Census is confidential under Census Act, 1948, Data under NPR is not confidential but the collecting authority is Census Commissioner who is ex officio Registrar General for NPR

Biometric data collection for Aadhaar Number is without any legal basis, Parliamentary Committee rejected the Bill meant for its legalization


New Delhi: Two attached advertisements of Union Ministry of Home Affairs dated August 24, 2013 and August 14, 2013 in Hindustan Times and Hindustan respectively signals a very dangerous trend for
democratic rights and sovereignty of citizens. The former deals with biometric collection of usual residents of India for which camps are being organized, the latter dealt with SECC 2011 wherein it was announced that unless the usual residents covered under SECC sent a letter in a given format requesting for non-disclosure of the information collected from them within 15 days of the publication of the advertisement their information would be made public.  The latter is in violation of the Census Act, 1948 under which Census of India
functions and the former is in violation of the Citizenship Act, 1955. SECC application format also reveals that there is something called family identification number which has been created. It merits examination whether it is legal.

Citizens Forum for Civil Liberties (CFCL) which has been researching and campaigning against the use of biometric, surveillance and identification technologies against Indians since 2010 expresses its strong objection to such efforts. It appeals to informed progressive political parties, academicians and concerned citizens to take cognizance of the grave genocidal ramifications of such exercises which led to holocaust in Germany.

The 48 page Report of Parliamentary Standing Committee (PSC) on Finance submitted to both the Houses of Parliament has specifically raised questions about the legality of the collection of biometrics while creating a citizen/resident data base. The Report reads (in the section on Observations/Recommendations): “The collection of biometric information and its linkage with personal information 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.”

Quite like prisoners whose biometric data like finger prints can be collected only under the Identification of Prisoners Act, 1920, it is quite outrageous that NPR is taking biometric data of every resident and citizen of India disregarding absence of any legislative mandate for it.

Biometrics is sensitive personal information. Its proliferation represents a distinct threat to the personal security of the individual. Interestingly, it has hardly been tested, and when tested, been found deeply defective. Biometrics does not work for everyone, it can be stolen, it cannot be replaced, it changes, and none of this is acknowledged. Biometrics is too sensitive to be collected, held, transacted and shared without stringent protection of law.

In the case of prisoners their biometric data is required to be destroyed on their acquittal but in the case of NPR and Centralized Identities Register (CIDR) of Unique Identification (UID)/Aadhaar Number, the same will be recorded for ever. Are residents and citizens worse than prisoners? The Identification of Prisoners Act is available on Home Ministry’s website.

It may be noted that the act under which this is being done does not provide mandate for collection of biometric data.  The Citizenship Act, 1955 is “an Act to provide for the acquisition and determination
of Indian citizenship”. The Citizenship Rules, 2009 provides for  reation of a Register of citizens saying, “The Central Government
shall maintain a register containing the names and other details of  he persons registered or naturalised as citizen of India”. The Act and the Rules do not provide for creation of Citizens Register based
on without biometric data. As a consequence what the Union Home  inistry is attempting through NPR is without any legal mandate. The same hold true for National Intelligence Grid (NATGRID) and National
Centre for Counter Terrorism (NCTC) which are under construction. They are not meant to be accountable to the Parliament and to the citizens.

According to the Manual of Instructions for filling up of the NPR  Household Schedule, 2011 prepared by the Office of the Registrar  General & Census Commissioner (ORG&CCI), Union Ministry of Home
Affairs, the objectives of NPR involves “Collection of personal  details of all residents of the country and Capture of photograph and finger prints of all residents who are of age 15 years and above in
villages/urban areas.” The data collection for preparation of NPR was  ndertaken along with the House listing Operations of Census 2011. The Manual categorically states that “NPR will contain the details of all
the ‘usual residents’ of the country regardless of whether they are citizens or non-citizens.” If that is the case how can it qualify to  be an act under the Citizenship Act and Rules given the fact that the Register will have both citizens and non-citizens?   
 
