Govts of Delhi and Rajasthan should withdraw the affidavit and circulars making aadhaar mandatory
January 15, 2014: The biometric Aadhaar based direct benefits transfer (DBT) was being implemented in 154 assembly seats of Delhi, Chhattisgarh, Madhya Pradesh and Rajasthan, Indian National Congress, the champion of DBT could win only 17 seats. In Delhi where DBT scheme was taken up in 63 assembly constituencies with Rs103 crore in cash transfers, the party won only eight seats. The Bharatiya Janata Party (BJP) won 31 seats and the Aam Aadmi Party (AAP) got 28 seats. The verdict is starkly against Aadhaar-based DBT. Instead of biometric Aadhaar-based DBT being a game changer for the Congress it has emerged as a regime changer.
The electoral verdict is evidence against the diagnosis and remedy of World Bank Group and its Indian votaries. The verdict indicates that political parties that support Aadhaar are bound to pay heavy electoral cost for their involvement and complicity in putting citizens to inconvenience through tried, tested and failed identification technologies of transnational companies. The democratic mandate in the assembly election is against UID/Aadhaar, which was made compulsory and caused hardship to residents.
Unmindful of the fact that people’s right to energy and to cooking fuel funded by government is being snatched away by linking it with Aadhaar. The right to life and livelihood is under tremendous threat because significantly large number of Indians has been moved away from fire wood and coal based cooking. Delhi, for instance, claims to be a 100% LPG state. That means right to life and livelihood can be snatched away with its link with Aadhaar. Thus, the threat of exclusion in absence of Aadhaar based on decrees and sanctions unleashes violence on the people. It made Aadhaar a pre-condition for every right of Delhi residents including right to marriage. This is unconstitutional and must be undone.
In view of the order dated 26 November 2013, the Delhi, MP, Chhattisgarh, Uttar Pradesh and all the other States will have to file its affidavit in the Supreme Court in Writ Petition (Civil) No(s) 494 of 2012 because notices have been “issued to all the States and Union Territories through standing counsel.” In its interim order dated 23 September 2013, the court has directed, “In the meanwhile, no person should suffer for not getting the Aadhaar card in spite of the fact that an authority had issued a circular making it mandatory and when any person applies to get the Aadhaar card voluntarily…”
When Ministry of Petroleum sought the modification of this order, this order was reiterated on 26th November wherein the court said, “Interim order to continue, in the meantime.” The next date of hearing is on 28 January 2014.
An editorial in The Financial Express (December 30, 2013) sounds worried as to ‘Where has the DBT gone?’ It argues that since between June and December 2013, about 1.84 crore customers in 184 districts have been given Rs1,700 crore of LPG subsidy transfers using Aadhaar as platform it is disturbing that Rahul Gandhi is talking about reviving and modernising Food Corporation of India (FCI) and shops under the public distribution system (PDS). It is unconvincingly argued in the editorial that if instead of cash transfer modernisation of existing infrastructure is undertaken, it will not plug annual leakages in the social security expenditure to the tune of Rs3 lakh crore.
Despite the ongoing electoral debacle being faced by Congress, it has failed to see the writing on the wall. If Rahul Gandhi is talking about modernisation of existing infrastructures in place of evidently failed initiatives like Aadhaar and DBT, it seems to imply that his trust in the prescriptions of Nandan Nilekani is beginning to erode. Notwithstanding this, the recent advertisements of the Ministry of Petroleum reveals that unless he bulldozes his opinion down their throat, the government is not likely to give it a burial but by then it will is going to be too late.
In such a backdrop, Governments of Rajasthan, Delhi, MP, Chhattisgarh and Uttar Pradesh should abandon 12 digit biometric Unique Identification (UID)/Aadhaar number and the related schemes. They must scrap UID/Aadhaar related regressive legacy of Congress-led regime which made right to have citizens’ rights dependent on being biometrically profiled and not on constitutional guarantees and Universal Declaration of Human Rights. This 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. Should it not be resisted?
Out of the 49 assembly constituencies where direct benefits transfer (DBT) implemented, the Congress could win only 3. The BJP won 39. This is verdict against aadhaar linked programs of the Congress party. BJP cannot afford to delay announcement of its abolition. It should unsign the Memorandum of Understanding (MoU) the State Government signed with illegal and illegitimate Unique Identification Authority of India (UIDAI) headed by Congressman, Nilekani. The MoU was co-signed D. B. Gupta Principal Secretary, Planning, Government of Rajasthan and B. B. Nanawati, Deputy Director General, UIDAI, Planning Commission on May 28, 2010.
