#India – Threat of exclusion, and of surveillance #UID #Aadhaar


Uid- I am not a criminal

The aadhaar project has become the bane of average Indians, threatening their access to all manner of services. basic questions have sometimes been asked and almost never been answered, says
Usha Ramanathan, in the first of a multi-part series.

The Unique Identity (UID) project has been around for over four years. The Unique Identification Authority of India (UIDAI) was set up by an executive notification dated 28 January 2009 and came into its own after Mr Nandan Nilekani was appointed as chairperson in July 2009. Now it has, as some observers say, become an experiment being conducted on the entire  country.
In its early stages, it was marketed, simply, as giving the poor and the undocumented an identity. It was to be voluntary, and an entitlement. But, it is evident even from the Strategy Overview document of the UIDAI that it was never intended to be an entitlement that people may choose to adopt or ignore. That document said that “enrolment will not be mandated”, but went on to add: “This will not, however, preclude governments or registrars from mandating enrolment”. So, the potential for compulsion was built into the architecture of the project. Starting in 2012, voluntariness began to be eroded, and threats of exclusion from services and entitlements began to be bandied about. By January 2013, a virtual panic was set off when it was announced that various services and entitlements would not be accessible to persons who did not have a UID number.
Mr Nilekani has said time and again that half the population is expected to be enrolled by the end of 2014; yet, there have been warnings that people without a UID number may find themselves unable to access benefits and subsidies if they did not have it, if a bank account had not been opened, and if the UID number were not embedded in the bank account. So, subsidy for cooking gas, kerosene, and scholarships, for instance, became dependent on having a bank account seeded with the UID, or aadhaar, number. In case anyone wonders what the UIDAI has to do with these decisions, it is the chairperson of the UIDAI, Mr Nilekani, who chaired the committees that recommended these changes. The reports are in the public domain.
From its inception, the UID project has been about creating the ‘database resident’. The website of the Department of Information Technology, which has been renamed as Department of Electronics and Information Technology, modestly carrying the acronym DeitY, has said all along that “Project UID, a Planning Commission initiative, proposes to create a central database of residents, initially of those above the age of 18 years”. Except, that the UIDAI got more ambitious and wanted everyone, from the newborn to the oldest resident, on its database. And it was always intended to converge various databases to construct a profile of the individual, and to this effect the website of DeitY says that “the project envisages provision of linking of existing databases, as well as providing for future additions, by the user agencies”. The MoUs between the UIDAI and various registrars that include the state governments, oil companies, banks and the Registrar-General of India, who is in charge of census and the National Population Register and socio-economic and caste census, not only provide for various additional fields of data being collected during enrolment, but also for having the UID number appended to each such database.
As for biometrics, documents reveal that when the decision was made to use fingerprints and iris for enrolment, there was no knowledge about whether these biometrics would work in India, given the demographic and environmental conditions. In fact, it has since been found that with age the fingerprint fades, that manual labour makes the fingerprint difficult to read, that malnourishment-induced cataract blights an estimated 8-10 million people, and so on. In fact, as recently as 23 April 2013, Mr Nilekani said in his speech at the Centre for Global Development in Washington: “We came to the conclusion that if we take sufficient data, biometric data of an individual, then that person’s biometric will be unique across a billion people. Now we have to find that out. We haven’t done it yet. So we’ll discover it as we go along.” First, the conclusion. Then they will wait to find out! That is why some observers of the project have been saying that it is an experiment being conducted on the entire population. The consequences of failure have not been discussed, although, in a talk at the World Bank in Washington on 24 April 2013, Mr Nilekani said in response to a question about what he thought was the greatest downside risk to the UID: “To answer the question about what is the biggest risk,” he said “in some sense, you run the risk of creating a single point of failure also.”
There is more to cause concern, and much to be answered about UID.
(The writer is an academic activist. She has researched the UID and its ramifications since 2009.)
LEGALITY
The UID project is proceeding without the cover of law. There is only the notification of January 2009 which says the UIDAI “owns” the database, but which says nothing about how it may be used, or what will happen if it fails or if there is identity fraud, or some outside agency gains access to the database. A Bill was introduced in Parliament in December 2010, after the project had been launched and data collection had begun. The Bill collapsed in December 2011 when the Parliamentary Standing Committee found it severely defective, and after it found that the Bill and the project needed to be sent back to the drawing board. There is no sign yet of a Bill, and any protection that the law may offer is non-existent. There is no law to protect privacy either.
Convergence and snooping
The UIDAI, and Mr Nilekani, have refused to address the probability of surveillance, convergence, tracking, profiling, tagging and intrusions into privacy that is likely to result from the creation of the database of residents and the intended convergence. The link between technology, databases, governmental power and corporate involvement in creating, maintaining, managing and using databases has produced various scenarios of surveillance that we ignore at our peril. PRISM is such a stark demonstration of the ambitions that can fuel a state that the UIDAI can no longer just say `no comment’ when asked about the surveillance potential being created.
In the same period, the state has already set up agencies such as the Natgrid, NCTC, NTRO, CCTNS, MAC which will use the potential for convergence of databases that the UID makes possible. In April 2011, the government made rules under the IT Act 2000, by which it would be able to access any data held by any “body corporate”. More recently, we have been hearing about the CMS, or the Central Monitoring System, speaking to a surveillance and control approach that will have the state snooping on us with no oversight, no prior permission, no answerability at any time to anyone.
The companies engaged by the UIDAI to manage the database include L1 Identity Solutions and Accenture. The UIDAI, in response to an RTI request, has claimed that they have no means of knowing that these are foreign companies, given the process of their selection! Yet, a search on the internet reveals the closeness between the L1 Identity Solutions and the CIA, and that after a recent transaction, it is part-owned by the French government; while Accenture is in a Smart Borders Project with the US Department of Homeland Security. Data security, personal security, national security and global surveillance are all drawn into a ring of concern, but remain unaddressed.

 

Odisha opposes construction of Polavaram dam in Andhra Pradesh


Odisha Government asks Planning Commission not to grant revised investment clearance to the controversial multi-purpose project

The site where the proposed dam will be built in Polavaram. File PhotoThe site where the proposed dam will be built in. File Photo

Bhubaneswar, Jun 1 (PTI): Strongly opposing construction of Polavaram dam in neighbouring  government today asked the Planning Commission of India not to grant revised investment clearance to the controversial multi-purpose project.

“As the matter is sub judice in the Apex Court, it will be prudent to wait till the judgement is given as the project parameter and estimates may change,” Chief Minister Naveen Patnaik wrote to Planning Commission deputy chairman Montek Singh Ahluwalia.

Stating that the Odisha government has filed a suit in the Supreme Court challenging the Ministry of Environment and Forest’s environmental clearance, Patnaik pointed out that the state administration also opposed to the R&R (rehabilitation and resettlement) clearance accorded by the Ministry of Tribal Affairs (MOTA).

“The state government has prayed the apex court to declare both the clearance null and void,” the Chief Minister said.

Patnaik also said that no public hearing was conducted in the affected Malkangiri district of Odisha.

“Instead, the public hearing was conducted in Khammam district of Andhra Pradesh,” he said adding that the environmental clearance granted by the MoEF in favour of Polavaram project was set aside by the National Environment Appellate Authority (NEAA).

The NEAA also directed to conduct public hearing in the affected areas of Odisha and Chhattishgarh, the Chief Minister said in the letter to to Planning Commission.

However, the orders of NEAA were challenged by the government of Andhra Pradesh in the Andhra Pradesh High Court.

The AP High Court has issued an interim order on 31 December 2007 suspending the orders of the NEAA until further order.

 

 

#Aadhaar #UID Your data, going on sale soon #MUSTSHARE


USHA RAMANATHAN, The Hindu 

  • ILLUSTRATION: SATWIK GADE
  • ILLUSTRATION: SATWIK GADE
  • ILLUSTRATION: SATWIK GADE
    ILLUSTRATION: SATWIK GADE

Information being collected for the unique identification project will be sold back to the government through specially created, privatised, for profit utilities

Technology has created the potential to record, collate, converge, retrieve, mine, share, profile and otherwise conjure with data. Data is the new property. The Unique Identification Authority of India (UIDAI), with its push to enrol the whole Indian resident population, signals the emergence of an information infrastructure facilitated by the government — it finances the “start up,” and uses its authority to coerce people to get on to the database, and then handed over to corporate interests when it reaches a “steady state.”

 

Allowing private entry

 

The UIDAI was set up by an executive notification dated January 28, 2009. The Planning Commission was the nodal agency “for providing logistics, planning and budgetary support” and to “provide initial office and IT infrastructure.” As part of its “role and responsibilities,” the UIDAI was to “issue necessary instructions to agencies that undertake creation of databases, to ensure standardisation of data elements that are collected and digitised and enable collation and correlation with UID [Unique Identification Number/Aadhaar] and its partner databases.” It was to “take necessary steps to ensure collation of NPR [National Population Register] with UID”. And, the UIDAI “shall own and operate” the UID database.

 

When the state holds data it collects in its transactions with its residents, it holds the data in a fiduciary capacity. It does not own the data.

 

The framework for ownership of data was set out by the Nandan Nilekani-chaired Technology Advisory Group for Unique Projects (TAG-UP), which gave its report in January 2011. While the Nilekani committee directly addressed five projects — Goods and Services Tax Network, Tax Information Network, Expenditure Information Network, National Treasury Management Agency and the New Pension System — it recommended that the suggested framework “be more generally applicable to the complex IT-intensive systems which are increasingly coming to prominence in the craft of Indian public administration.”

 

As understood by TAG-UP, the government has two major tasks: policymaking and implementation. Implementation is weak, and rather than spend time finding correctives, the committee found in this an opportunity for private business interests. So, TAG-UP suggested the setting up of National Information Utilities (NIUs).

 

“NIUs would be private companies with a public purpose: profit-making, not profit maximising.” The government would have “strategic control,” that is, it would be focused on how it would achieve the objectives and outcomes, leaving the NIU “flexible” in its functioning. Total private ownership should be at least 51 per cent. The government should have at least 26 per cent shares. Once it reaches steady state, the government would be a “paying customer.” As a paying customer, “the government would be free to take its business to another NIU”; though, given the “large upfront sunk-cost, economies of scale, and network externalities from a surrounding ecosystem (and what this means is not explained any further), NIUs are … essentially set up as natural monopolies.” To get a buy-in from the bureaucracy, “in-service officers” are to be deployed in the NIUs and are to be given an allowance of 30 per cent of their remuneration.