Dr Usha Ramanathan, a noted jurist states: "The NPR does not yet have the legal authority to collect iris and fingerprints. An executive order is not enough, and a circular is as useless. They are actually acting contrary to the law. The Citizenship Act has a provision, since 2004, for a NPR, and it says that the information has to be collected according to the rules. The Citizenship Rules DO NOT provide for collecting fingerprints and iris scan. Ask them to show you the Rules that give them this authority. You have a right to ask them to do
that. And the Parliamentary Standing Committee too had said that collection of fingerprints and iris scan should not proceed without parliamentary debate and approval of such collection and use. The NPR
is expressly linked up the UID. The information will be passed on to the UIDAI who will then process and issue numbers. This is how the UID project started, and, after the January agreement between Nilekani and
Chidambaram, they have shared data collection for the UID 50/50!! So, this is a lie, if it is to be gently stated. This is one project that clearly reveals that:
• the state does not consider itself bound  by law or rules
• entities get created which have a status that is undefinable and we are asked to hand over our data to them, •  and biometrics are, as even the UIDAI's own report shows, extremely defective, yet they are
sending good money after bad because decisions are being made that this should just continue, 
•  lies, propaganda and marketing jargon are replacing public debate, 
•  and threatening and bullying -- like, you will be punished, or excluded, or won’t get services -- are being
used to force us to do things no one has any business asking us to do. Which is also why we can't participate."

As per the Manual, NPR’s utility lies in creation of “a comprehensive identity database in the country. This would not only strengthen security of the country but also help in better targeting of the benefits and services under the Government schemes/programmes and improve planning.” It further states, “It may be noted that
nationality declared by respondent does not confer any right to Indian Citizenship”. In such a case isn’t Census itself quite sufficient for it?

In fact Census Commissioner is supposed to gather the data of population under the Census Act, 1948 on the pre-condition that it would be kept secret and it will not be revealed even to the courts.

Unlike the data collected under Census Act which is confidential as  per Section 15 of the Act, the provisions of the Citizenship Act and  the citizenship or nationality Rules that provides the basis for
creation of the Register of citizens do not provide for confidentiality. The fact is that there is no mention of capturing biometrics in the Citizenship Act or Citizenship Rules. It is clear that the collection of biometrics is not a statutory requirement. This is not permissible under also Collection of Statistics Act. But both Unique Identification Authority of India (UIDAI) and ORG&CCI which are creating the NPR are collecting biometric data as well. It is not a question of duplication alone; it is a question of treating citizens worse than prisoners.

Providing for a dignified treatment of the citizens of India, Section 15 of the Census Act establishes that “Records of census not open to inspection nor admissible in evidence”. It reads: No person shall have
a right to inspect any book, register or record made by a census-officer in the discharge of his duty as such, or any schedule delivered under section 10 and notwithstanding anything to the contrary in the Indian Evidence Act, 1872, no entry in any such book, register, record or schedule shall be admissible as evidence in any civil proceeding whatsoever or in any criminal proceeding other than a prosecution under this Act or any other law for any act or omission which constitutes an offence under this Act.” Demolishing this dignity
of the citizens, the Union Home Ministry is dehumanizing citizens by according them a status inferior to that of prisoners.

When one looks at the definition of the “Biometrics” which “means the technologies that measure and analyse human body characteristics, such as ‘fingerprints’, ‘eye retinas and irises’, ‘voice patterns’, “facial
patterns’, ‘hand measurements’ and ‘DNA’ for authentication purposes” as per Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011
under section 87 read with section 43A of Information Technology Act, 2000, it becomes clear that the plan does of data collection does not end with collection of finger prints and iris scan it goes quite beyond it.

The fact remains biometric data like finger print, voice print, iris scan and DNA do not reveal citizenship. While use of biometric technology, an advanced technique for the identification of humans, based on their characteristics or traits is unfolding there is agency within India to. These traits can be face, fingerprint, iris, voice, signature, palm, vein, and DNA. DNA recognition and vein recognition are the latest and most advanced types of biometric authentication. Biometric technology is being deployed in the application areas like government, travel and immigration, banking and finance, and defense. Government applications cover voting, personal ID, license, building access, etc.; whereas travel and immigration use biometric
authentication for border access control, immigration, detection of explosives at the airports, etc. Banking and finance sector use biometric authentication for account access, ATM security, etc.

