Why Aadhaar Act is a Black Law -Part VI

Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect: Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.

Indians are accustomed to getting duped by advertising and falsehoods of corporates. But when it comes to advertising by biometric and automatic identification technology companies, besides uninformed citizens almost all the political leaders are willing to trust even the most untrustworthy of claims of vendors

The marginal note for Section 57 of Aadhaar Act reads: "Act not to prevent use of Aadhaar number for other purposes under law." On 2^nd May, 2018, the 5-Judge Constitution Bench headed by Chief Justice Dipak Misra referred to Section 57 of the Aadhaar Act which says that "State or anybody corporate or person" can use Aadhaar number "for establishing identity of an individual for any purpose". The Bench observed, "The problem arises with regard to section 57 (of the Aadhaar Act). Section 57 snapped the link with section 7 and the targeted delivery of subsidies, benefits and services." The bench comprises of Justices A K Sikri, A M Khanwilkar, Dhananjay Chandrachud and Ashok Bhushan besides the Chief Justice. It further said that allowing "anybody corporate or person" to use Aadhaar for establishing the identity for any purpose "snaps the link with Consolidated Fund of India", with it demolished the argument of government contending that the Aadhaar legislation is a Money Bill because it does not meet the conditions of Article 110 (definition of Money Bill) of the Constitution. The Bench observed "there is no distribution of benefits and subsidies under section 57."

It is noteworthy that contract agreements with foreign firms like Accenture, Safran and Ernst & Young are before the Bench. One such case is also pending before the Delhi High Attorney General K K Venugopal misled the Bench when he said that issue of no contract with private entities with UIDAI is not before the Court.

In such a backdrop, among other things, will the general elections of 2019 reveal whether or not Indians are willing to be guinea pigs for biometric and automatic identification technology companies? It will disclose the identities of those political parties who take anonymous donations from such companies or are beneficiaries or their shareholders.

Biometric and automatic identification is going to impact human civilization in a far deeper way than printing press, industrial revolution, light bulb, Internet and personal computers did. The introduction of these automatic identification technologies marks the beginning of a world where everything and every place gets imbedded with such spying identifiers.

More than four years have passed since the new BJP-led government came to power but opposition parties in general and non-Congress parties in particular are yet to consolidate their considered position vis-à-vis biometric data collection in the name of e-governance initiative. It may be recalled that Nandan Nilekani, as the chairman of Unique Identification Authority of India (UIDAI) had boasted, “We have made India the tech capital of biometrics”. He has disclosed, “We felt speed was strategic. Doing, and scaling things quickly, was critical. If you move very quickly, it doesn’t give the opposition the time to consolidate.” Section 57 of the Aadhaar Act panders to the whims and fancies of beneficial owners of biometric and automatic identification technologies.

There have been occasions in history when people get afflicted with collective madness. All the state governments were conned into signing memorandum of understanding (MoU) with UIDAI before August 2010. It is inexplicable as to how state governments signed MoUs with UIDAI without realizing that it is a threat to the constitution as it erodes state’s autonomy for good. Due to paucity of information even defence employees including Chief of Naval Staff and His Holiness Dalai Lama have already enrolled for UID number, without the passage of Privacy Bill. It is incomprehensible as to who compelled chiefs of armed forces and Dalai Lama to enroll for it. It is also strange to witness the spectacle of a leader like Narendra Modi who ridiculed 12- digit biometric unique identification (UID) number becoming the most avid promoter of it.

The 48-page Report of Yashwant Sinha headed Parliamentary Standing Committee (PSC) on Finance which was submitted to both the Houses of Parliament questioned the collection of biometric information and its linkage with personal information without amendment to the Citizenship Act 1955 as well as the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003.

CIDR of UID/Aadhaar numbers and the proposed National DNA data bank projects are going to do almost exactly the same thing, which the predecessors of Adolf 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, including racial census that entailed not only counting 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. IBM has not disputed its involvement in it.

