Shri Pranab Mukherjee
Hon’ble President of India
Date: April 5, 2017
Subject- Request for seeking Hon’ble Supreme Court’s opinion under Article 143(2) of the Constitution of India on the constitutionality of Biometric UID/Aadhaar matter
Respected Rashtrapati Jee,
Greetings from Citizens Forum for Civil Liberties (CFCL)!
We are aware that your illustrious tenure as 13th President of India will be over in July, 2017 keeping the same in mind and pursuant to a “Statement on the Illegitimate and Inappropriate Use Money Bills and Finance Bills” sent by more than 200 concerned citizens expressing concern over the classification of the Finance Bill, 2017 as a “Money Bill” to the Chairperson of the Rajya Sabha, this is to apprise you that as concerned citizens, we are appalled at the Government’s use of “Money Bill” route to push through important legislations that affects all the Indians. It is apparent that the way government pushed the biometric Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 in the Lok Sabha as a “money bill” abandoning the vociferous objections to it has set a very unhealthy precedent for all the legislatures of the country.
We wish to draw your attention towards what Prof. Giorgio Agamben, a 74-year-old Italian philosopher and professor at the University of Venice and New York University, predicted in 2004 that the “bio-political tattooing” is the precursor to what would later turned into a normal identity registration of a good citizen. It provides for continuity between the world of the Nazi concentration camp and contemporary democracy. It paves way for a genocidal liberal order. Biometrics “concern the enrolment and the filing away of the most private and incommunicable aspect of subjectivity”, which consequents into the capture of the human body by the authorities for good. Till now such assault on the private human body was an exception, now it is becoming the norm.
We submit that surveillance has been used as a tool to shape the relationship between the citizen and the State. Both identification and surveillance have co-existed since times immemorial, but it is now assuming frightening architecture with the marriage of statistics of biological characteristics, and biometric technology with digital sculpture. The reference to “such other biological attributes” in Section 2 (g) of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 and the definition of the “biometrics” under 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 underline that it includes “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”. It is abundantly clear that the plan of UID/Aadhaar based surveillance does not end with collection of fingerprints and iris scan, it goes quite beyond it.
We submit that colonial powers had suspect identification offices in Egypt and Bengal, India after the development of biometric identification by Sir Francis Galton, an English eugenicist who supported slavery. In Imprint of Raj: How Fingerprinting was born in Colonial India (2003), Chandak Sengoopta reveals how biometric identification technique was fine-tuned by the Bengal Police. Eugenics and slavery has long been abandoned, the scientific claims of biometrics too have been found to be dubious by reputed institutions.
We submit that if surveillance is not a big deal why is Shri Edward Snowden in Moscow since 23 June 2013? Why has Australian journalist Shri Julian Assange been holed up in the Ecuadorian Embassy in London since 19 July 2012? And why was Ms Chelsea Elizabeth Manning (Bradley Edward Manning) sentenced to 35 years imprisonment in August 2013? If surveillance is indeed such an innocent act, then why has the entire US establishment been paranoid about surveillance from Russia?
We submit that the word ‘surveillance’ is being made to sound benign as desired by international financial institutions and irresponsible officials and former officials.
We submit that it must be recalled that Press Information Bureau, Government of India had announced that the National Identification Authority of India Bill, 2013 following Union Cabinet’s approval for moving official amendments as a consequence of the 13th December, 2011 report of the Parliamentary Standing Committee on National Identification Authority of India Bill, 2010 which was introduced in the Rajya Sabha on 3rd December, 2010. The 2010 Aadhaar Bill which was pending in the Rajya Sabha was withdrawn and Aadhaar Bill, 2016 on March 3, 2016. It was passed on 11 March 2016 by the Lok Sabha. The specific provisions of the Act came into force from 12 July and 12 September 2016.
We submit that linking of biometric Unique Identification (UID)/Aadhaar number to all public services is designed to cause “civil death”. Civil death is the loss of all or almost all civil rights by a person caused by the government of a country. It is clear that denial of rights in the absence of UID/Aadhaar is an act of coercion that would lead to civil death, this tatamount to normalisation of cruelty towards Indian residents. It creates a compelling logic for scrapping of the biometric identification exercise.
We submit that adoption of Money Bill route is part of unconstitutional and undemocratic strategy employed in the case of the UID/Aadhaar Bill in now being adopted for other Bills as well even though they contains many provisions that go well beyond issues relating to taxation and money appropriations of the government, which will directly affect every citizen of the country in numerous ways. Despite the fact the millions of citizens will be denied their rights because of this, the Aadhaar Act makes access to many essential and other public services contingent on UID/Aadhaar. It is already evident that making it compulsory in food distribution in some states has excluded many needy and deserving citizens without cause.