The new Government should annul Resolution No: UID-102010-494-S dated 15.01.2010 and disband the State Level Advisory Board for UID Implementation under the Chairmanship of the Chief Secretary, Rajasthan created vide Resolution No: UID-102009-UOR-45-Sdated 03.07.2009 to oversee and guide the implementation of the biometric UID/aadhaar project in Rajasthan.
So far Rajasthan is the only state which has filed its affidavit in the matter of biometric aadhaar number in compliance with the Supreme Court’s order of November 26, 2013 seeking affidavits from all the states. Vasundhara Raje Scindia assumed the office as the 24th Chief Minister of Rajasthan on 13 December, 2013 defeating Ashok Gehlotof Indian National Congress. It was unethical and inappropriate for the Ashok Gehlot Government to have filed the affidavit in the matter on December 5, 2013 knowing instead of waiting for the new Chief Minister to take over.All the citizens of 33 districts of the state await Raje’s intervention to save them from the harassment caused to them due to the implementation of illegal and illegitimate biometric aadhaar number scheme.
In its preliminary reply filed by Dr Hansraj Yadav, Additional Director (UID), Department of DoT& C, Government of Rajasthan under the regime of Indian National Congress in the matter of Aruna Roy Vs Union of India which is attached Justice Puttaswamy’s Petition against biometric aadhaar, submitted, “The State of Rajasthan is unambiguously in favour of implementation of Aadhaar Scheme. In fact, ifAadhaar Scheme as conceived and contemplated is implemented throughout the country then every resident shall have a unique identification number (UID) and which shall have obvious positive impact. Therefore, one cannot find fault with overarching scheme which postulates a unique identification number for every resident of the country.”
The affidavit submits, “The biometric science would only identify the concerned person and it is only for identification of person. Thus, use of aforesaid information cannot be termed as Invasion of Privacy and adequate care has been taken that the data collected during the preparation of Aadhaar Card does not come in public domain.”
It is not clear as to how this “obvious” inference has been arrived at.
But when one reads what this affidavit argues about the powers of the Supreme Court then it becomes abundantly clear that it is not only dismissing the fundamental rights of citizens but also the powers of the Court. It submits, “It is most respectfully submitted that the Court has very limited powers of judicial review to examine a policy decision.” This argument will have us believe that court has limited powers and the government has unlimited powers.
On the issue of “Lack of competence of Executive to implement Aadhaar Scheme in absence of legislation or when legislation is being contemplated by t he Parliament”, it submits that “The executive power is only fettered by the fact that it should not be inconsistent with any law made by the Parliament or which contravenes the fundamental rights of the resident. In the present matter, the Union of India had the legislative competence to enact law and therefore shall proprio vigora have requisite executive power.” The Latin phrase PROPRIO VIGORE means by its own force or vigor or of one’s own strength. This proposition in the affidavit is absurd and the phrase in question has been used in an inappropriate context. The fact is that Government of India can introduce the Bill in the Parliament and propose the law to the Parliament but it does not mean it has “the legislative competence to enact law”, the competence for enactment of law lies with the legislature.
The affidavit is deliberate creating ambiguity about the involvement of private agencies and confines itself to the agencies involved in the distribution of aadhaar. It feigns ignorance about involvement of transnational identification technology companies who admittedly work with foreign intelligence agencies.
Ashok Gehlot Government had issued a circular on October 17, 2012 for all the residents of Rajasthan including government servants to get enrolled for aadhaar. Field visits in Rajasthan in February 2013 revealed that two months after the roll out in 20 pilot districts, the total amount of money transferred nationally was only 5.5 crores through the aadhaar based payment network. In Ajmer, out of some 20,000 potential beneficiaries, only some 220 beneficiaries received money in the bank through the biometric aadhaar. Even this money was not through a biometric identification illustrating how it was a failure. In the Janani Suraksha Yojna, out of some 1400, only 139 women who delivered children in the hospital received money in the bank through aadhaar sans biometrics.
The experiment in Kotkasim, Alwar district, Rajasthan brought to light the fact that the crash in sale of kerosene happened because many ration card holders did not have bank accounts but financial newspapers reported that the sale dropped because leakage has been plugged based on District Collector’s report. The fact was since the subsidy could not be reimbursed to many ration card holders, they were compelled to stop buying kerosene. The banks are located far away adding to the villagers having to incur transport expenses. If such experiments continue even the existing system will collapse as people are being driven out from it. It is not about the “bogey of non-access to public services”, these experiments reveals that the aadhaar based system is not working.
Congress led Rajasthan Government had linked link 10 key schemes to the aadhaar unique identification programme making aadhaar compulsory for arms license, old-age, widow and differently-abled pension schemes, rural job cards, ration cards, driving license, property registration, water and electricity connections, Indira Awas Yojna and student scholarships.
