Why late Justice Krishna Iyer opposed biometric aadhaar like late S R Sankaran and late K. G. Kannibaran
Justice V. R. Krishna Iyer, a people’s judge of the Supreme Court who passed away on December 4, 2014 in Kochi opposed Biometric Aadhaar and Planning Commission’s Unique Identiﬁcation Authority of India (UIDAI). Although his views have been endorsed by the Parliamentary Standing Committee on Finance, Supreme Court, Punjab and Haryana High Court and National Human Rights Commission besides European Court of Human Rights, governments of UK, France, Australia, China and Supreme Court of Philippines, the present Bhartiya Janta Party led Government like the previous Congress Party led Government is bulldozing the biometric data based 12 digit Unique Identiﬁcation (UID) number branded as aadhaar.
The order of the Supreme Court dated March 24, 2014 reveals that Justice Iyer and his co-signatories are right in demanding stoppage of the biometric aadhaar and related projects. It also demonstrates that all the circulars and orders of Government of India and State Governments are illegal and illegitimate.
Notably, late Justice Krishna Iyer, late K.G.Kannabiran, Senior Civil Liberties Lawyer and late S. R. Sankaran, retired Secretary, Government of India demanded that "the project should be halted before it goes any further and the prelude to the project be attended to, the public informed and consulted, and the wisdom of the project determined".
Unmindful of this Central Government's promptness to promote and support aadhaar is coinciudentally supported by Mukesh Ambani of Reliance Industries has expressed his support for biometric identification saying, “Aadhaar, an initiative of Unique Identification Authority of India, will soon support the world’s largest online platform to deliver government welfare services directly to the poor.” He has written this in a chapter titled ‘Making the next leap’ endorsing biometric profiling based identification in the book ‘Reimagining India’ edited by McKinsey & Company published by Simon & Schuster in November 2013. This appears to be an explicit signal to the political parties and media houses who receive direct and indirect corporate donations from companies as their clients in myriad disguises. Parliament remains a mute spectator to illegal and illegitimate implementation of aaadhaar related programs.
Before their death 17 eminent citizens including Justice Iyer, Kannabiran and Sankaran issued a Statement of Concern against the biometric UID/aadhaar number. The other signatories included Prof Romila Thapar, historian, Justice A.P.Shah, Retired Chief Justice of High Court of Delhi, Prof. Upendra Baxi, noted jurist and ex-Vice Chancellor of Universities of Surat and Delhi, Trilochan Sastry, Indian Institute of Management, Bangalore and Association for Democratic Reforms (ADR), Bezwada Wilson, leader of Safai Karamchari Andolan and Prof. Jagdish Chhokar, ex- IIM, Ahmedabad, and ADR.
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. The process of setting up the Authority has resulted in very little, if any, discussion about this project and its effects and fallout. The documents on the UIDAI website, and a recent draft law (the National Identification Authority Bill) do not provide answers to the many questions that are being raised in the public domain. This project is intended to collect demographic data about all residents in the country. It is said that it will impact on the PDS and NREGA programmes, and plug leakages and save the government large sums of MONEY. It would, however, seem that even basic procedures have not been followed before launching on such a massive project.
Before it goes any further, we consider it imperative that the following be done:
• Do a feasibility study: There are claims made in relation to the project, about what it can do for PDS and NREGA, for instance, which does not reflect any understanding of the situation of the situation on the ground. The project documents do not say what other effects the project may have, including its potential to be intrusive and violative of privacy, who may handle the data (there will be multiple persons involved in entering, maintaining and using the data), who may be able to have access to the data and similar other questions.
• Do a cost:benefit analysis: It is reported that the UIDAI estimates the project will costs Rs 45,000 crores to the exchequer in the next 4 years. This does not seem to include the costs that will be incurred by Registrars, Enrollers, internal systems costs that the PDs system will have to budget if it is to be able to use the UID, the estimated cost to the end user and to the number holder.
• In a system such as this, a mere statement that the UIDAI will deal with the security of the data is obviously insufficient. How does the UIDAI propose to deal with data theft? If this security cannot be reasonably guaranteed, the wisdom of holding such data in a central registry may need to be reviewed.
