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

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

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


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

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

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

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

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

Parliamentary Standing Committee’s Forty-Second Report relied on the Report of the London School of Economics (LSE)Report on UKs Identity Project inter-alia states that “…..identity systems may create a range of new and unforeseen problems……the risk of failure in the current proposals is therefore magnified to the point where the scheme should be regarded as a potential danger to the public interest and to the legal rights of individuals”. It records that “the United Kingdom shelved its Identity Cards Project for a number of reasons, which included:- (a) huge cost involved and possible cost overruns; (b) too complex; (c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs.” It states that “As these findings are very much relevant and applicable to the UID scheme, they should have been seriously considered.”

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

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

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

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

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

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

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

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