 

Government as customer

 

“Once the rollout is completed,” the Nilekani committee blithely states, “the government’s role shifts to that of a customer.”

 

In sum, what emerges from the TAG-UP report is this: governmental data and databases are to be privatised through the creation of NIUs which will then “own” the data. NIUs will be natural monopolies. NIUs will use the data and the database for profit-making and not profit-maximising, and the definition of these terms are indeterminate.

 

Government will support the NIUs through funding them till they reach a steady state, and by doing what is needed to gather the data and create the database using governmental authority. Once the NIU reaches steady state, the government will reappear as the customer of the NIU. Government officers will be deployed in NIUs and be paid 30 per cent over their salaries, which, even if the report does not say it explicitly, is expected to forge loyalties and vested interests. The notion of holding citizens’ data in a fiduciary capacity cedes place to the vesting of ownership over citizens’ data in an entity which will then have the government as their customer.

 

This notion of private companies owning our data has not been discussed with state governments, nor with people from whom information is being collected.

 

Unexplained

 

We might have treated the TAG-UP report as another report without a future; except, in the Budget presented by Mr. Pranab Mukherjee as Finance Minister in March 2012, he announced that the “GSTN (Goods and Sales Tax Network) will be set up as a National Information Utility.” The NIU was not explained to Parliament, and no one seems to have raised any questions about what it is.

 

There is disturbing evidence that the UIDAI provided the basis for the NIU. The report is littered with references to the UIDAI, and suggests that the way the UIDAI has been functioning is a model for the NIU. The Biometrics Standards Committee set up by the UIDAI in September 2009 and which gave its report in December 2009 declared that the UIDAI intended to “create a platform to first collect identity details of residents, and subsequently perform identity authentication services that can be used by government and commercial service providers.” The “UIDAI Strategy Overview,” in April 2010, estimated that it would generate Rs.288.15 crore in annual revenue through address and biometric authentication once it reaches a steady state, where authentication services for new mobile connections, PAN cards, gas connections, passports, LIC policies, credit cards, bank accounts and airline check-in, would net this profit. Till then, it is to be funded by the government. Once that stage is reached, it will be a private, profit-making entity and the government, like other commercial service providers, will become its customer.

 

Data for a price

 

Mr. Nilekani calls it “open architecture”; that is, applications can be thought up as the business grows; there are no limits or contours within which it should be used. He has repeatedly described the UID as a unique number, which will be universal and ubiquitous; the latter two indicate that, despite being marketed as voluntary, all activities and services are intended to be made dependent on the UID for all persons, ensuring steady business for the enterprise. The UID enrolment form has a column for “information sharing consent.” This will allow the UIDAI to part with the data, both demographic and biometric, for a price. This explains why there has been so little enthusiasm for a law on the subject. A Bill was introduced in Parliament close to two years after the project was started. When the Parliamentary Standing Committee rejected the Bill and the project in December 2011, the law was consigned to oblivion.

 

The UIDAI will be a business entity, governed by the Companies Act; not bound by a law that will recognise the fiduciary role of the state, and which will facilitate, and not penalise, a citizen for not having an identity document or number.

 

The 2009 notification that set up the UIDAI says that the UIDAI is to “take necessary steps to ensure collation of NPR with UID.” Registering in the NPR is compulsory under the Citizenship Act and the Citizenship Rules of 2003. Although biometrics is not within the mandate of the NPR, they have also been collected in the process of building up the NPR database. So, the data mandated to be given to the NPR is being handed over to the UIDAI to become the property of the UIDAI, and we don’t even know it!

 

(Usha Ramanathan is an independent law researcher and has been following the policy and practices of the UIDAI since 2009.)

 

 

#India – #Aadhaar private ownership of UID data – Part II


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USHA RAMANATHAN | 30/04/2013 , Moneylife.com

 

Those enrolling on the UID database have not been informed that their data is to yield profit for the UIDAI, Rs288.15 crore a year and its only investor, the government, does not even own the data. How many in the government are even aware of this investing of ownership in an entity that continues to remain deliberately undefined and opaque

The Unique Identification Authority of India (UIDAI) was set up by an executivenotification dated 28 January 2009. As per the notification, the Planning Commission was to be the nodal agency “for providing logistics, planning and budgetary support” and to “provide initial office and IT infrastructure”. As part of its “role and responsibilities”, the UIDAI was to “issue necessary instructions to agencies that undertake creation ofdatabases, to ensure standardisation of data elements that are collected and digitised and enable collation and correlation with UID and its partner databases”. It was to “take necessary steps to ensure collation of the National Population Register (NPR) with the UID”. And, the UIDAI “shall own and operate” the UID database.

 

In July 2009, Nandan Nilekani was appointed as the chairman of the UIDAI, representing a lateral entry of a person from the private sector into the government, with the rank of a Cabinet minister.

 

The UID project proceeded without a law, despite the seriousness of privacy and security concerns till, caving in to public pressure, a draft Bill was prepared by the UIDAI in June 2010; and it was not till December 2010, after the project had begun to collect resident data, that this Bill was introduced in Parliament. The Bill stayed close to the framework for corporate control over databases that was later enunciated in the report of Technology Advisory Group on Unique Projects (TAG-UP) of which Mr Nilekani was the chair, and which gave its report in January 2011.

 

The Bill to give statutory status to the UIDAI was roundly rejected by the Parliamentary Standing Committee on Finance in December 2011. The Parliamentary Committee recommended that both the Bill and the UID project be sent back to the drawing board. There has been no effort since to reintroduce the Bill. Every time the UIDAI is confronted with questions about the legality of its enterprise, its officers assert that the executive order of 28 January 2009 is the legal instrument from which they derive their authority; and that order makes them the ‘owner’ of the database.

 

In the context of the UID project:

• Residents from whom the data is being collected have not been informed that the government is not the owner of the data, or of the database; nor what the legal status of the ownership by the UIDAI will mean for the citizen/resident;

• the UIDAI set up a Biometrics Standards Committee in September 2009, which gave its report in December 2009. Its report reveals that the UIDAI intended to “create a platformto first collect identity details of residents, and subsequently perform identity authentication services that can be used by government and commercial service providers”;

• the “UIDAI Strategy Overview”, in April 2010, estimated that it would generate Rs288.15 crore annual revenue through address and biometric authentication once it reaches steady state, where authentication services for new mobile connections, PAN cards, gas connections, passports, LIC policies, credit cards, bank accounts, airline check-in, would net this profit. Those enrolling on the UID database have not been informed that their data is to be yield profit for the UIDAI; they were perhaps expected to read up from the UIDAI website.

• as set out in the TAG-UP report, the data we think we are giving to the government is to end up on the database of what will be in the nature of a private company once it reaches steady state. When it is still a start-up, and till it reaches steady state at least, it will be funded by the government. After that, the government, like other commercial service providers, will become the customer of the UIDAI;

• with the UIDAI owning the database, the column in the UIDAI enrolment form for “information sharing consent” acquires a new significance. The UIDAI has all along been claiming that it will only be providing authentication by saying ‘yes’ or ‘no’, and nothing more. But, when the consent to share information is recorded on the database as having been given, the UIDAI may give all data on their database to any “service provider”, a term of wide and undefined import. That is, it is not only authentication services that the UIDAI will provide; through this consent, it is also assuming the authority to make money on thedata that it holds, both demographic and biometric. This will provide it one more avenue to find customers, and one more product to market. Mr Nilekani often refers to the UIDdatabase as “open architecture”, and avows that a wide array of applications can be built on it;

• the claim that enrolment is voluntary has rung hollow for some time now. For one thing, the UIDAI plainly has no authority to compel anyone to enrol or to use their service. However, the UIDAI has been hard at work urging governments, banks, oil companies and other institutions to adopt the UID, to re-engineer their databases to fit the UID and to seed all their systems with the UID. The push is for ubiquity. The UIDAI has been complicit in the coercion and bullying that is now part of the UID enrolment process, and its silent acquiescence while people are threatened with exclusion from services and benefits if they have not enrolled, for a UID is one dimension of complicity. It is easy to understand why this is happening, for, as critics have observed, the services, and the people, have little to gain from the UID, while the UIDAI finds compulsion an easy way to expand their database;

• the non-existence of a law that says where the liability will lie in the event of identity fraud, or failure of the system of authentication resulting in denial of services, for instance, places the burden on the individual with no responsibility on the UIDAI for the consequences of the failures of fraud;

• while ubiquity of the UID would be a recipe for tracking, profiling, tagging, converging ofdatabases and result in violations of privacy in which ways that could threaten personal security, this would become a mere incidence of the business, leaving the resident/citizen unprotected;

• the 2009 notification that set up the UIDAI says that the UIDAI is to “take necessary steps to ensure collation of the NPR (National Population Register) with the UID”. Registering in the NPR is compulsory under the Citizenship Act and the Citizenship Rules of 2003. Although biometrics is not within the mandate of the NPR, they have also been collected in the process of building up the NPR database. Therefore, the data mandated to be given to the NPR is being handed over to the UIDAI to be ‘owned’ by the UIDAI!

 

I wonder how many in government are even aware of this investing of ownership in an entity that continues to remain deliberately undefined and opaque.

 

References

  • • Notification No. A-43011/02/2009-Admn.I dated 28 January, 2009 published in Part I, section 2 of the Gazette of India
  • • UIDAI Strategy Overview: Creating a Unique Identity Number for Every Resident in India, UIDAI, Planning Commission, GoI, April 2010
  • • Standing Committee on Finance (2011-12), National Identification Authority of India Bill 2010, Forty-second Report, Lok Sabha Secretariat, December 2011
  • • Report of the Technology Advisory Group for Unique Projects, Ministry of Finance, January 31, 2011
  • • Biometrics Design Standards for UID Applications, prepared by the UIDAI Committee on Biometrics, December 2009.

 

 

 

Plea against Aadhaar, Delhi HC asks govt to respond #UID


Apr 10, 2013

New Delhi: Delhi High Court today asked the city government to respond to a plea seeking quashing of its executive orders that made Unique Identification Authority of India (UIDAI) or ‘Aadhaar’ compulsory for availing various public services here. Justice Rajiv Shakdher issued the notice to the Delhi government on a plea of Ashutosh Chandola that Aadhaar card, which was made optional by the Planning Commission, has now been made mandatory for availing benefits and public services in the national capital.