We submit that the Act allows for unprecedented surveillance of every citizen and massive denial of fundamental rights. These can be used by governments at different levels to target political opponents and dissidents, as well as others. It enables sharing of personal sensitive information of Indian residents with private foreign companies. It renders all Indians vulnerable to identity theft, fraud, cyber-piracy, data breaches and other uses of their personal data with very serious security implications.
We wish to draw your urgent attention towards the Report of Parliamentary Standing Committee (PSC) on Information Technology on Cyber Crime, Cyber Security and Right to Privacy presented to the Parliament on 12th February 2014. We seek imposition of moratorium on use of internet communications networks by government agencies in the light of report of this Parliamentary Standing Committee at least till the time communications between government agencies is secured. This is required given the fact that Government of USA and Government of UK and their intelligence allies are undertaking “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple” as per document of National Security Agency revealed by Shri Edward Snowden to ensure that all the computers used in all sensitive government offices are de-linked from internet and webcam in the wake of leakages and secessions from key intelligence agencies. All the government officials and ministers who used the account of these private companies (including other private agencies) for official work must be asked to surrender their email accounts with passwords for a thorough cyber probe.
We submit that Prof Nicholas Negroponte, the author of Being Digital revealed in 1995 that the Internet was conceived and designed by a man named Shri Larry Roberts in 1963. Shri Roberts was invited to Washington by Ivan Sutherland, the then head of Advanced Research Projects Agency (ARPA)’s computer research. Internet was called ARPA network (ARPAnet) then and was designed to be a fail-safe messaging system that packetized information. The military was funding ARPAnet at a time when the cold war was almost at its peak. Some countries including United States, want to make sure that there is some means for them to listen into messages, like wiretapping.
We submit that the government must be asked to devise a method to secure the interest of Indians from IT companies that have the potential to turn into Trojan horses at strategic moments on signals from their home countries. We must pay heed to the statement of Shri Julian Assange of Wikileaks, who may have to stay in Eucadorian Embassy until 2022 saying, “Who arrogates the power to spy on the entire earth-every single of us-and when he is caught red handed, explains to us that “we’re going to have to make a choice. Who is that person? Let’s be careful about who we call “traitor”. Edward Snowden is one of us. Bradley Manning is one of us. They are young, technically minded people from the generation Barack Obama betrayed. They are the generation that grew up on the internet, and were shaped by it.” India must explicitly or implicitly take a position on the revelations made about Five Eyes Intelligence Alliance and surveillance on head of States that has come to light thanks to the efforts of Shri Assange and Shri Snowden. A High Powered Committee needs to be given the task of analyzing and verifying the revelations made by Wikileaks and Snowden in a rigorous manner. India’s foreign policy and other related policies need to be guided in the light of these disclosures and should not remain caught in a time warp.
We must be wary of advocates of national identity cards as if “everyday forms of identity surveillance” is natural and rational. How is it that when heads of states are put under round the clock surveillance by colonial and imperial powers it is deemed an assault on national sovereignty but when a national government undertakes the same over their masters, the citizens, it becomes natural and rational. The democratic mandate is against electronic and biometric identification exercises like aadhaar and national population register and Bihar’s E-shakti card project, the new government should retrieve data collected by foreign intelligence companies like Mongo DB, Safran Group, Accenture, Ernst & Young and others and fix accountability now that Shri Nilekani stands exposed and defeated.
We submit that government must take a position on cloud computing especially in the aftermath of disclosures by whistleblowers like Wikileaks, Ms Manning, Shri Snowden and the recent report of the Parliamentary Standing Committee on Information Technology on Cyber Crime, Cyber Security and Right to Privacy reveals how UID/Aadhaar number compromise both national security and citizens’ sovereignty for good. This report inquired about NSA’s surveillance. It is disappointing to note that the current Chairman, UIDAI as Secretary, DEITY submitted that NSA was only collecting meta data as if such data collections by foreign agencies is excusable and tolerable. The database of UID/Aadhaar numbers (Centralized Identities Data Repository) is being stored on cloud because admittedly it’s an online database which is beyond India’s jurisdiction. The servility of the government towards agencies like USA’s NSA and their infantile reactions recorded in the report of the Parliamentary Standing Committee in the face of evidence that the entire union cabinet was under NSA’s surveillance must be remembered as one of the dark chapters of Indian history. In their abject meekness Prime Minister’s Office (PMO) did not hide even an iota of information from the NSA but it has been reluctant to share its correspondence with Shri Nilekani under the Right to Information (RTI) Act.