Nilekani’s book Imagining India describes the ‘Dividends of an autocracy versus a Democracy’ and contends that “In terms of implementing policies that are good for you, whether you like it or not, autocratic regimes are better than democracies”. Biometric and automatic identification technologies facilitate arrival of autocratic regimes and make them well entrenched.

As part of World Bank's Tranformational Government initiative launched in partnership with corporates, the core idea is to ensure convergence of all the residents and institutions underway through Project UID. This is a Silicon Valley initiative (dominated by Biometric technology companies) passing off as “government’s initiative” without consultation at district and panchayat level and within the political parties to create a central database of residents and generate a unique identification number for all such residents which is proposed to be “used as the basis for identifying and authenticating a person's entitlement to government services and benefits”. This initiative is being steered by the Ministry of Electronics and Information Technology. It is noteworthy that National Informatics Centre Services Inc/National Informatics Centre (NIC) is working as the technical solution provider and a consultant for “linking of existing databases, as well as providing for future additions, by the user agencies.” This entails tracking and profiling residents electronically through some 53 departments of the Government of India, 35 State/UT Secretariats and 603 District Collectorates. NIC was formed in 1975.

These initiatives are sub-sets of the universal set called Public Information Infrastructure and Innovations (PIII) for a National Knowledge Network that is being pursued by Sam Pitroda who is another Advisor to the Prime Minister in the rank of a Cabinet Minister without oath of office and secrecy. PIII reveals the plot emphasizing digital network to process all kinds of information at all levels saying, “For government, PII is very important to first identify all beneficiaries, essentially people. We also at the same time need to identify all our physical assets all over the country, like primary schools, railway stations, hospitals. Then, we also need to tag all our programmes-and government typically would have hundreds of programmes for public delivery systems. Once you tag people, places, and programmes, then it is easier to really organise information for delivering public services. Hopefully, with new focus on PIII, where we could essentially tag people, tag places, tag programmes, we will be able to structure delivery systems to get a lot better in terms of productivity, efficiency and reduced cost.  The starting point for this nationwide network of fibre optics, wireless systems to connect 2.50 lakh Panchayats all over the country, especially in rural areas, where ultimately, information data gathering would begin. This is where beneficiaries are.”

 All this information will be in the hands of a few ‘trustworthy’ people in the government and few select ‘patriotic’ corporates. Such a situation is fraught with both unintended and intended consequences impacting monetary and non-monetary aspects of citizens’ life. It may be noted that the Land Titling Bill also makes a provision for linking UID Number with property.

The gullibility of the Congress and non-Congress parties to these initiatives is intriguing given the fact that Government has admitted, “There is no data protection statute in the country.”

On 10 October 2013, Nilekani told people of Bangalore’s Koramangala, his political constituency for 2014 elections: “See, the legislative sanction is not for Aadhaar. The government has ample legal opinion to say that they can do Aadhaar without legislative backing. The purpose of the law is to create a regulatory agency to manage the use of it and to manage penalties and fees […] It’s a common thing for the government to start an activity, and then pass a law because…Parliament and all that, so there’s nothing that prevents us from doing this, except that in the long run we want a regulatory status for autonomy purposes and to manage this whole thing. So the law will come.” It implied that it is common for the government to put the cart before the horse as if laws are instruments to legalize any institution and activity after sufficient investments have been made. In a presentation given by Nilekani to the Parliamentary Standing Committee on Finance on 4 August 2010 even before the Aadhaar Bill was referred to it in December 2010. When it became apparent for the Government that Supreme Court is likely to issue an adverse order on 22^nd October, 2013 after the Court refused to modify its 23^rd September order on 8^th October, 2013 on the application of the government, the Union Cabinet approved a Bill on that very day to give statutory status to the UIDAI which provides biometric identifier numbers. It is another matter that the Bill got finally passed in 2016.

Nilekani’s ministerial statement about ‘Parliament and all that’ makes a mockery of Parliament, which has been subjugated by keeping Secretary Generals of both Rajya Sabha and Lok Sabha on contract.