“Issue a writ in the nature of certiorari to quash executive orders…passed by the Delhi Government vide which Aadhaar has been mandatory for availing all public services from the Government of NCT of Delhi,” the petition said. It also said a direction be given to the government to accept other identity and address proofs such as voter I-Card, passport and other documents, prescribed by the Central Motor Vehicles Rules, for availing public services in Delhi.

The plea claimed that the Aadhar which is supposed to be optional has been made compulsory. AFP.

The plea claimed that the Aadhar which is supposed to be optional has been made compulsory. AFP.

“The entire (Aadhaar) project (of Planning Commission) is meant to be voluntary in nature and this is reflected in the Aadhaar enrolment form which clearly mentions that the Aadhaar enrolment is free and voluntary,” it said.

The project was launched to empower the poor, who lack ID proofs, in accessing various welfare and other services. The Government, however, issued executive orders and made Aadhaar mandatory for obtaining various certificates relating to “caste, domicile, income, death and birth.” Aadhaar has also been made necessary for registration of various documents relating to property, will and marriages, the petition said. It said the constitutional validity of UIDAI has been challenged in the Supreme Court and till the case is decided, “the burden of obtaining an Aadhaar should not be made mandatory on the public for availing public services.”

PTI

 

#Mumbai – Illegal permission granted to a jain community to generate #aadhaar cards. #UID


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RTI-INDIA TEAM,
Recently, on 6th of March’13, we came to know that the Shri xxxxxxx (ParelMumbai) had organized an unauthorized / illegal Aadhaar enrollment center in Parel .Since they claimed to our local residents that they had taken a special permission from the concerned departments, for this enrollment for their Jain community only, which was opened up to 2230 hrs, so some local residents got suspicious about their moves, after proper investigation we found out that they were charging Rs.200/- per head for the same, when approached and demanded the permission letter, they were not in a position to produce, so we had to inform the police authorities, who arrived and seized their gadgets/ deleted all the data and registered a complaint against them.
The UIDAI had launched this Aadhaar program to provide a unique ID number to all citizen of India, where this enrollment is free of cost, this is totally against the law under the Planning Commission, Govt. of India.
Sirs, if such unauthorized organization are given powers as the Planning Commission Dept or their nominated agencies,surely there will be duplications and fake identities.
Appreciate, if our crusaders can guide me to get this incident noticed to proper departments through your valuable support.
Await for your favorable response to ahead with this matter.
Pleased to hear.
Rgds / Arnold Lobo
Member of RTI – INDIA

source- http://www.rtiindia.org/forum/110810-illegal-permission-granted-jain-community-parel-mumbai-generate-aadhaar-cards.html

 

 

 

#India – Why is the UPA Reluctant to debate and Legislate ? #UID #Aadhaar


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By- Politically Incorrect at  http://centreright.in/

What is so wrong about the UID project? It isn’t like the Government is asking for details that are not publicly available or which we haven’t furnished to tax authorities or for getting a driving license. In these days of social media where all our details are there for everyone to see, don’t you think we are being unnecessarily suspicious of a project which merely seeks to create an identity database?“…

This is the standard reaction whenever anyone questions the legitimacy of the UID project. And the problem is most people; even the educated ones find these questions fair enough to not probe the issue any further. They draw a sense of security from the fact that these details are sought, not by a private player who wants to pester you with constant calls about insurance plans or housing loans, but by the Government.

Despite all the scams and scandals that have plagued the UPA regime, people do not seem to be asking a few basic questions:

  1. I don’t care what you need my details for, but what is your power to ask for these details? Quo Warranto?
  2. Why are these details being sought through a simple notification? Why is there no legislation to govern this exercise?
  3. Assuming I am satisfied that you have the power to seek the information through a notification, what use will the information be put to? Is the use/objective a specific one, or is it as vague as it gets?
  4. Is there enough co-relation between the amount of information sought and the objective it is sought for?
  5. Are the means for collection of the information reasonably fool-proof? Or are you relying on hearsay to verify/authenticate my details?
  6. Is the technology used to verify my identity, robust enough to distinguish between me and an inanimate object?
  7. How are you going to keep the information safe? Do you have enough technological and legislative safeguards to protect my privacy?

Before I proceed to address some of these issues, here’s bit of history on the UID project. The concept of national identification is not the brainchild of the UPA. This was conceived of by and under the NDA regime, and was christened the Multipurpose National Identity Card (MNIC) scheme as part of the BJP’s IT vision. The BJP’s proposed method was to amend the Citizenship Act to make it mandatory for citizens to have the ID card as proof of citizenship.

Clearly the object was to stem the rot of illegal immigration into the country and prevent the creation of a lebensraum. Little did the BJP realize that the very same project would be employed by the UPA to further the cause of illegal immigration and consolidation of vote banks? How exactly does the UID aid this patently anti-national agenda will be discussed, among other things, as part of this series of posts.

Based on the material available publicly, it appears that once the UPA smelled yet another opportunity to increase the numbers of its most pampered vote bank, it went about the issue of national identification in the most surreptitious way possible, which only the UPA is capable of.

In stark contrast to the BJP’s proposal to amend the Citizenship Act to provide for a national identification scheme, the UPA chose to constitute an executive body called the Unique Identification Authority of India (UIDAI) without mooting a legislation or debate. To lend respectability to the UIDAI, Mr.Nandan Nilekani was appointed as the Chairman of the UIDAI (who will probably be the fall guy if things go wrong with the UIDAI, which I expect them to.)

The UIDAI was expected to function as an extension of the Planning Commission, and was charged with the duty of drawing up policies and plans for the UID scheme, implementing the scheme and was to “own and operate the UID database and be responsible for its updating and maintenance on an ongoing basis“.

The question is why was the executive route opted for without a thought being spared for parliamentary processes which ought to be the option of first choice on topics which have serious implications for privacy, demographics and consequently national security?

When the same question was put to the Ministry of Planning by the Parliamentary Standing Committee chaired by Shri Yashwant Sinha, following was the response from the Ministry:

“Based on the proposal that formation of the UIDAI under the Planning Commission would ensure better coordination with different departments, it was decided that initially the UIDAI may be notified as an executive authority under the Planning Commission and the issue of investing the UIDAI with statutory authority and the reconciliation of such statutory role with National Registration Authority (NRA) can be considered at an appropriate time.”

What on earth is this supposed to mean? Are considerations, such as ease of administration and coordination, supposed to prevail over fundamentals such as the need for legislative approval and statutory safeguards to protect identities of the citizens?

What surprises me is the sequence of events:

  1. The UIDAI is constituted on January 28, 2009 under the stewardship of Nandan Nilekani, and the process of issuing “Aadhaar” numbers/Unique ID numbers was kick-started.
  2. In December 2010, almost 2 years after the UIDAI was set up, the National Identification Authority of India Bill, 2010 (NIDAI Bill) is introduced in the Rajya Sabha.
  3. During the pendency of the Bill, Aadhaar numbers continue be issued. In fact, the scope of the activity was expanded from Below Poverty line families to include all residents and categories of individuals.

If the intention behind introducing NIDAI Bill was to seek the Parliament’s imprimatur, where was the need to continue issuing Aadhaar numbers, considering the Bill could be rejected by both houses of the Parliament? What about the taxpayers’ money that was being spent on an exercise which could ultimately be held unconstitutional by the Parliament, and hence rejected? Also, what was the legal basis for setting up of UIDAI and issuance of Aadhaar numbers?

When these questions were posed to the Ministry of Planning by Shri Yashwant Sinha, Chairman of the Parliamentary Standing Committee, the buck was passed on to the legal clearance given by the Ministry of Law and Justice through the Attorney General of India. Below is the opinion of the Attorney General:

“The competence of the Executive is not limited to take steps to implement the law proposed to be passed by Parliament. Executive Power operates independently. The Executive is not implementing the provisions of the Bill. The Authority presently functioning under the Executive Notification dated 28th January, 2009 is doing so under valid authority and there is nothing in law or otherwise which prevents the Authority from functioning under the Executive Authorisation.

The power of Executive is clear and there is no question of circumventing Parliament or the Executive becoming a substitute of Parliament. On the contrary, what is sought to be done is to achieve a seamless transition of the authority from an Executive Authority into a statutory authority.

All the expenditure which is being incurred is sanctioned by Parliament in accordance with the financial procedure set forth in the Constitution. If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued. This contingency does not arise.

The present Bill being implemented without Parliament’s approval does not set a bad precedent in the Parliamentary form of Government. On the contrary, the fact that the Authority is sought to be converted from an Executive Authority to a statutory authority; it underlines the supremacy of Parliament.”

Let’s demystify the response. The Attorney General was of the opinion that the UIDAI could legitimately function under “Executive Authorisation” without legislation. Assuming this is the correct position of the law (which I will explore in detail in the next post), where was the need to introduce the NIDAI Bill? Simply put, if the Government was of the opinion that it was well within its rights to create the UIDAI without having to approach the Parliament, then why introduce a Bill subsequently?

The opinion of the Attorney General is inherently contradictory. On one hand, he categorically states that UIDAI’s creation and functioning under “Executive Authorization” was within the bounds of the Constitution. And on the other, he states- “If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued”

How can both these views hold water simultaneously? Clearly, something is wrong somewhere and the mandarins in the Ministry of Law and Justice did not think this through.

As for the expenditure, the answer is really baffling and cryptic. What did the Attorney General mean when he said “This contingency does not arise”? Was he saying that the NIDAI Bill was so watertight that the Parliament would not reject it? What was the basis for such confidence? If he was cognizant of the possibility of the Bill being rejected, doesn’t this mean the expenditure incurred in the UIDAI’s functioning and issuance of Aadhaar numbers was a total waste, which could and ought to have been avoided?

Extracted below is the observation and recommendation of Shri Yashwant Sinha on the Bill:

13. In view of the afore-mentioned concerns and apprehensions about the UID scheme, particularly considering the contradictions and ambiguities within the Government on its implementation as well as implications, the Committee categorically convey their unacceptability of the National Identification Authority of India Bill, 2010 in its present form. The data already collected by the UIDAI may be transferred to the National Population Register (NPR), if the Government so chooses. The Committee would, thus, urge the Government to reconsider and review the UID scheme was also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament.”

 

Bombay High Court PIL regardings aftey issues and THE ORDER r #Aadhaar #UID


200 px

March 18 , 2013, Kamayani Bali Mahabal, Mumbai 

The Bombay High Court  today  directed the Unique Identification Authority of India and Central government to decide within three months  on a representation questioning the lack of safeguards in the Aadhaar card and UID . The Court  was hearing a Public Interest Litigation filed  by Vickram Krishna,  Kamayani Bali  Mahabal, Yogesh Pawar, Dr Nagarjuna G,  and Prof. R. Ramkumar ( TISS).