The affidavit observes, “since Aadhaar number corresponds to a unique record, therefore, tagged to a unique individual, merely introduction of Aadhaar in the beneficiary database ensures detection of a large number of duplicates.”
The fact is that there is no evidence about the extent of the leakage due to duplicates. The paper done by the National Institute of Public Finance and Policy at the behest of UIDAI is an exercise in assumptions because the authors themselves admit that their data is outdated and in some aspects the data is not available. This is admittedly not an independent study as was claimed by Nilekani in April 2013 in Washington. The biometrics collected for “de-duplicating” all the residents of Rajasthan is an improbable task because the December 2009 report of UIDAI’s committee on biometrics revealed that in its sample of 25,000 people, 2-5 per cent 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. In the Indian environment, experience has shown that the failure to enrol is as high as 15 % due to the prevalence of a huge population dependent on manual labour, according to R S Sharma, the then Director General and Mission Director, UIDAI. When as many as 15 % fail to enroll, how does “Aadhaar in the beneficiary database ensures detection of a large number of duplicates.”
The affidavit submits, “It is equally a sedimented proposition of law that possibility of misuse or even some aberrations whilst implementation or enforcement of a policy decision would not invalidate a scheme or policy decision.” Similar indefensible arguments have been advanced by Congress led Government at centre in the matters of coal block allocation and 2 G spectrum allocation. It has been admitted by the Government that Court can intervene if “the policy decision is patently arbitrary, discriminatory or mala fide,” there is sufficient evidence to infer that decisions regarding aadhaar and related schemes are ‘patently arbitrary, discriminatory or mala fide’. It is arbitrary because there was no feasibility study and no cost-benefit analysis that preceded their launch. In response to a question in the Lok Sabha: "whether any pre-feasibility study or cost benefit analysis was done before the notification for creation of UIDAI was issued on 28-01-2009; if so, the details thereof," V Narayanaswamy, as Minister of Planning, replied on 18 August 2010 that "An Empowered Group of Ministers which was constituted in December 2006 .... decided that a Unique Identification Authority of India be constituted under the Planning Commission and be made responsible for implementing the project which would aim at better targeting of welfare services, improving efficiency of the services and better governance. The benefits accruing out of the project should far outweigh the cost of the project." It did not undertake the cost-benefit analysis and this was underlined by the Parliamentary Standing Committee on Finance in its report. It is mala fide because it has not disclosed to Indians that the biometric profiling under aadhaar is linked to National Population Register (NPR), which in turn is related to National Intelligence Grid.
The new government in Rajasthan should immediately withdraw this circular issued by C K Mathew, the Chief Secretary in compliance with the Supreme Court’s order to tide over the sad legacy of the Congress government.
All parties must 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.
They ought to take note of the fact that endorsing Supreme Court’s order dated 23 September 2013 against Aadhaar, even Parliamentary Standing Committee (PSC) on Finance in its most recent report dated 18 October 2013 has asked Government of India to issue instructions to state governments and to all other authorities that 12-digit biometric Unique Identification (UID)/Aadhaar number should not be made mandatory for any purpose. The Seventy Seventh Report of the 31-member Parliamentary Standing Committee (PSC) on Finance reads, “Considering that in the absence of legislation, Unique Identification Authority of India (UIDAI) is functioning without any legal basis, the Committee insisted the Government to address the various shortcomings/issues pointed out in their earlier report on 'National Identification Authority of India Bill 2010' and bring forth a fresh legislation.”
In the meanwhile, a resolution was passed by West Bengal Assembly on 2 December 2013 against biometric Aadhaar-related programs. It is evident that from the resolution against the Aadhaar that all the parties other than Congress are opposed to the implementation of Aadhaar-based programs.
Notably, wherever DBT scheme based on Aadhaar was launched in the states that went for elections recently, Congress lost. Rahul Gandhi had turned Aadhaar as his key promise in UP and Amethi, but he and his party lost miserably in Uttar Pradesh election too. Promises based on biometric Aadhaar are like India Shining campaign of BJP-led government which is rooted in a make believe world to which Indian voters are allergic. Even Sanjay Gandhi faced the adverse consequences of forcing planning on human body. Aadhaar-linked programs make Indian citizens subjects of Big Data companies. It is akin to Sanjay Gandhi's forced family planning programs.
The abandonment of biometric Aadhaar number will demonstrate that these governments will end the culture of spying on citizens in myriad disguises. This will help citizens stand up against illegitimate advances of the state.
For Details: Gopal Krishna, Member, Citizens Forum for Civil Liberties (CFCL), Mb: 09818089660, E-mail:firstname.lastname@example.org