Most political parties including BJP and Congress feign to be deaf when it is admitted by Nilekani that “biometrics as a tool of surveillance”. He says, “So, like, you go to America today, you land at JFK airport and they take your fingerprint and your [iris scan]…and they do some…funny thing with it. So they have looked at biometrics as a tool of surveillance and…and all that. In our case, we said, let us use this technology in a very different way. We’ll use this technology to give a unique identity to everyone. And that is what we do.”

Admittedly, the biometric tool is for surveillance but the gullible seem to believe even what is unbelievable-it is for delivery of identity proof and social entitlements. Although Indians are accustomed to advertising and falsehoods purveyed by them but when it comes to advertising by biometric technology companies uninformed citizens and the non-Congress and non-BJP leaders are willing to trust even the most untrustworthy of claims. Nilekani, the vendor, has been on record for stating that success or failure of biometric identifier is dependent on marketing alone.

Both 15^th and 16^th Lok Sabha witnessed the wanton autocracy of the ruling parties. In her address to both Houses of Parliament, the President disclosed, “The Unique Identity Card scheme for each citizen will be implemented in three years overseen by an Empowered Group. This would serve the purpose of identification for development programmes and security” on 4 June 2009.  The President disclosed that UID/Aadhaar is meant for “security” purpose. It is something, which was not disclosed earlier. The President also revealed that this is meant for “each citizen” even as the Government misled saying that it is meant only for usual residents. In an illustration of how ignorance rules the roost even the President has not been informed that UID/Aadhaar is a biometric identifier number and not a card. By now it is clear that the Empowered Group of Ministers (EGoM) that supervised UID initiative has attempted to make legislatures irrelevant and powerless in due course. This trend has continued in the post 2014 period as well. 

On 21 February 2013, in his address to both the Houses of Parliament, Pranab Mukherjee, the President said, “An important initiative that my Government has taken recently is the rollout of the Direct Benefits Transfer system. This would enable Government sponsored benefits such as scholarships, pensions and maternity benefits to flow directly into the accounts of beneficiaries, who can access them using their Aadhaar number. In due course, the Direct Benefits Transfer System will also cover wages and subsidies on food and LPG. This system will help cut down leakages, bring millions of people into the financial system and lead to better targeting of beneficiaries. It will be a trend-setter in the use of modern technology to bring benefits to our poorest citizens, especially in rural areas. However, the Direct Benefits Transfer System will not be a substitute for public services and will be complementary to the Public Distribution System.” Despite such assurance illegitimate initiatives are having a field day.  

It appears that both BJP and Congress has become a marketing wing of ‘foreign’ biometric technology companies? How does one explain the ID Limelight Award given to Nilekani at the ID WORLD International Congress, 2010 in Milan, Italy on 16 November 2010 during the Conference sponsored by AB Notes, the key sponsor of the ID Congress and Safran Morpho (Safran group), a French multinational corporation? The award was given within less than one month of the launch of biometric UID/Aadhaar number by Sonia Gandhi and Manmohan Singh on 29 September 2010. Nilekani joined UIDAI in July 2009 and got the award within 14 months. What miracle did he perform in such short span? How will the Congress party justify the contract awarded by Nilekani to Safran’s subsidiary, Sagem Morpho Security Pvt Ltd for the purchase of Biometric Authentication Devices on 2 February 2011 after getting the ID Limelight award from them? How will BJP led government justify its endorsement and promotion of Nilekani’s cause which he has been pursuing at the behest of beneficial owners of biometric and automatic identification technologies.

Parties who seek votes in 2019 must be made to declare that they will abandon biometric data collection the way it has been done in UK, US, France, China and Australia. There is a compelling logic for the voters to reject those parties, which implicitly or explicitly support tracking, profiling, databasing and mortgaging of citizens’ rights and their sovereignty under the dictates of their donors and non-state actors.    

Now that Supreme Court is all set to pass a landmark ruling on the constitutionality of Aadhaar Act, legality of UIDAI and its demographic and biometric data collection, all the parties have a national duty to ensure that biometric data collection related programs by government and private entities are stopped. Parties are under a logical compulsion to articulate their position on Section 57 of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 which conclusively establishes that the law in question is a black law.