Officially, Home Ministry’s NPR which is mentioned in Column 7 of the Aadaar/UID Enrolment Form seeks NPR Survey Slip No. is aimed at creating a comprehensive database of all usual residents in India
based on digitization of demographic data captured during house listing operation in 2010 and collection of biometric data (photo, 10 fingerprints, iris of both eyes) for age 5+.

It may be noted that Census Commissioner who is ex-officio Registrar General of India (RGI) has awarded the NPR project to Department of Information Technology.

It is relevant to note that Section 2 of the Information Technology Act defines “data” as “a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been
prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic
or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.” It does not explicitly mention biometric data but given the fact that it refers to “whatever
can be processed in a computer system or computer network, and may be in any form or stored” it seems implicitly included. 
 
With the information infrastructure related instruments unfolding but elsewhere in UK, its Deputy Prime Minister, Nick Clegg said, “This government will end the culture of spying on its citizens. It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop. So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports” in a speech in British House of Commons. He added, “We won’t hold your internet and email records when
there is just no reason to do so. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question. Schools will not take children’s fingerprints without even asking their parent’s consent. This will be a government that is proud when British citizens stand up against illegitimate advances of the state.” The speech of the British Deputy Prime Minister is available on the internet; the Indian Union Home Minister must be made to take note of it to avoid the fate of Tony
Blair and his UK’s Identity Cards Act, 2006. Both have been abandoned.

Unlike UK, as per ORG&CCI, NPR process include collection of details including biometrics such as photograph, 10 fingerprints and Iris information for all persons aged 15 years and above. This is be done
by arranging camps at every village and at the ward level in every town. Each household is required to bring the Acknowledgement Slip to such camps. In the next step, data is printed out and displayed at prominent places within the village and ward for the public to see. After authentication, the lists are sent to the UIDAI for de-duplication and issue of UID Numbers. The cleaned database along with the UID Number will then be sent back to the ORG&CCI and form the NPR.

It is evident that ORG&CCI has amalgamated its two independent mandates using two Forms for each household in India. The first form relates to the House listing and Housing Census that has 35 questions
relating to Building material, Use of Houses, Drinking water, Availability and type of latrines, Electricity, possession of assets etc. The second form relates to the NPR that has 14 questions including name of the person, gender, date of birth, place of birth, marital status, name of father, name of mother, name of spouse,
present address, duration of stay at present address, permanent address, occupation, nationality as declared, educational qualification and relationship to head of family. There are 10 columns in the Aadaar/UID Enrolment Form.

ORG&CCI admits that “all information collected under the Census is confidential and will not be shared with any agency – Government or private.” But it reveals that “certain information collected under the
NPR will be published in the local areas for public scrutiny and invitation of objections. This is in the nature of the electoral roll or the telephone directory. After the NPR has been finalised, the database will be used only within the Government.”

While dual work of Census and NPR has blurred the line between confidential and non-confidential, UIDAI has gone ahead to seek consent for “sharing information provided…to the UIDAI with agencies
engaged in delivery of welfare services” as per Column 9 of the UID/Aadhaar Enrolment Form. Unmindful of the consent given by residents of India (which is being ticked automatically by the enroler in any case as of now), the fact is this information being collected for creating CIDR and NPR is being handed over to private foreign biometric technology companies like Safran group, a French corporation with 30 % stake of French government. This company has 40 year partnership with China.

It has also come to light that Safran has opened an office in the Hindustan Times building in New Delhi. On July 19, 2011, L-1 Identity Solutions, US company linked inteliigence agencies was awarded contract by UIDAI and was part of World Bank’s eTranform Initiative for transformational government in 14 developing countries has been bought over by Safran after Committee on Foreign Investment in the United States resolved their national security concerns. Commenting on the merger of these two biometric technology companies, Mark Lerner, the author of the book “Your Body is Your ID” expressed his gnawing concerns.

Earlier, a Statement of Concern by eminent citizens including former judges of the Supreme Court and High Court like Justice V R Krishna Iyer, Justice A P Shah and academicians like Prof Romila Thapar and
Prof Upendra Baxi have sought halting of NPR and UID/Aadhaar like identification exercises that has been rejected in countries like UK, China, USA, France and Australia citing national security concerns and grave violation of civil liberties. There is an unanimous judgment of European Court of Human Rights against indiscriminate collection of biometric data.