We submit that now that Unique identification Authority of India (UIDAI) and its 12 digit biometric Unique Identity (UID)/Aadhaar Number project is hosted again in MeitY under the Allocation of Business Rules (Inserted vide Amendment series no.318 dated 12.09.2015 (Earlier inserted under Planning Commission vide Amendment Series no.296 dated 22.02.2010, and in NITI Aayog vide series no.312).
It is noteworthy that in its report to Parliament, the Parliamentary Standing Committee on Finance has taken on board studies done in the UK on the identity scheme that was begun and later withdrawn in May 2010, where the problems were identified to include”(a) huge cost involved and possible cost overruns; (b) too complex; (c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs.” The UK identity card scheme was cited as an example by the irresponsible promoters of UID/Aadhaar, but now that UK has abandoned it in supreme public interest they are are tightlipped about it.
It must also be noticed that even the Identification of Prisoners Act, 1920 (currently in force) reads: “The object of this bill is to provide legal authority for taking measurements, finger impressions, footprints and photographs of persons convicted of, or arrested in connection with, certain offences.” According to the Identification of Prisoners Act, 1920, at the time of the acquittal of the prisoner, his biometric data is required to be destroyed. Since 1857, fingerprint identification methods have been used by police agencies in India and around the world to identify suspected rebels, political dissidents and criminals. The method is unfolding to indiscriminately profile citizens in general to identify them. The UID/Aadhaar project, however, stores the biometric data forever. This makes citizens worse than prisoners.
We submit that citizens’ opposition to UID/aadhaar has a historical context. It is linked to more than a century old world famous ‘Satyagraha’ of Mahatma Gandhi in order to oppose the identification scheme of the government in South Africa. On 22nd August, 1906, the South African government published a draft Asiatic Law Amendment Ordinance. The Ordinance required all Indians in the Transvaal region of South Africa, eight years and above, to report to the Registrar of Asiatics and obtain, upon the submission of a complete set of fingerprints, a certificate which would then have to be produced upon demand. The move proposed stiff penalties, including deportation, for Indians who failed to comply with the terms of the Ordinance. Knowing the impact of the Ordinance and effective criminalisation of the entire community, Mahatma Gandhi then decided to challenge it. Calling the Ordinance a ‘Black Act’ he mobilised around 3,000 Indians in Johannesburg who took an oath not to submit to a degrading and discriminatory piece of legislation. Biometric aadhaar case demonstrates how ‘Those who forget history are condemned to repeat it’. Biometric profiling is inherently dangerous because it tracks individuals based on their religious, behavioural and/or biological traits. History is replete with examples wherein such profiling has been used for genocide, holocaust and violence against all kinds of minorities.
In fact such profiling with biometric aadhaar is fraught with dangers of genocide and communal crisis at the local, regional and national level.
We submit that what the government’s proposal means is underlined in a confidential document of UIDAI titled ‘Creating a unique identity number for every resident in India’, leaked by Wikileaks on 13th November, 2009. It revealed, “One way to ensure that the unique identification (UID) number is used by all government and private agencies is by inserting it into the birth certificate of the infant. Since the birth certificate is the original identity document, it is likely that this number will then persist as the key identifier through the individual’s various life events, such as joining school, immunizations, voting etc.” This paved way for all round surveillance adversely impacting political rights of present and future generations guaranteed by the preamble of the Constitution of India and is making right to civil liberties extinct. It is making right to have rights dependent on having biometric UID/aadhaar Number.
We wish to draw your attention towards a judicial verdict in UK, in a case filed by the Labour MP Mr Tom Watson and the Conservative MP David Davis, UK’s High Court declared the Data Retention and Investigatory Powers Act (DRIPA), 2014 as illegal. This Act provided access to everyone’s data by the police and other agencies including permission for interception of communications. Interception of biometric data also falls in the same category.
We submit that on 10th March, 2015, Press Information Bureau, Union Ministry of Home Affairs issued a press release titled “Legal Framework and Parliamentary Scrutiny over Intelligence Agencies” It reads: “There is no information on the reported refusal of the RBI and other banks to provide NATGRID an access to their database. As per Cabinet Committee on Security (CCS) mandate, the information/ data relating to Financial Sector has to be obtained by NATGRID through Financial Intelligence Unit (FIU). A nodal officer has already been appointed by FIU to have interaction with NATGRID. The issue of accountability of Intelligence Agencies like IB and RAW, and oversight mechanism including by a Parliamentary Committee is the subject matter of a Writ Petition in the Hon’ble Supreme Court, in which the Government has taken a view that the existing oversight structure is adequate. The matter is sub-judice at present. The NATGRID and Unique Identification Authority of India (UIDAI) have not been declared as Intelligence Agencies.” It is noteworthy that this was stated by the Union Minister of State for Home Affairs, Shri Haribhai Parathibhai Chaudhary in a written reply to Dr. Tharoor in the Lok Sabha.