The Standing Committee has found the project to be “full of uncertainty in technology as the complex scheme is built upon untested, unreliable technology and several assumptions”. This is a serious concern given that the project is about fixing identity through the use of technology, especially biometrics. As early as December 2009, the Biometrics Standards Committee set up by the UIDAI had reported adversely on the error rate. Since then, neither the Proof of Concept studies nor any assessment studies done by the UIDAI have been able to affirm the possibility of maintaining accuracy as the database expands to accommodate 1.2 billion people. The estimated failure of biometrics is expected to be as high as 15 per cent.

Advocate for the peititoners, Mihir Desai, told the court, that there were severe  concerns on the issue of safety systems, privacy and security of the People. A data base of this scale of 1.2 billion people’s finger prints and iris scans has never been created. Thus the entire proposition for a population base such as India is completely untested and unproven.  The ID system inUK ID Cards’ non-duplication  was entirely scrapped. It is estimated that approximately five per cent of any population has unreadable fingerprints, either due to scars or aging or illegible prints. In the Indian environment, experience has shown that the failure to enrol is as high as 15 per cent due to the prevalence of a huge population dependent on manual labour.

One of the biggest illegalities being committed under the Aaadhaar scheme is by making it mandatory through coercive conditions. UID has always, repeatedly stated that Aadhaar is a voluntary scheme. Thus, enrolment for Aadhaar is a voluntary act. The NIAI draft Bill, which seeks to legitimatize the functioning of the first Respondent, is so worded to establish that Aadhaar is optional and not compulsory. However, in its premature implementation, in practice the scheme is gradually being made non-voluntary and mandatory. This is made worse by adoption of coercive pre-conditions by different government departments.

The Hon’ble Supreme Court of India has repeatedly upheld the right to privacy within the right to life in Article 21, and any restriction must be justified through a rational and reasonable statutory procedure. UIDAI, as it presently stands is prima facie unconstitutional for contravening the right to privacy without providing any safeguards, procedures and guidelines

Adv Mihir Desai argued that The UID was promoted as a `voluntary’ `entitlement’. Now, people are being threatened that they cannot access any services or institutions unless they are enrolled for a UID. The petition submitted stated that the enrollment for Aadhaar is working on an extremely fast pace that it has become impossible to avoid attempts at enrolment. The Petitioners submit that such mandatory, non-voluntary and coercive enrolment for Aadhaar is an affront to their to personal integrity, right to make decisions about themselves and the right to dignity all enshrined and developed as indivisible elements of the Right to Life under Article 21 of the Constitution.

Download PIL ORDER

Read thE full petition below

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

PUBLIC INTEREST LITIGATION NO.                   OF 2011

In the matter of the public interest of protecting the rights of privacy, autonomy, dignity and free and full enjoyment of life of the citizens of India, guaranteed under Articles 19 and 21 of the Indian Constitution;

AND

In the matter of non-voluntary and premature implementation of “Aadhaar” in strict breach of Article 21 of the Indian Constitution

AND

In the matter of excessive delegation of essential function without any guidelines, rules or police framework in Notification Dated 29th January 2009 creating the UIDAI

AND

In the matter of potential breaches of the right to privacy of citizens of India, through the

means of data collection, storage and sharing by the UIDAI, without any legitimate and rational nexus of improving the public welfare system

AND

In the matter of standing committee of the Parliament Report report dated 13th December 2010 rejecting the proposed National Identification Authority of India Bill, 2010

  1. Vickram Krishna,  Kamayani Bali  Mahabal, Yogesh Pawar, Dr Nagarjuna G,  and Prof. R. Ramkumar,    …Petitioners

Versus

  1. UNIQUE IDENTIFICATION AUTHORITY OF INDIA,

Planning Commission,

Government of India,

3rd Floor, Tower II,

Jeevan Bharati Building,

Connaught Circus,

New Delhi 110001

  1. Mr. A. B. Pandey.

Deputy Director General, UIDAI,

Mumbai Regional Office,

5th & 7th Floor, MTNL Building,

BD Somani Marg, Cuffe Parade,

Mumbai 400 005

2.  The Chairperson, Planning Commission of India,

Yojana Bhavan, Sansad Marg,

New Delhi.

  1. National Informatics Centre

Department of Information Technology,
Ministry of Communications and Information Technology,
A-Block, CGO Complex,

Lodhi Road, New Delhi – 110 003 India

  1. Union of India

Through the Ministry of Finance

New Delhi.

  1. Union of India

Through the Ministry of Home Affairs

New Delhi.        … RESPONDENTS

TO

THE HON’BLE CHIEF JUSTICE

AND THE OTHER HONOURABLE PUISNE

JUDGES OF THIS HON’BLE COURT

THE HUMBLE PETITION

OF THE PETITIONER ABOVENAMED

MOST RESPECTFULLY SHOWETH:

PUBLIC INTEREST LITIGATION PETITION

  1. Particulars of the cause/ order against which the Petition is made: The Petitioners are filing this public interest litigation to challenge the Notification dated 29th January 2009that created the Unique Identity Authority of India (U.I.D.A.I.), an agency established under the aegis of the Planning Commission to issue Unique Identity Numbers (UID) to every Indian citizen.
  1. The Petitioner submits that UIDAI was created through an executive fiat to enable the process of issuing UID cards across India, without any rules, procedures, or guidelines. Its further extension, universalisation and implementation across the nation remains must contingent upon both an initial success together alongwith legislative passage of the proposed National Identification Authority of India Bill, 2010 (hereinafter referred to as the NIDAI Bill). The Petitioners submit that in further developments by a report dated 13th December 2011, the Standing Committee of the Parliament has rejected the present draft of the NIDAI as not meeting the required constitutional standards.
  1. However, in complete disregard to both, UID numbers without any safeguards against the tremendous breach of privacy entrenched in the scheme as it presently stands are being issued across the country without any legislative framework. Aside from this an ostensively optional and a premature scheme is being converted into a mandatory requirement with the aid of different government agencies and state governments.
    1. PARTICULARS OF THE PETITIONERS
    2. Petitioner No. 1  is an engineer and manager by training. He is engaged with an ongoing project to understand issues around awareness of personal privacy rights across Asia. In the course of earlier globally recognised projects to develop specialised software for the profoundly disabled and communication solutions for poverty-stricken rural and urban dwellers, he has together with colleagues observed empirically that privacy concerns are palpable across different strata of society. The Petitioner submits that the present move to tag every Indian resident with unique numbers, a massive project of unknown scope and questionable possibility of success, is made increasingly dangerous as it may lead to access to personal information by third parties.
    1. Petitioner No. 2 is a human rights activist with background in  clinical psychology, journalism and law. She is an expert on gender, health and human rights and part ofvarious networks and campaigns related to these issues. She has been active in ‘Say No to UID” campaign which has disseminated much needed information about the  UID in various forums including colleges, slums and NGOs in order to generate a much wider public discussion on the subject.
    1. Petitioner No. 3 is a social work graduate from Tata Institute of Social Sciences. He has been a counsellor for two years and then crossed over into Journalism. For the past 15 years he has been a journalist with The Indian Express, rediff.com, NDTV and DNA. His forte has been reporting on issues of development and public interest.Since the launch of UID the Petitioner has been reporting on the issue through both news reports and columns against it and the regime it unleashes.
    1. Petitioner No. 4 is a social activist. She is a double post-graduate in English Literature and Sociology. She has also has a diploma in journalism. As a social worker the Petitioner has worked on issues of civic governance and ensuring that targets on sanitation, and access to basis services are met. Through her journalism work the Petitioner has also successfully exposed some of the misuse and pitfalls of the UID scheme.
    1. Respondent No. 1 is the impugned UIDAI authority which functions under an executive authority, through the impugned executive notification dated 28th January 2009. Respondent No. 2 is the regional UIDAI authority for the Mumbai Region, responsible for registering and enrollment for the UID scheme through the help of government agencies and private parties. Respondent No. 3 is the Planning Commission of India which has played a crucial role in conceiving the UID scheme and its current planning and implementation.
    1. Respondents Nos. 4– 6 are different agencies and ministries that have independently expressed concerns about duplication, lack of safeguards, excessive expenditure with the present UID scheme before the Standing Committee of the Parliament. Quoting from the report of the Standing Committee:

“The Committee regret to observe that despite the presence of serious difference of opinion within the Government on the UID scheme as illustrated below, the scheme continues to be implemented in an

    1. The Ministry of Finance (Department of Expenditure) have expressed concern that lack of coordination is leading to duplication of efforts and expenditure among at least six agencies collecting information (NPR, MGNREGS, BPL census, UIDAI, RSBY and Bank Smart Cards);
    2. 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;
    3. The National Informatics Centre (NIC) have pointed out that the issues relating to privacy and security of UID data could be better handled by storing in a Government data centre;
    4. The Ministry of Planning have expressed reservation over the merits and functioning of the UIDAI; and the necessity of collection of iris image;
    5. Involvement of several nodal appraising agencies which may work at cross-purpose; and
    6. Several Government agencies are collecting biometric(s) information in the name of different schemes.”

All the Respondents are amenable to the Writ Jurisdiction of this Hon’ble Court.

    1. DECLARATION AND UNDERTAKING OF   PETITIONERS
  1. That the present Petition is being filed in public interest. Petitioners No.1, 2 and 3 do not have any personal interest in the matter. Petitioners No. 4 to 7 have personal interest which is disclosed in para 9 above.
  1. That the entire litigation costs, including the Advocates fees and other charges are being borne by the Petitioners.
  2. That a thorough search has been conducted in the matter raised through the Petition and all the material concerning the same has been annexed to this Petition.
  3. That to the best of the Petitioners knowledge and research the issue raised was not dealt with or decided and a similar or identical petition was not filed earlier by the Petitioners.
  4. That the Petitioners have understood that in the course of hearing of this Petition the Court may require any security to be furnished towards costs or any other charges and the Petitioners shall have to comply with such requirements.
  5. In the absence of parliamentary approval, and in the light of the scathing review of the performance of the UIDAI by the Parliamentary Standing Committee on Finance, citizens are left with no alternative but to approach the Hon’ble Court to place an embargo on Aaadhaar, until it undergoes full Parliamentary scrutiny to evaluate its effectiveness and Constitutionality.
  1. The Petitioners submit that through this PIL they represent a much wider discontent with the UID scheme that has been expressed in numerous foras. A recent letter by prominent writers, lawyers, historians, and judges has argued strongly for constitutional safe guards in UID. To reproduce the content of the letter below:

“A 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 Unique Identification Authority of India (UIDAI) has resulted in very little, if any, discussion about this project and its effects and fallout. It is intended to collect demographic data about all residents in the country.