• 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.
• Constitutionality of this project, including in the matter of privacy, the relationship between the state and the people, security and other fundamental rights.
Questions have been raised which have not been addressed so far, including those about –
• Undemocratic process: UIDAI was set-up via a GoI notification as an attached office of the Planning Commission without any discussion or debate in the Parliament or civil society. In the year and a half of its inception, the Authority has signed MoUs with virtually all states and UTs, LIC, Petroleum Ministry and many banks. In July, the Authority circulated the draft NIA Bill (to achieve statutory status); the window for public feedback was two weeks. Despite widespread feedback and calls for making all feedback public, the Authority has not made feedback available. Further in direct contravention to the process of public feedback, the NIA Bill was listed for introduction in the Lok Sabha 2010 monsoon session
• Privacy (It is only now that the DoPT is said to be working on a draft of a privacy law, but nothing is out for discussion even yet)
• Surveillance: where this technology, and the existence of the UID number, and its working, could result in increasing the potential for surveillance
• Profiling Tracking
• Convergence, by which those with access to state power, as well as companies, could collate information about each individual with the help of the UID number.”
It further stated, “National IDs have been abandoned in the US, Australia and the newly-elected British government. The reasons have predominantly been: costs and privacy. If it is too expensive for the US with a population of 308 million, and the UK with 61 million people, and Australia with 21 million people, it is being asked why India thinks it can prioritise its spending in this direction. In the UK, the Home Secretary explained that they were abandoning the project because it would otherwise be `intrusive bullying’ by the state, and that the government intended to be the `servant’ of the people, and not their `master’. Is there a lesson in it for us? In the late nineties, the Supreme Court of Philippines struck down the President’s Executive Order A.O 308 which instituted a biometric based national ID system calling it unconstitutional on two grounds – the overreach of the executive over the legislative powers of the congress and invasion of privacy. The same is applicable in India – UIDAI has been constituted on the basis of a GoI notification and there is a fundamental risk to civil liberties with the convergence of UID, NATGRID etc.”
The Statement of Concern reads: “The UIDAI is still at the stage of conducting pilot studies. The biometric pilot study has reportedly already thrown up problems especially among the poor whose fingerprints are not stable, and whose iris scans suffer from malnourishment related cataract and among whom the incidence of corneal scars is often found. The project is clearly still in its inception. The project should be halted before it goes any further and the prelude to the project be attended to, the public informed and consulted, and the wisdom of the project determined. The Draft Bill too needs to be publicly debated. This is a project that could change the status of the people in this country, with effects on our security and constitutional rights, and a consideration of all aspects of the project should be undertaken with this in mind.”
It concluded, “We, therefore, ask that the 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 project), a cost : benefit analysis be done and a public, informed debate be conducted before any such major change be brought in.”
This is the statement of the same Justice Iyer on whose passing away President Pranab Mukherjee said, “As an eminent jurist, he used law as an instrument of social engineering and social change making justice accessible to all, including the marginalized and the vulnerable. As a judge of the Supreme Court of India, he made immense contribution to the development of human rights jurisprudsence. His sad demise leaves a void which is difficult to fill.”
Greeting Justice Iyer on his 100th birthday, Prime Minister, Narendra Modi said, “Legal luminary, philosopher and intellectual, Justice Krishna Iyer is an Institution in himself, who dedicated his life to the Nation. Justice Iyer’s life and works are an inspiration to all of us. My interactions with him have been very enriching. I learnt a lot from him,” But when it comes to following Justice Iyer’s recommendations on biometric aadhaar, the government seems to ignore it and follow the advice of India’s richest man.
Citizens Forum for Civil Liberties (CFCL) demands a white paper on the legality of biometric data collection and work undertaken under the project. CFCL is involved in the research and advocacy against surveillance technologies since 2010. It has appeared before the relevant Parliamentary Committee that questioned the biometric identification of Indians without any legal mandate. In the face of such assault on citizens’ rights and the emergence of a regime that is making legislatures subservient to database and data mining companies, the urgent intervention of the progressive political parties, legislators and informed citizens must not be postponed anymore.
For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 09818089660, 08227816731, E-mail:firstname.lastname@example.org