We submit that the ambiguous farming of the sentence regarding NATGRID and UIDAI having “not been declared as Intelligence Agencies” merits rigorous parliamentary scrutiny.
We wish to draw your attention towards the Annual Report of Home Ministry (2009-2010) on page 26 reads, “Government have, in principle, agreed to set up National Intelligence Grid (NATGRID).” The Annual Report of Home Ministry for 2011-12 reads: “NATGRID has been set up as an attached office of the Ministry of Home Affairs in April, 2010. NATGRID will link databases for constructing actionable intelligence to combat terrorism and internal security threats. It is mandated to create a facility that improves India’s capability to counter internal security threats….(For the same) 39 posts at various levels have been created.” It may be recalled that NATGRID was given in-principle approval by the Union government on 6th June, 2011 after a meeting of the Cabinet Committee on Security to facilitate convergence of information from 21 categories of database such as railway and air travel, income tax, bank account details, credit card transactions and visa and immigration records including combined data of 11 agencies, including the Research and Analysis Wing, the Intelligence Bureau, the Enforcement Directorate, the National Investigation Agency, the Central Bureau of Investigation, the Directorate of Revenue Intelligence and the Narcotics Control Bureau. It is claimed that the idea of NATGRID emerged after the Mumbai terror attacks of November 26, 2008 but reports indicated that Ministries of Defence and Finance had reservations about it. UID/aadhaar was formally in pipeline at least since 2006-2007. The detailed project report of NATGRID was ready in December 2010. Both appear to be part of Transformation Government project of World Bank Group that failed in UK.
We submit that expressing concern about the conspiracy of the non-state actors that disturbs the confidence of ‘global investor’, the 121 page 2009 report of the Task Force on National Security and Terrorism constituted by the undeclared undemocratic political party of pre-independence times – Federation of Indian Commerce and Industry (FICCI), at page 70, argues for a secure E-network for connecting all district headquarters and police stations NATGRID under National Counter Terrorism Agency. It observed, “As Nandan Nilekani goes into operationalising the UIDAI, there is a case for factoring inclusion data as part of the national grid to assist in counter terrorism.” This is not the first time that NATGRID and UID/aadhaar link is underlined. Another joint report of the Associated Chambers of Commerce and Industry (ASSOCHAM), an undeclared political party of companies and KPMG, Swiss Consultancy titled “Homeland Security in India, 2010” had revealed it. ASSOCHAM’s joint report of June 2011 with Aviotech, an initiative of the promoters of the Deccan Chronicle Group titled “Homeland Security Assessment India: Expansion and Growth” refers to the “The requirement in Biometrics for all the subsequent programs under the National Census will become significant. This shows where the NPR program which is linked to UID is headed.” The report refers to possible targeting of Indian, Western and Jewish installations as retaliation against ongoing North Atlantic Treaty Organisation (NATO), a 28-nation military alliance led operations in Afghanistan.
It is noteworthy that the origins of the UID and Radio-Frequency Identification (RFID) process within the US Department of Defense started under Michael Wynne, former Under Secretary of Defense for Acquisition, Technology and Logistics (AT&L) from 2003 till 2005. Within NATO, two documents deal so far with unique identification (UID) of items. The first one is standardization agreement, which was ratified in 2010. The second one is a “How to “guide for NATO members willing to enter in the UID business. India appears to be behaving like a NATO member under some structural compulsion. There is a need inquire into UID/Aadhaar as part of NATO’s global policy to ascertain how it serves India’s national interest.
We submit that UIDAI and its database based on UID/Aadhaar number is linked to National Intelligence Grid (NATGRID). We wish to draw your attention towards a paper by Capt. Raghu Raman who was hired as chief executive officer of the NATGRID project by MHA. Capt. Raman is the author of a four-page document titled A Nation of Numb People urging “commercial czars” to protect “their empires” because “Internal security is falling apart”… So, ‘It’s time for the corporates to step in.’ He advises ‘Enterprises would need to raise their own protection units…’ ‘Think of it,’ he says ‘as a private territorial army.’