Before it goes any further, we consider it imperative that the following be done:

(i)  Do a feasibility study: There are claims made in relation to the project, about what it can do for the PDS and NREGA, for instance, which does not reflect any understanding 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.

(ii)  Do a cost-benefit analysis: It is reported that the UIDAI estimates the project will cost Rs. 45,000 Crores to the exchequer in the next four years. This does not seem to include the costs that will be incurred by the registrars, enrollers, the 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.

(iii)  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?
(iv)  The involvement of firms such as Ernst & Young and Accenture PLC raises further questions about who will have access to the data, and what that means to the people of India. The questions have been raised which have not been addressed so far, including those about:

    1. Privacy: It is only now that the Department of Personnel and Training is said to be working on a draft of a privacy law, but nothing is out for discussion,
    1. Surveillance: This technology, and the existence of the UID number, and its working, could result in increasing the potential for surveillance,
    1. Profiling,
    1. Tracking, and
    1. 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. National IDs have been abandoned in the US, Australia and the UK. 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?

This is a project that could change the status of the people in this country, with effects on our security and constitutional rights. So a consideration of all aspects of the project should be  undertaken with this in mind.

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; a public, informed debate be conducted before any such major change be brought in.

Justice V R Krishna Iyer,
Romila Thapar,
K G Kannabiran,
S R Sankaran,
Upendra Baxi,
Shohini Ghosh,
Bezwada Wilson,
Trilochan Sastry,
Jagdeep Chhokar,
Justice A P Shah,
and others.”

Till date there is no response from the Respondents to numerous such representations. Copy of the aforesaid letter is annexed hereto and marked as Exhibit A.

    1. Issues:
  1. The rejection of the UID Scheme as represented through the NIDAI Bill by the Standing Committee of the Parliament, calls for an immediate cessation of the executive scheme of UID.
  1. Aadhaar/UID scheme needs to be quashed for breach of Articles 14, 15, 19 and 21 of the Indian Constitution.
  2. The Aaadhaar numbers scheme as it stands is unconstitutional as it vests in the State immense power to monitor the activities of Indian residents and violate their fundamental right to privacy.
  3. There is no rational nexus between the collation and convergence of personal data of every citizen and the stated objective of UID, which is primarily to improve the distribution of welfare services.
  4. Given that biometrics cannot succeed in creating a unique identification, the objective of non-duplication cannot rationally be achieved by invasive means of collecting personal information, which is a grave beach of the right to privacy. Any subsequent tampering of the biometric information contained in the proposed database of personal information will result in unprecedented damage to the right to life and liberty of the affected person or persons.
  5. The technology adopted by UIDAI for the capture of biometric information ie digital fingerprint recording, is known to be insufficiently accurate to function as an identifier. An additional biometric identifier, iris scanning, has been found to be too expensive to be universally deployed. Thus the use of biometric identification to uniquely authenticate and verify the identities persons residing in India, upwards of 130 crore persons at the time of filing this petition, is unsuitable, leaving UIDAI’s proposed solution to the problem of issuing persons in India unique identity numbers infructuous and necessitating cessation of this risky, invasive and expensive project.
  6. Collection of data by outsourcing enrolment for Aadhaar has huge implications on privacy
  7. Convergence and collation of personal information in a digital form and unrestricted access to such information by the National Intelligence Grid, without any legislated and constitutional safe guards is a grave breach of the right to privacy enshrined in Article 21 of the Constitution.
  8. Should the Courts not intervene to put an embargo on Aadhaar, until it undergoes parliamentary scrutiny to evaluate its effectiveness and constitutionality?
  9. The non-mandatory nature of implementation of Aadhaar, through excessive delegation of powers to sub-registrars under the scheme has both gone beyond the voluntary nature of the scheme, and created greater potential for leakage and misuse of sensitive personal information; without any legislative safeguards.
    1. FACTS IN BRIEF CONSTITUTING THE CASE.
  1. The Unique Identity Project (the “UID”), a brainchild of the Planning Commission, was announced with the ambitious agenda of collecting and documenting biometric and other information of the entire Indian population. To this end, the Planning Commission also set up an independent authority, through an executive order of the Central Government, with the mandate of implementing the UID. UID aims at becoming the primary basis for efficient delivery of welfare schemes by converting itself into a statutory corporate body which would go by the name of the National Identification Authority (the “Authority”).
  1. Unique Identity Number is in addition to other identities and is issued to all the citizens from time to time like PAN Card, Passport, Ration Card, Driving License, BPL Cards, NREGA Card and similar cards issued by both State and Central Government. However, unlike these identities issued by the government to various citizens of India, the UID number is issued to every resident in India. It is stated that the said identity number is an option that a resident can choose to take as it would be easy to authenticate a person’s identity anywhere and thus is portable. The identity will be stored in a central database with individuals biometric and demographic data linked to a randomly generated unique number. The identity would be authenticated by querying the database. Thus, it may be seen that even a person possessing the UID or AAADHAAR card cannot authenticate his or her identity, but only those in charge of the UID database have the means and authority to authenticat the person’s identity. The 12 digit number would be assigned as UID to every resident would be integrated with biometric and demographic data of the person. Demographic data here means the details of the person that is his name, name of the father (only in case of a child below the age of five years), age, residential address, telephone number, email address, details of bank accounts.Biometric data is collection of digitized images of all the fingerprints and scanning of irises and image of the face. A copy of the application form is annexed hereto and marked as Exhibit B. Copy of the UID Strategy Overview dated April 2010 issued by Respondent No. 1 is annexed hereto and marked as Exhibit C. Copy of a detailedalternative note that critically explains the functioning of the UID titled “UID for Dummies” authored by Simi Chacko and Pratiksha Khanduri dated 12th September 2011, is attached hereto and marked as Exhibit C-1.
  1. The Petitioners submit that the twin proposals to create both a National Population Register by an amendment to the Citizenship Rules and UID, were brought into the purview of an empowered group of Ministers (EGoM) constituted on 4th December 2006. The recommendations of the EGoM for kickstarting the UID project are annexed hereto and marked as Exhibit D.
  1. Initially the UIDAI may be notified as an executive authority and investing it with statutory authority could be taken up for consideration later at an appropriate time.
    1. UIDAI may limit its activities to creation of the initial database from the electoral roll/EPIC data. UIDAI may however additionally issue instructions to agencies that undertake creation of databases to ensure standardization of data elements.
    2. UIDAI will take its own decision as to how to build the database.
    3. UIDAI would be anchored in the Planning Commission for five years after which a view would be taken as to where the UIDAI would be located within Government.
    4. Constitution of the UIDAI with a core team of 10 personnel at the central level and directed the Planning Commission to separately place a detailed proposal with the complete structure, rest of staff and organizational structure of UIDAI before the Cabinet Secretary for his consideration prior to seeking approval under normal procedure through the DoE/CCEA.
    5. Approval to the constitution of the State UIDAI Authorities simultaneously with the Central UIDAI with a core team of 3 personnel.
    6. December 2009 was given as the target date for UIDAI to be made available for usage by an initial set of authorized users.
    7. Prior to seeking approval for the complete organizational structure and full component of staff through DoE and CCEA as per existing procedure, the Cabinet Secretary should convene a meeting to finalize the detailed organizational structure, staff and other requirements.

Copy of the recommendations dated 04 November 2008 is annexed hereto and marked as Exhibit E.