The old maxim, 'If you have nothing to hide, you have nothing to fear' has been given a very public burial. Database State, a report from the United Kingdom states, 'In October 2007, Her Majesty's Revenue and
Customs, lost two discs containing a copy of the entire child benefit database. Suddenly issues of privacy and data security were on the front page of most newspapers and leading the TV news bulletins. The
millions of people affected by this data loss, who may have thought they had nothing to hide, were shown that they do have much to fear from the failures of the database state.'  No one knows for sure whether it was lost or sold.

It is quite clear that convergence of NPR, UID/Aadhhar and Census is meant for tracking citizens for ever. Undertaking a surveillance or identification exercise on all the citizens of India is indeed a
matter of concern for legislatures, judiciary, citizens and media wedded to public interest.

Parliamentary Standing Committee on Finance headed by Yashwant Sinha in its report submitted to the Parliament on December 13, 2011 recorded what the Philippines Supreme Court has said in this regard:”
……the data may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be
too great for some of our authorities to resist” while rejecting a similar project. The Committee rejected the National Identification Authority of India Bill, 2010 of the Indian National Congress led
Government and took cognizance of the possibility of ‘manipulation of biometric information.’

Dr. M Vijayanunni, Census Commissioner and Registrar General of India underlined on February 2, 2013 why China gave up a similar exercise on Rajya Sabha TV. It is  available on
:https://www.youtube.com/watch?v=fpe37lkGDkQ

The unanimous decision of 17 judges of European Court of Human Rights dated December 4, 2008 ruled against the violation of the right to privacy and family life by biometric profile retention in databanks,
they 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. This decision is relevant for UPA
Government’s UID, National Population Register (NPR), Human DNA Profiling and voice print through Radio Frequency Identification (RFID).  The decision of the European Court of Human Rights is
available at: http://www.bailii.org/eu/cases/ECHR/2008/1581.html

The way census bodies are linking biometric information with identification of human being it seems a permanent Emergency architecture is unfolding where a citizen is transparent before the all mighty Government so that Government, their servant can remain opaque to safe guard the interests of undemocratic and ungovernable social control technology companies.

The key questions facing us are:

What would Government of India and Parliament of India do when cyber and biometric invasion into the privacy of Indians happens by foreign entities?

What will citizens, legislators and political parties do when they have sufficient evidence to infer that Government of India is colluding with cyber and biometric invasion into the privacy of Indians happens by foreign entities?

Did the citizens’ database that was handed over by Hosni Mubarak regime to the Government of USA prior to its fall facilitate the overthrow of Morsi regime in the recent coup by the military?

Notably, Member of Press Council of India, Arun Kumar has strongly disapproved of reporters subjecting themselves to biometric enrollment and attendance without examining its legality.

Citizens Forum for Civil Liberties (CFCL) has been pursuing a campaign against the biometric based Unique Identification (UID)/Aadhaar Number, National Population Register (NPR), National Intelligence Grid
(NATGRID), National Counter Terrorism Centre (NCTC), Radio Frequency Identification (RFID) and Direct Cash Transfer since 2010. It had appeared before the Parliamentary Standing Committee on Finance that rejected the UID Bill on December 13, 2011 in its report to the Parliament. It was an applicant before the National Human Rights Commission (NHRC), which in an order date December 27, 2012 addressed to Secretary, Union Ministry of Home Affairs communicated human rights concerns regarding UID and Radio Frequency Identification (RFID) submitted to it by CFCL. CFCL is an applicant before the Parliamentary Standing Committee on Subordinate Legislation regarding “Subordinate Legislation for Biometric Identity Card NRIC and Aadhhar/UID is illegal & illegitimate and Constitutional, Legal, Historical & Technological Reasons Against UID/Aadhaar Scheme on 18.3.2013.” CFCL is an applicant before the Press Council of India (PCI) on the complicity of some media organizations in the matter of enrolment for legally questionable biometric identification. It may also be noted that Election Commission has initiated efforts to make itself biometric ready by making itself subservient to UIDAI.

For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 09818089660, 08227816731, E-mail: gopalkrishna1715@gmail.com


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