It is noteworthy that Capt Raman has been the Chairman of Internal Security Committee, Bombay Chamber of Commerce & Industry (BCCI), Head of Subgroup on Industry Guidelines, a Member of National Task Force on Internal Security, the Confederation of Indian Industry (CII), Member of Citizens’ Advisory Committee appointed by the Bombay High Court, Member, Advisory Council, India Information Security Conference and member of the London Speaker Bureau. He is the former CEO of Mahindra Special Services Group (MSSG) – a leading corporate security risk consulting firm that helps organizations reduce risk and enhance competitive advantage. He has been Coordinator for IT in Mahindra United World College. He was the CEO of AutomartIndia (now known as FirstChoice). He arrived in India to address the insecurities of corporations.
Capt Raman has been facilitating corporation’s desire to control population as is evident from FICCI’s 2008 December report on National Security and Terrorism, and ASSOCHAM and KPMG’s 2010 report on Homeland Security in India, which underlines the link between NATGRID and the UID/aadhaar as tracking devices. In May 2011, the government extended the services of NATGRID CEO Capt Raman for six months from June 1st, 2011. Approval for it was withheld last year. Capt Raman had the responsibility of setting up the IT Infrastructure including the hugely ambitious Internet Connectivity link-a convergence project in his earlier incarnations besides having been trained in hacking in Foundstone and in Competitive Intelligence in the US. The current government did not renew the contract of Capt Raman but NATGRID is unfolding the way UIDAI’s project is unfolding even in the formal absence of Shri Nilekani from the government.
We submit that that UID/Aadhaar Number is linked to Islamabad based National Database & Registration Authority (NADRA) that was established in March 2000 to provide integrated homeland security solutions in Pakistan. Earlier, it was established as National Database Organization (NDO), an attached department under the Ministry of Interior, Government of Pakistan in 1998. On 10th March, 2000, NDO & Directorate General of Registration (DGR) merged to form NADRA, an independent corporate body with requisite autonomy to operate independently and facilitate good governance. With the mandate of developing a system for re-registering 150 million citizens, NADRA launched the Multi-Biometric National Identity Card project developed in conformance with international security documentation issuance practices in the year 2000. The program replaced the paper based Personal Identity System of Pakistan that had been in use since 1971.This year is also quite important. To date over 96 Million citizens in Pakistan and abroad have utilized the system and its allied services to receive tamper resistant ISO standard Identification Documents. NADRA has developed solutions based on Biometrics and RFID technology and has the largest IT infrastructure in Pakistan with highly qualified technical and managerial resources enabling NADRA to provide customized solutions to any country. The million-dollar question is: Is there any development indicator that suggests that citizens or residents in Pakistan have benefited from UID version (Multi-Biometric National Identity Card project) there?
We submit that senior officials of NADRA and UIDAI like Shri Tariq Malik and Shri Nandan Manohar Nilekani have been awarded by ID WORLD International Congress, the Global Summit on Automatic Identification in Milan, Italy which is sponsored by agencies like American Bank Notes Corporation and a French biometric technology company, Morpho, Safran group’s security unit that too has got contracts from UIDAI.
We submit that Wikileaks cable reveals how the USA’s State department is interested in knowing about India’s Unique Identification program, a biometric database of the world’s largest democracy. The information sought by US authorities is available on Wikileaks website. It also appears that UNDP’s “Innovation Support for Social Protection” as part of financial surveillance plan is also linked to it.
We submit that although UIDAI claims that UID/aadhaar number scheme is for residents of India, C Rangarajan Committee on the Collection of Statistics Act reveals in Para titled ‘Centralised Database of Citizens (Population Register)’ that “A centralised database of the citizens of the country with a system of issuing a unique identification number/card has several potential benefits to its citizens and will improve the efficiency of administration. The project, if implemented, will have obvious benefits to the statistical system.”
In the UK war-time documents for identification were abolished in 1952 but in 2007, ID cards were re-introduced by Shri James Hall moved from US based biometric technology company, Accenture to become head of the UK’s Identity & Passport Service In October 2006. UK’s Shri David Cameron led government abandoned the ID project introduced by Shri Tony Blair. Shri Hall lost his job.
We submit that Shri Nilekani moved from Infosys on 9th July 2009 to serve as the chairperson of the Unique Identification Authority of India (UIDAI) and awarded a contract to Accenture Services Pvt. Ltd, Hall’s former company for the Implementation of Biometric Solution for UIDAI on 30th July, 2010. We submit that aadhaar project is part of the World Bank eTransform Initiative for “Transformational Government” launched in partnership with six transnational companies and two national governments-France and South Korea.