  1. In pursuance of the recommendations of the Committee of Secretaries and the Empowered group of Ministers’ the Unique Identification Authority of India was constituted and notified by the Planning Commission on 28 January 2009 as an attached office under the aegis of Planning Commission with an initial core team of 115 officials. The role and responsibilities of the UIDAI was laid down in this notification. The UIDAI was given the responsibility to lay down plan and policies to implement UIDAI scheme and own and operate the UIDAI database and be responsible for its updation and maintenance on an ongoing basis. Copy of the Notification dated 28th January 2009 is annexed hereto and marked as Exhibit F. The said impugned Notification outlined the following tasks to be carried out under the UID banner:
    1. Generate and assign UID to residents
    2. Define mechanisms and processes for interlinking UID with partner databases on a continuous basis
    3. Frame policies and administrative procedures related to updation mechanism and maintenance of UID database on an ongoing basis
    4. Co-ordinate/liaise with implementation partners and user agencies as also define conflict resolution mechanisms
    5. Define usage and applicability of UID for delivery of various services
    6. Operate and manage all stages of UID lifecycle
    7. Adopt phased approach for implementation of UID specially with reference to approved timelines
    8. Take necessary steps to ensure collation of NPR with UID (as per approved strategy)
    9. Ensure ways for leveraging field level institutions appropriately such as PRIs in establishing linkages across partner agencies as well as its validation while cross linking with other designated agencies
    10. Evolve strategy for awareness and communication of UID and its usage
    11. Identify new partner/user agencies
  1. The Petitioner submits that subsequent to the notification the Government appointed Shri. Nandan M. Nilekani as Chairman of the Unique Identification Authority of India, in the rank and status of a Cabinet Minister for an initial tenure of five years. Mr. Nilekani has joined the UIDAI as its Chairman on 23 July 2009. Copy of the notification appointing Nandan M. Nilekani as chairman is annexed hereto and marked as Exhibit G.
  1. The Petitioner submits that although set up through an executive fiat, the UIDAI was always intended to be brought under the purview of a legislative scheme. In the meanwhile, an advisory council presided by the Prime Minister’s was set up on 30 July 2009. The Council is to advise the UIDAI on Programme, methodology and implementation to ensure co-ordination between Ministries/Departments, stakeholders and partners. Further, the activities of the UIDAI were to be supervised and monitored by a Cabinet Committee headed by the Honourable Prime Minister and consists of the Minister of Finance, Minister of Agriculture, Minister of Consumer Affairs, Food and Public Distribution, Minister of Home Affairs, Minister of External Affairs, Minister of Law and Justice, Minister of Communications and Information Technology, Minister of Labour and Employment, Minister of Human Resource Development, Minister of Rural Development and Panchayati Raj, Minister of Housing and Urban Poverty Alleviation and Minister of Tourism. The Deputy Chairman Planning Commission and Chairman UIDAI are special invitees.
  1. Thus it is clear that in its present form UIDAI is an executive body with no legislative authority intended at this juncture to create the systems for the long term universal implementation of UIDs pursuant to the enactment of a legislative scheme and an appropriate regulatory authority. The Petitioners submit that before the legislative scheme is enacted, the Parliament as a sovereign body, will scrutinize the “suspect” claims made by UID and the effectiveness, feasibility and constitutionality of its objectives. The Petitioners submit that the constitutionality of the UID as an executive scheme without any legislative backing is further suspect pursuant to the rejection of the NIDAI Draft Bill by the Standing Committee of the Parliament, for falling short of meeting minimum constitutional standards.
  1. The Petitioners submit that the eventual aim of the aaadhaar numbers scheme is to streamline the delivery of services to Indian residents and avoid corruption and misuse of public funds and subsidies. UIDAI claims that the UID will achieve the two following objectives:
    1. Revolution in public service delivery. By providing a clear proof of identity, Aaadhaar will empower poor and underprivileged residents in accessing services such as the formal banking system and give them the opportunity to easily avail various other services provided by the Government and the private sector. The centralised technology infrastructure of the UIDAI will enable ‘anytime, anywhere, anyhow’ authentication. Existing identity databases in India are fraught with problems of fraud and duplicate or ghost beneficiaries. To prevent these problems from seeping into the Aaadhaar database, the UIDAI plans to enrol residents into its database with proper verification of their demographic and biometric information. This will ensure that the data collected is clean from the beginning of the program. However, much of the poor and under-privileged population lack identity documents and Aaadhaar may be the first form of identification they will have access to.
    2. Overhaul internal security and assist the investigating agencies.
  1. To achieve its objective as stated above, UID has set out to undertake its main task that is of Data Collection, without the legislative passage of the NID Bill. The Petitioner submits that the creation of a national identity card or number requires the following activities:
      1. DATA COLLECTION: Information relating to the individual necessary for identification is collected and stored in a register under the supervision of a governmental authority. This may include different categories of sensitive, personal information about individuals from their health records, to bank transactions, to the number of times they may use public transport every week.
      1. DATA PROCESSING: The Authority either discloses or verifies the information in the register upon any requests regarding any individual permitted under any law; and
      2. DATA PROTECTION: The government is duty bound to protect such information.
      3. DATA DESTRUCTION: The government is duty bound to destroy such sensitive, personal information as is not absolutely needed for the functioning of a scheme of authentication of identity cards or numbers, and has been collected for that purpose, and should not be retained or used for any other purpose without the full informed consent of each and every enrollee.
  1. The main function of the Authority is to collect relevant personal details together with unique biometric information from the population and use this information as the basis for issuing unique identification numbers to the population. The unique numbers, which are referred to as aaadhaar numbers, are to be used as the basis of authentication of the identity of Indian residents seeking to avail certain services, either from the State or private parties. While authenticating the identity of a user, the proposed Authority only confirms or denies the authenticity of the number and its holder, i.e., by way of a simple ‘Yes’ or ‘No’ answer. The UIDAI has stated that the proposed authority does not propose to disclose, to a third party, any of the personal details it may have collected in order to issue the aaadhaar number. However, the Authority in a central database willstore details of all authentication requests received for a particular aaadhaar number. On analyzing these authentication requests it is possible to track the location and utilization of services by the holder of an aaadhaar number. This can create immense potential for misuse of information, leaking of personal information in the wrong hands. Apart from this, UID, in an open premise has committed itself to sharing all information collected by it with the National Intelligence Grid. Copy of a detailed scientific study by Paul Ohm titled “Broken Promises of Privacy: Responding to the surprising failure of Anonymisation” that illustrates how central identity databases facilitate the reverse audit trail of personal information is attached hereto and marked as Exhibit H.
  1. The UIDAI has conducted a so-called ‘proof of concept’ study that determined the expected rate of failure of biometric measurement as an identification method. The report is attached hereto and marked Exhibit I. An analysis of the reported figures reveals that the conclusions drawn in this report are insufficiently precise, and in fact, the incidence of so-called ‘false positives’ (persons incorrectly identified by the measuring system) will be impossibly high. A copy of this analysis by David Moss, a British engineer responsible for similar studies that showed the impossibility of the now-cancelled (at a loss of substantially over stg 800 million, approximating Rs 6,500 crores) UK ID cards system is attached as Exhibit J.
  1. The draft NIDAI Bill lays out a regulatory framework identifying the powers and responsibilities of the proposed Authority along with criminal sanctions for unauthorized disclosure of information collected by the Authority. However, the same are highly inadequate and fail to meet the minimum standards of safeguards necessary. In a legal atmosphere with no legislated right to privacy, the enforcement of weak criminal sanctions against any breach of privacy becomes difficult. Copy of the UIDAI Bill is annexed hereto and marked as Exhibit K. Copy of an article titled “A Unique Identity Bill” by Prof. Usha Ramanthan, a prominent advocate on the right to privacy in India, is annexed hereto and marked as Exhibit  L.
  1. The Petitioners submit that the UIDAI draft as it was tabled in the Parliament has been rejected by the Standing Committee by its report dated 13th December 2011, by the making the following observations:
    1. Lack of clarity
    2. Overlap between UID and NPR
    3. No statutory power to address key issues of defaulters and penalties
    4. Aadhaar will not completely eradicate the need to provide other documents for identification
    5. Estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour.
    6. It is also not clear that the UID scheme would continue beyond the coverage of 200 million of the total population, the mandate given to the UIDAI.
    7. Considering the huge database size and possibility of misuse of information has not been carefully considered.

Copy of the detailed report of the Standing Committee dated 13th December 2011 is annexed hereto and marked as Exhibit M.

    1. RIGHT TO PRIVACY
  1. The Petitioner submits that the proposal of data collection, storage and sharing as laid out above makes heavy inroads into the right to privacy and its constitutionality must be tested against the breach of the right of privacy itself enshrined under Article 21 and also for rationality and non-arbitrariness by examining the objective behind UID. The Petitioner submits that UIDAI attempts to undertake the task of collecting personal information for the entire Indian population, which constitutes a total of 1.2 billion people. The privacy implications of the same are numerous and as follows:
  1. Date Collection:
  1. Sub Registrar: UIDAI in order to expedite the collection of information has entered into MoUs with several agencies, be it Banks, Insurance Agents, other Government Departments to enrolls citizens for the UID card. Even though UIDAI , only allows for collection of non-sensitive personal information, through the decentralization and delegation of data collection, the Sub-Registrar has been provided with the freedom to ask for additional information. Thus, for example, every Aadhaar form has the option of linking your bank account with the Aadhaar number. The Petitioners submit that in many reported cases, the Banks acting as Sub-registrars, automatically link the bank accounts with the Aadhaar while registering new entrants. Some of the excessive information sought from sub-registrars includes:
    1. Resident’s name, his/her father’s name, his/her spouse’s name, names of his/her children, his/her age, residential address, his/her income, whether he/she owns any car? Whether he/she owns any scooter? Whether he/she owns any other vehicle? His/her telephone and cell phone numbers  both office and residence, his/her deposits, insurance policies, investments, the companies in which he/she has interest and other details;
    2. Similar details regarding spouse and children, linked with the Aadhaar number are collected. All these details are not collected under the Aadhaar form. However, all these particulars are mandated through the concept of ‘Know Your Customer’ from the banks by a RBI directive. When all these details of each resident is integrated, the state would be virtually accessing and intruding into the life each and every resident of India, through Dr. Usha Ramanathan’s argument on convergence of different silos of information.
  2. Excessive Delegation: By appointing several sub-registrars and empowering them with data collection and registration, sensitive personal information about citizens instead of going directly to the UIDAI data base also becomes available in a parallel format with the Sub-Registrar, who is not bound by any rules, regulations or legislative framework to protect. Copy of recent news report of theft and sale of enrolment data from private agencies in Punjab is annexed hereto and marked as Exhibit N.
  1. Data Storage in One Central Database: It further contemplates storage of that entire information in one central data base. The Respondents also claim that it will be safe.It is submitted that biometric and demographic information of 1.3+ billion residents of India mean 6 petabytes (6,000 terabytes or 6,000,000 gigabytes). It will be the world’slargest database. The technological challenges are enormous and involve system performance, reliability, speed and resolution of accuracy and errors. But a more serious issue is regarding the security. The information can be hacked. The Petitioners respectfully submit that hacking of data is not a theoretical fear, but a practical reality. The implications of this cannot be settled just through a Proof of Concept.
  1. Data Protection
    1. Audit Trail: According to UIDAI, when you enter into a transaction where you had to produce your ID card, the design of the system was such that a record would be kept of every such verification. It provides a detailed record of every transaction done, which can be of interest to either people browsing the database or to security services or whoever. UIDAI, argues that the record here is limited to verification and thus even if traced back to the source of service accessed, it remains harmless. However, the record here wouldn’t be just the verification of identity; there would be a little more data associated with the transaction. In a recent published interview, a scholar working on the conflict between privacy and National ID cards, cites the following apposite example:

“For example, you went to Health Clinic Number 45. They used your card and your fingerprint there for verification. They did this at 12:37 hours. There is a series of metadata associated with that visit that would be there in the audit trail. And, of course, it wouldn’t take very long to realise that, actually, Health Clinic Number 45 is a sexual health clinic. If the audit trail also shows that you were there on a number of occasions, it might be reasonable to infer certain kinds of things that you perhaps do not want to disclose. Some things are not necessary to be disclosed, but which are being recorded and stored in an accessible way to various people because of the way the system is designed.” A copy of the Edgar Whitley interview printed in Frontline is annexed hereto and marked as Exhibit O.

    1. Disclosure of Information: The potential of audit trail misuse is an important reality. In the present form UIDAI has no mechanisms for preventing the sharing of any information, or safeguards/penalities for leaks and misuse of verification records. The NID Bill, however contemplates misuse and hence provides the following framework:
      1. Cl. 33” Nothing contained in the sub-section (3) of section 30 shall apply in respect of – (a) any disclosure of information (including identity information or details of authentication) made pursuant to an order of a competent court; or (b) any disclosure of information (including identity information) made in the interests of national security in pursuance of a direction to that effect issued by an officer not below the rank of Joint Secretary or equivalent in the Central Government after obtaining approval of the Minister in charge.

Clause 33, is highly inadequate, as firstly it excludes information sought for nsecurity reasons from judicial scrutiny. This in itself is a recipe for grave misuse of private information. On the other hand court orders are not subject to the rule of audi alteram partem.

  1. Destruction of Data: The UIDAI has described its operational method for authentication of enrollees as requiring the person to present the number and biometric information (initially, fingerprints, up to ten; however it has been asserted from time to time that only two fingerprints will be necessary for authentication; in the absence of any trials of the system, such fine details are not known at present. The need for iris scans has also been expressed, however, the budget for recording iris scans has not been approved, nor have the present numbers of the population, said to be over 10 cr, had iris scans taken at the time of enrolling with UIDAI). The information will be matched with the information in UIDAI’s central database and a simple yes/no reply will be generated. No personal details of any kind can be sought from the database through this system. It is obvious that other personal details are only taken for the purpose of verifying the accuracy of the basic information ie matching the fingerprints with the person. It is not needed for the further functioning of the system, as claimed by UIDAI. It is therefore essential that the additional data collected be destroyed in order to protect citizens from any illegal access to the UIDAI database and subsequent misuse of that breach of privacy in any way whatsoever. UIDAI has not made any provisions at all for data destruction, although it is well known in technological circles that destruction of digital data is an expensive and tedious task.
  1. It is important to note that the Right to Privacy especially in the context of wrongful access to personal information about individuals and controlling excessive interference from the State into private lives of individuals, is well recognized in Indian law. It has been held that the Right to Privacy is an integral part of the Right to Life under Article 21.
  1. In Kharak Singh v. State of Uttar Pradesh1, a person with a criminal record, had challenged the constitutionality of certain police regulations which permitted surveillance of his house as also ‘domiciliary visits’ to his house at any time. In this case the petitioner had attempted to put forth the argument that the regulations in question violated his right to privacy which could be read into the fundamental right to life and liberty in Article 21 of the Constitution. The majority judgment of the Court however rejected this argument that Article 21 of the Constitution provided for a fundamental right to privacy. The minority judgment by Justice Subba Rao and Justice Shah however favoured a broader interpretation of the term ‘personal liberty’ in Article 21. In pertinent part, Justice Rao held that “It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.”
  1. The debate over ‘privacy as a fundamental right’ cropped up once again in the case of Gobind v. State of Madhya Pradesh. The petitioner in this case had challenged certain police regulations on the grounds that the same had invaded the petitioner’s fundamental right to privacy. In this judgment a full bench of the Supreme Court was more willing to link the ‘right to privacy’ to the fundamental rights enshrined in Part III of the Constitution. The Court has held that the Right to Privacy clearly means one has a right to be left alone within one’s home.

“Rights and freedoms of citizens are set forth in the Constitution in order’ to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. ‘Liberty against government” a phrase coined by Professor Corwin expresses this idea forcefully. In this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.”

  1. The aforesaid quote is pertinent in understanding the kind of unfettered intrusion access UIDAI and the NID Bill allow into the State and many other private agencies into the personal lives of citizens of India, without any legislative procedures, safeguards and remedy. Thereafter, the right to privacy has been recognized in a number of judgments of this Court and of the  High Courts in a number of cases including PUCL v. Union of India (1997) 1 SCC 301, Sharda v. Dharampal (2003) 4 SCC 493, R. Rajgopal v. State of Tamil Nadu (1994) 6 SCC 632, Phoolan Devi v. Shekhar Kapur (57 (1995) DLT 154), Khushwant Singh v. Maneka Gandhi AIR 2002 Del 58.
  1. And more appositely, in the case of District Registrar and Collector, Hyderabad v. Canara Bank (2005) 1 SCC 632,  section 73 of the Andhra Pradesh Stamp Act was challenged. The impugned section required any public officer or any other person having in his custody records, registers, books, documents, the inspection of which may result in discovery of fraud or omission of duty, to allow any person authorized in writing by the collector to enter any premises to conduct an inspection of the same which may also be impounded by the person so authorized after due acknowledgement of the same.
  1. This provision was struck down by the High Court of Andhra Pradesh on the grounds that it was arbitrary and unreasonable and the same was upheld by the Supreme Court. In arriving at its conclusions the Court held that legislative intrusions into a person’s privacy “must be tested on the touchstone of reasonableness as guaranteed by the Constitution and for that purpose the Court can go into the proportionality of the intrusion vis-à-vis the purpose sought to be achieved.” In a later portion of the judgment the Court while harshly criticizing the lack of any procedural safeguards or mechanism in the impugned provision went on to cite its own precedent in the case of “Air Indiav. Nergesh Meerza & Ors., (1981) 4 SCC 335, where “it was held that a discretionary power may not necessarily be a discriminatory power but where a statute confers a power on an authority to decide matters of moment without laying down any guidelines or principles or norms, the power has to be struck down as being violative of Article 14.”
    1. Rational Nexus between UID and the Policy Objective\
  1. The Petitioners submit that the UIDAI has made statements in public that through a study titled, ‘PROOF OF CONCEPT’ they have developed a full proof method and with minimal error margin. The Petitioners submit that the purpose of any feasibilithy study must be to conclusively established that the objectives sought to be achieved will be accomplished through the exercise, especially when a vast amount of public money is at stake.
  1. Thus, in the case of the UID project, where the objectives, according to the statements of the Respondents, are to ensure welfare benefits reach the intended beneficiaries, it would be necessary for the PoC exercise to show how beneficiaries would receive these benefits. This means, that the study would involve, not merely the collection of fingerprint data, but the use of the data to authenticate the BPL beneficiaries who come to collect PDS rations from designated shops and their receiving the goods over a reasonable period of time through the process envisaged in the project. Thus in a nutshell a feasibility study should not be a theoretical, imaginative exercise like the POC, but something that is tested in practice over a period of time.
  1. The Petitioner submits that the primary purpose of UIDAI is said to be to improve the welfare system in the country by eradicating identity theft through duplication of identity. Thus non-duplication has been championed as both the solution for fixing the old Public Distribution System, and UID as the “unique” method of achieving it.
  1. The Petitioners submit the foremost assumption in the aforesaid is that due to lack of identity the poor do not receive government welfare benefits. Secondly, the Respondents assume that fake and duplicate identities are the causes for leakage (that is siphoning) of welfare funds. Both these are unproven assumptions. They are not based on any study or investigation. Several studies have increasingly shown that the PDS system is actually improving, and that by introducing an untested new Aadhaar, universally and across the board in a rushed manner, may actually end up excluding a lot of intended beneficiaries. Copies of detailed reports, analysis and studies conducted on the efficacy of UIDAI to address welfare distribution issues conducted and written by Prof. Reetika Khera are annexed hereto and marked collectively as Exhibit P.
  1. UIDAI argues that through the combination of name, photograph, fingerprinting and iris scans they can create an irrefutable identity that is linked to the person itself, and does not require any external proof – like ration cards or passports for identification. The person herself is the identifier through fingerprinting and iris scans.
  1. However, there are many problems with this proposition. Firstly, a data base of this scale of 1.2 billion people’s finger prints and iris scans has never been created. Thus the entire proposition for a population base such as India is completely untested and unproven. Quoting an analogy that criticizes the similar UK ID Cards’ non-duplication strategy which was entirely scrapped:

There were far better performance results on a 1:1 match. So, this is Edgar’s fingerprint on the database, here is Edgar, we do 1:1 match; this is more likely to work. But that was not how the U.K. was planning to use it. The U.K. was trying to use biometrics to also prevent duplicate identities. The idea was that even if I try to enrol twice, and even if I had created a fake biographic identity (say, a John Smith with a different address), when my fingerprint came in for a second time, the system should come along and say: “We know this fingerprint, and this belongs to Edgar Whitley” and not say, John Smith. Here, you have to match every single biometric with every single previous biometric.”

  1. Thus biometrics requires not just matching a fingerprint with its true origin, but also with others to avoid non-duplication. Apart from this exercise, the very reliability of finger prints in India is not 100 percent. An assessment report filed by 4G Solutions, contracted by UIDAI to supply biometric devices, notes:

“It is estimated that approximately five per cent of any population has unreadable fingerprints, either due to scars or aging or illegible prints. In the Indian environment, experience has shown that the failure to enrol is as high as 15 per cent due to the prevalence of a huge population dependent on manual labour.”
Copy of the 4G Solutions Report is annexed hereto and marked as Exhibit Q.

  1. The report of the UIDAI’s “Biometrics Standards Committee” actually accepts these concerns as real. Its report, notes that “fingerprint quality, the most important variable for determining de-duplication accuracy, has not been studied in depth in the Indian context.” Thus, the very premise of UIDAI is not something that has scientific backing.This consideration has formed an important basis behind the decision of the Standing Committee rejecting the UIDIA bill and scheme as it presently stands. Copy of the Biometrics Standards Committee report commissioned by the UIDAI is annexed hereto and marked as Exhibit R.
    1. Mandatory and Coercive
  1. The Petitioners submit that one of the biggest illegalities being committed under the Aadhaar scheme is by making it mandatory through coercive conditions. UID has always, repeatedly stated that Aadhaar is a voluntary scheme. Thus, enrolment for Aadhaar is a voluntary act. The NIAI draft Bill, which seeks to legitimatize the functioning of the first Respondent, is so worded to establish that Aadhaar is optional and not compulsory. However, in its premature implementation, in practice the scheme is gradually being made non-voluntary and mandatory. This is made worse by adoption of coercive pre-conditions by different government departments.
  1. A recent gazette notification dated 26 Sep 2011, of the Petroleum Ministry has made Aadhaar a mandatory condition for LPG users. Copy of the news report announcing the change in policy is annexed hereto and marked as Exhibit R.
  2. Government of Maharashtra through its GR dated April 2011, plans to make Aadhaar a compulsory requirement for government employees for accessing their salary benefits. Copy of the aforesaid circular is annexed hereto and marked as Exhibit S.
  1. The Petitioners submit that the enrollment for Aadhaar is working on an extremely fast pace that it has become impossible to avoid attempts at enrolment. The Petitioners submit that such mandatory, non-voluntary and coercive enrolment for Aadhaar is an affront to their to personal integrity, right to make decisions about themselves and the right to dignity all enshrined and developed as indivisible elements of the Right to Life under Article 21 of the Constitution.
  1. The Petitioners submit that by insisting on a mandatory requirement and making access to every service contingent upon Aadhaar, the Respondents are creating a class of excluded non-Aadhaar holders who will be left out of welfare schemes, because they have consciously chosen to not enroll in an untested, premature and at present completely unreliable scheme.
  1. The Petitioners submit that Aadhaar must be enacted not only under the supervision and protection of a strict national privacy law, but even in its implementation it must only be brought in through a phased manner, and not the sudden immediate implementation as at present.