We submit that the most recent and alarming case of passing important and far reaching laws in the guise of Money Bill is the Finance Act 2017. The Act contains several provisions that will drastically increase “black money” and corruption. An important provision would enable political parties to receive unlimited and anonymous funding from corporate entities and from abroad, and will make electoral bonds anonymous. It is well known that political funding is probably the most important source of corruption in the country making it more opaque flies in the face of claims to greater transparency and makes matters worse than they are at present with terrible implications for electoral democracy in the future. It is also in complete contrast to the treatment meted out to voluntary organisations and civil society groups fighting for people’s rights, who are not being allowed to receive legitimate funds on dubious grounds. The Finance Act, 2017 also gives sweeping powers without accountability to the Income Tax department, which can encourage extortion at all levels.
In view of the above, we appeal to you to take cognizance of the order of Election Commission of India which is the only agency that has complied with Hon’ble Supreme Court’s orders in the matter of biometric UID/Aadhaar case in letter and spirit. The Commission revised its order dated 27 February 2015 on 13 August 2015. Its revised order reads: “All further activities relating to collection/feeding/seeding of Aadhaar Number being undertaken currently under NERPAP shall be suspended with immediate effect till further directions from the Commission. In other words, henceforth no more collection of Aadhaar Numbers from electors or feeding/seeding of collected Aadhaar data shall be done by any election authority or officials connected with the NERPAP.” (National Electoral Rolls Puriﬁcation & Authentication Programme).
We submit that this revised order of the Election Commission is a model order. It demonstrates how to comply with the Hon’ble Court’s order in letter and spirit. All the organisations and other public and private agencies which are implementing UID/Aadhaar related schemes and systems are under a legal obligation to issue similar orders. It is unbecoming of a government to be proven repeatedly wrong in the highest court of law. UID/Aadhaar and related schemes signal illegitimate advances of the state which does not wish to be limited by the Constitution.
We submit that whenever circulars and letters of central and state government agencies have been challenged and contested they have consistently withdrawn their circulars and letters.
We wish to inform you that when the issue of admitted “urgency” was mentioned before the Supreme Court’s three-judge bench of 44th Chief Justice J S Khehar, Justices N V Ramana and D Y Chandrachud on 5 January 2017 and on 27 March 2017, instead of acting as per the written request made to the Chief Justice by the 42nd Chief Justice headed Constitution Bench of “appropriate strength” this Bench refused to expedite the hearing of UID/Aadhaar cases challenging the denial of fundamental rights by the UIDAI and related schemes. The 44th Chief Justice headed bench orally observed, “We are not inclined to give immediate hearing as there are limited resources but biometric data collection by private agencies is not a great idea.”
We submit that this bench of “inappropriate strength” also posed a seemingly innocent question: “Surveillance to what. Is it a big deal?” Given the fact that none of the three judges on the bench were ever part of the earlier benches that heard the biometric identification based UID/Aadhaar case, the observation are manifestly and frighteningly inconsistent because simple judicial reasoning makes it vividly clear that surveillance based on biometric data collection by private agencies is admittedly “not a great idea”.
We wish to draw your attention towards a chapter titled “On the Map: Making Surveillance Work” under the section Revolutions in the International Monetary System in the book Silent Revolution: The International Monetary Fund 1979-1989, IMF commiserates with the lesser mortals stating that it knows that ‘surveillance’ does sound terrible. The chapter in the book, which was published by the IMF in 2001, deals with the principles and procedures of surveillance. It admits that: “Surveillance, a central pillar of IMF activities and responsibilities in the modern era, is not an easy concept to grasp.” It will have us accept that only the heads of public institutions can grasp and communicate the meaning of ‘surveillance’.
Jacob A Frenkel, an IMF official is quoted in the book. He argues that the word ‘surveillance’ should be made to sound benign. It “should give way to concepts of cooperation, partnership, and consultation; of bringing on board the rest of the world’s considerations.” This publication states, “In practice, surveillance has encapsulated all of the above notions, but at its best it has been motivated by and has itself promoted a spirit of international cooperation.”
This publication informs that the first official use of the term came in June 1974. IMF was concerned that “Few, if any countries, however, were prepared to be subjected to surveillance in that strong sense. The 1980s therefore became a decade of experimentation, in which the staff and management of the Fund constantly probed and prodded to see how far they could go in persuading countries to respond positively to Fund analysis and advice.”
This IMF publication states, “If surveillance was to have any substance, the Fund would have to develop that influence: through the power of persuasion (Fund management and staff to country authorities), through peer pressure (country to country in the forum of the Fund), and through publicity (Fund to the public). The relative merit of each of these channels was always the subject of much debate. Was publicity appropriate, or would it conflict with and even nullify the benefits of persuasion and peer pressure?”
IMF asks itself, “Did surveillance mean that the IMF was expected to be a financial Interpol, seeking out and punishing errant behavior, or should its role be more that of a faithful confidant of those entrusted with implementing macroeconomic policies around the world?” Have most public institutions in India become “a faithful confidant” of World Bank Group?
We submit that there is a revelation in the publication that IMF is concerned with the “viability of military spending” as well. IMF took a formal position on the role of military spending in national economic policy in October 1991. At that time, executive directors concluded that, “as military expenditure can have an important bearing on a member’s fiscal policy and external position, information about such expenditure may be necessary to permit a full and internally consistent assessment of the member’s economic position and policies”. If this is not an exercise in surveillance, which admittedly sounds ‘terrible’, what else is it?
We wish to draw your attention towards the book Discipline and Punish: The Birth of Prison (1975), wherein Michel Foucault observed that surveillance is based on a system of permanent registration. That it is a decisive economic operator. The old maxim, ‘if you have nothing to hide, you have nothing to fear’ has been given a very public burial. This has been thoroughly debunked. This myth is attributed to Nazi propaganda minister Joseph Goebbels. Database State, a report from the UK states, ‘In October 2007, Her Majesty’s Revenue and Customs (Department) lost two discs containing a copy of the entire child benefit database.’ Only blind faith in a Utopian State can persuade people to think that they have nothing to fear after trusting their personal sensitive information to a ‘Database State’.
We submit that authorities have failed to appreciate that “several countries including the US, the UK, Australia, China, Canada and Germany have tried such projects but aborted them midway as impractical. Biometric profiling based identification schemes like UID/Aadhaar are inherently dangerous because it tracks individuals based on their religious, behavioural and/or biological traits. History is replete with examples wherein such profiling has been used for genocide, holocaust and violence against all kinds of minorities. The promoters of biometric UID/Aadhaar Number are promoting digital caste system and digital racism. Mr Jacob Appelbaum, computer security researcher, hacker, activist, and a spokesperson for WikiLeaks has warned, biometric Aadhaar/”UID will create a digital caste system because going by the way it is now being implemented, if you choose not to be part of the system, you will be the modern-day equivalent of an outcast. In theory, you are supposed to have the freedom to choose but in reality, the choice will only be whether to be left out and left behind”.
We submit that the operation model overview for the Aadhaar authentication indicates that there is no provision to verify the written consent of any person to share biometric information. “Before implementing any biometric application, the Army must undertake a thorough legal analysis of exactly what it wants to do and where it wants to do it” concluded John D Woodward, Jr et al in Legal Assessment: Legal concerns raised by the U.S. Army’s Use of Biometrics published by RAND Corporation. This implies that besides application in defence, the civilian and defence application of biometric profiling in India also merits legal attention. As a consequence, biometric profiling for UID/aadhaar is indeed a big deal.
We submit that in the meanwhile, Secretary Department of Defence Production, Union Ministry of Defence has been asked to introduce Aadhaar enabled Biometric Attendance System in the department of defence production. The system would enable an employee with an Aadhaar number to register his/her attendance (arrival/departure) in the office through biometric authentication. It also says that a web based application software system will enable online recording of attendance and that the dash board relating to real time attendance and related statistics, can be viewed by everyone.
We submit that the proposal of application of biometric UID/Aadhaar was initially restricted to ‘civilian application’ and was not meant for defence application. Central Government’s Biometrics Standards Committee had categorically stated that UID/aadhaar’s is meant only for “civilian application” but the order on aadhaar enabled biometric attendance system has been extended to defence employees as well. The fact remains UID was first adopted by USA’s Department of Defence. It has subsequently been pushed through World Bank’s etransform Initiative in partnership with France, South Korea, Gemalto, IBM, L1, Microsoft, Intel and Pfizer. L1 was a US a company when it got a contract from UIDAI but it got purchased by French Conglomerate Safran Group after security clearance by US Government. This constitutes breach of national security as no such clearance was granted by Government of India. Some of these companies have partnership with Chinese Government as well. The entire information of the employees working in the department of defence production, which will include related statistics, will be stored online and on cloud will be available to everybody. Besides application of UID/aadhaar in the Department of defence production not being in national interest making it available to everyone and on the cloud, including to the foreign companies like Safran Group, its L1 Solutions, Accenture and Ernst & Young will violate the order of Hon’ble Court.
It is evident that the coverage of defence employees under Aadhaar enabled Biometric Attendance System does establish conclusively that it Aadhaar is being put to defence application contrary to the claim of the government. There is a logical compulsion for withdrawing the letter and all consequential letters by which UID/Aadhaar is made applicable to defence application i.e. Department of Defence Production in the interest of supreme national security.
We submit that it is possible that such civilian and non-civilian applications are being bulldozed by some commercial entities in order to store and read biometric and DNA script of Indian population in the aftermath of the sequencing of Human Genome for epigenetics, medicine, big data, social control, inheritance, eugenics and genetic determinism.
Amidst the observations by the Bench of “inappropriate strength”, the Hon’ble Supreme Court’s website continues to refer to the case as a “Five Judges Bench Matter” since October 2015 as per a written order of a five judge Constitution Bench of “appropriate strength” headed by Chief Justice which underlined that “there is some urgency in the matter”.
We seek your attention to ponder over these questions:
- Will foreign companies like Ernst & Young, Safran, L1 Identities Solution and Accenture that admittedly work with US security and intelligence agencies who were awarded contracts on 30 July, 2010 for implementation of aadhaar/UID Number protect US national interest or India’s national interest in the aftermath of Patriot Act taking cognisance of disclosures by Edward Snowden and Wikileaks?
- The manifesto titled “2083: A European Declaration of Independence” brought out by Norwegian gunman and neo-Crusader, Anders Behring Breivik who carried out the heinous attacks on his fellow citizens is actually a unique identity manifestoas well. This manifesto refers to the word “identity” over 100 times, “unique” over 40 times and “identification” over 10 times. There is reference to “state-issued identity cards”, “converts’ identity cards”, “identification card”, “fingerprints”, “DNA” etc. Is it not true that only a misanthrope can approve of it?
We submit that the aadhaar/UID project is going to do almost exactly the same thing which the predecessors of Hitler did, else how is it that Germany always had the lists of Jewish names even prior to the arrival of the Nazis? The Nazis got these lists with the help of IBM which was in the ‘census’ business that included racial census that entailed not only count the Jews but also identifying them. At the US Holocaust Museum in Washington, DC, there is an exhibit of an IBM Hollerith D-11 card sorting machine that was responsible for organising the census of 1933 that first identified the Jews. Instead of following Hon’ble Court’s orders State Governments are unthinkingly compelling Indians to get UID/Aadhaar else face civil death.
We submit that the advertising and public relations blitzkrieg unleashed by biometric identification and surveillance technology vendors have clouded the minds of judicial, political and media fraternity. The dangers of trusting such technological advances for determining social policies will consequent in a situation where “[A] warrant requirement will not make much difference to a society that, under the sway of a naive and discredited theory of genetic determinism, is willing to lock people away on the basis of their genes” among other adverse effects. We submit that this entire issue is about denial of fundamental rights by the emergence of an unlimited government.
We submit that this is open declaration of war against citizens’ sensitive personal information like biometric data by transnational entities and governments captured by them paves way for the enslavement of present and future generations through biometric UID/Aadhaar database that lies on cloud beyond Indian jurisdiction. Such initiatives must be stopped and boycotted else it will spread its tentacles in every sphere of life and mobility in the country.
We submit that you should consider inviting testimony from Shri Assange, Shri Snowden and Indian researchers, jurists and relevant current and former scientists who have put their lives at risk to tell Indian government, Indians and others that they are being spied upon by foreign governments, banks and transnational surveillance technology companies for the protection of Indians including present and future Presidents, Prime Ministers, judges, legislators and officials handling sensitive assignments.
We submit that a unanimous resolution of the West Bengal Assembly against UID/Aadhaar number passed on December 2, 2013 in supreme public interest. Pursuant to the West Bengal Assembly Resolution on UID/Aadhaar, Hon’ble West Bengal Chief Minister has issued a statement on March 4, 2017 saying, “In the name of Aadhaar, privacy is being lost and there is extortion. Why is this Govt so negative? As a nation, we must condemn this.”
In view of the above, before your tenure comes to an end, we solemnly and earnestly appeal to you to save the present and future citizens from unlimited government as a consequence of an unlimited database of Indians and anonymous financing of political parties under the Aadhaar Act, 2016 and amended Companies Act, 2013 by seeking Hon’ble Supreme Court’s opinion under Article 143(2) of the Constitution of India on the constitutionality of biometric UID/Aadhaar in supreme national interest. This Article has not been used so far but extraordinary situations create compelling logic for extraordinary patriotic steps which can set a healthy precedent for all times to come.
We will be happy to meet you as a delegation in this regard.
Thanking you in anticipation.
Dr Gopal Krishna
Member, Citizens Forum for Civil Liberties (CFCL)*
Mb: 9818089660, 08227816731
*CFCL had appeared before the Parliamentary Standing on Finance that examined and trashed the Aadhaar Bill, 2010. CFCL has authored over hundred articles on the subject of Big Data and biometric-digital profiling based identification and surveillance technologies.