GROUNDS

  1. The UIDAI-Aadhaar scheme as it presently stands as a mere executive fiat, is illegal, arbitrary and unconstitutional by granting wide, unrestricted powers to an unaccountable independent body knows as UIDAI, and also to private agencies; leading to huge breaches on the right to privacy and dignity of Indian citizens;
  2. The co-extensive executive power exercised to implement UIDAI cannot be untrammeled and function towards restricting fundamental rights without any due procedure, guidelines and safety mechanism, which can only be ensured through a statutory framework;
  3. The Hon’ble Supreme Court has repeatedly held that executive power cannot be used to restrict fundamental rights;
  4. The mandatory enforcement UIDAI-Aadhaar scheme contravenes Article 21 by restricting the right to decision making, personal integrity, choice and dignity;
  5. The impugned notification dated 4th November 2008 is illegal, arbitrary and bad in law for setting out an extensive task of launching UID way beyond the executive competence, without any guidelines, rules and procedure;
  6. The aforesaid impugned notification is illegal, arbitrary and unconstitutional and in breach and contravention of Article 14 for assigning the most essential function of data collection via enrollment for Aadhaar to private agencies;
  7. The aforesaid notification is further illegal as it delegates excessive powers with the UIDAI without any guidelines or procedure, leading to further unrestricted delegation of powers to private parties creating great potential for data leakages, and breaches of sensitive private data leading to Indian Citizens;
  8. Cross-referencing service usage of a particular individual through a single numeric bio-metric identity has huge implications for building State  inroads into every private activity and service accessed by that individual, this is further complicated by the possibility of private actors also accessing similar information. This convergence of silos of information will completely abolish the veneer of privacy that protects the daily lives of individuals.
  9. The Hon’ble Supreme Court of India has repeatedly upheld the right to privacy within the right to life in Article 21, and any restriction must be justified through a rational and reasonable statutory procedure. UIDAI, as it presently stands is prima facie unconstitutional for contravening the right to privacy without providing any safeguards, procedures and guidelines
  10. The UIDAI is further frought and arbitrary for failing to provide a rational nexus between means adopted of obtaining sensitive personal information in a central database through private, or public-private partnerships for verification purposes in a central database and the ultimate objective of improving public welfare; wherein the whole premise is based on non-duplication of identity through biometrics, which still remains unproven.
  11. The aforesaid impugned scheme is further in breach of right to dignity and personal autonomy enshrined under Article 21, by making the Aadhaar mandatory, thereby forcing people to submit themselves to an unreliable, untested, premature scheme which has no statutory standing and compromises their personal lives.

PRAYERS

  1. For a Writ of Certiorari or any writ, order, direction in the nature of certiorari or any other appropriate writ, order of direction quashing the notification dated 29th January 2008 annexed at Exhibit F;
  2. For a writ of Prohibition or a writ, order or direction in the nature of prohibition or any other appropriate write, order of direction restraining the Respondents from taking any further steps of any nature whatsoever in relation to UID;
  3. Till the final hearing and pendency of this Public Interest Litigation, this Hon’ble Court may be pleased to stay the operation of the impugned dated 29th January 2008 annexed at Exhibit F;
  4. Till the final hearing and pendency of this Public Interest Litigation, this Hon’ble Court may be pleased to restrain the Respondents from taking any further steps of any nature whatsoever in relation to UID;
  5. For ad interim relief in terms of prayers C and D;
  6. For any other orders that this Hon’ble Court may deem fit;

VERIFICATION

1  AIR 1963 SC 1295  at para 18

#India- Budgeting Out Adivasis #Tribals #Indigenous


The finance minister’s package falls far too short of the basic needs of tribals

Brinda Karat

It is budget time once again. Far away from the talk of lakhs and crores of rupees echoing from Parliament to television studios, a thin adivasi teenage girl stands in a queue at her hostel, her plate in her hand, waiting for her share of the gruel that she is given for lunch every day. Her family depends on the money from the minor forest produce her mother gathers from the forest. Her father has lost the money invested to till the two acres of land they own. The family is now in debt. When the child looks around she sees girls who tell the same stories.
What does the budget have for her? She is a beneficiary of a scheme called the pre-matric scholarship scheme. Run by the central government and followed by most state governments the scheme is to fund an adivasi child living in a hostel, her food and other expenses. The money goes directly into the hostel fund. Pre-budget, the amount paid per child was Rs 525. This works out to around Rs 17 a day or, if the child is fed three times a day, less than Rs 6 a meal. That is, assuming that the entire amount is honestly used for the child’s food.
With food inflation relentlessly increasing, the child makes do with a gruel in the morning, a mixture of very watery dal and rice for lunch and dinner, sometimes with vegetables or an occasional egg – which has stopped in many hostels for the last several months. Sadly for this child, P Chidambaram’s budget does not envisage any stipend increase. The increase in the midday meal scheme will not help her as it is mainly for day schools. Since substantial numbers of adivasi children have to live in hostels as there are few secondary schools near their villages, they do not benefit.
The child’s father was at the moneylender’s when the finance minister enhanced the target for agricultural credit to Rs 7 lakh crore. Her father had heard of farmers’ loan waiver schemes. But every time he had been
turned away from the bank. For generations his family has lived on the land, and there was never a question of ownership. But following colonial British policies, the newly independent Indian state had declared itself owner of all forest land, turning adivasis overnight into encroachers. Without the ownership papers he was not eligible for the loan waiver. So he was forced to go to the moneylender for loans with a high interest rate. The loan waiver scheme means little to him or millions of adivasi farmers unless moneylender loans are included.
Near the child’s village, about 20 km away from the hostel, her mother stops in the forest, just as the finance minister is announcing how his heart beats for her community. In this season she and all those able to work are out in the forest, the men climbing the trees to shake and cut while the women wait below to collect the tamarind. She will spend the next day processing it. It takes four people a day to collect about 50 kg of tamarind. The trader will give her Rs 15 for her two days’ labour of collection and processing, and sell it in the market for Rs 80 a kg. She knows the tendu season is going to start soon. For every 50 leaves she collects, she can hope to receive between 50p and 65p (this varies from state to state and can be as low as 40p) though the trader who buys it from her will get not less than between Rs 1.20 and Rs 2 depending on the quality. Does the budget help her?
The Haque committee set up by the panchayati raj ministry, estimated in its May 2011 report that 275 million adivasi women and men depend on minor forest produce (MFP). The report detailed the rampant exploitation in MFP trade and strongly recommended that the government set up a commission to ensure a minimum support price (MSP) for MFP on the lines of MSP for foodgrains. The estimated cost of procurement according to the committee was between Rs 4,000 and Rs 5,000 crore a year.
The Planning Commission in its 12th five-year plan brought down the cost to Rs 2,000 crore for the entire Plan period, or just Rs 400 crore a year. But in this budget, the second year of the Plan, not a single paisa is allocated for MSP for minor forest produce. Nor is there even a mention of setting up a commission.
The finance minister’s claims sound hollow, judged against the needs of adivasi communities – a decent scholarship programme for adivasi children, special credit for adivasi farmers and minimum support price for minor forest produce.
Statistics of increased expenditure bandied about need to factor in not just the almost 8% inflation rate, but also compare the expenditure as a proportion of the GDP. The expenditure on the Tribal Sub-Plan (TSP) is 0.22% of GDP this year, which is exactly the proportion it was last year.
Even taking the ST population as 8.2%, which is on the lower side, the allocations for the TSP are short by Rs 20,938 crore. Even today only one-third of the 21 central ministries and departments charged to allocate funds for the TSP are doing so. But the trimurti of the prime minister, the finance minister and the Planning Commission chairman, keen to cut expenditures in order to manage the deficit created because of their own flawed policies, think it better to ignore this violation.
The writer is a member of the CPM politburo.

Falling through the cracks

 

#India- A ‘Cost-Benefit’ Analysis of #UID #Aadhaar #mustread


200 px

200 px (Photo credit: Wikipedia)

 

Vol – XLVIII No. 05, February 02, 2013 | Reetika Khera

A cost-benefi t analysis by the National Institute of Public Finance and Policy of the benefits from Aadhaar integration with seven schemes throws up huge benefi ts that are based almost entirely on unrealistic assumptions. Further, the report does not take into account alternative technologies that could achieve the same or similar savings, possibly at lower cost.

Reetika Khera (reetika.khera@gmail.com) is at the Institute of Economic Growth on a ThinkTank Initiative Associate Professor Fellowship.

I would like to thank Jean Drèze for helpful feedback.

A recent study released by the National Institute of Public Finance and Policy (NIPFP) presents an innovative “cost-benefit analysis” of the Unique Identification (UID) or Aadhaar project. This is, in principle, a welcome step towards more informed discussion and greater transparency of this project. On close examination, however, the widely-publicised conclusions of this study turn out to have a fragile basis.

In a nutshell, the NIPFP report covers the potential use of Aadhaar in seven major welfare schemes and subsidies. These are the public distribution system (PDS), Mahatma Gandhi National Rural Employment Guarantee Act (MGNREGA, or simply NREGA), school education (including teacher salaries, mid-day meals, textbooks and uniforms), fertiliser subsidy, liquefied petroleum gas (LPG) subsidy, Indira Awaas Yojana (IAY), and payments in other schemes (pensions, Janani Suraksha Yojana, accredited social health activists and the Integrated Child Development Services). It estimates that linking these programmes to Aadhaar will lead to a “saving” of Rs 1 lakh crore over 10 years (Mathew 2012), and that after accounting for the costs of integration with Aadhaar the internal rate of return of the project will be over 50%.

Benefits from UID-Integration

The main question pertains to the benefits of integration with UID. The NIPFP report recognises that not all leakages in these programmes can be fixed by UID-integration. Only “bogus” beneficiaries, i e, ghosts (e g, a dead person whose name remains on government records) and duplicates (one person getting benefits twice), can be weeded out.1Estimates of bogus beneficiaries are available for only two of the seven programmes considered in the NIPFP report (the PDS and NREGA).

For the PDS, the report uses the leakage estimates from a report of the Planning Commission published in 2005, based on the outdated data pertaining to 1997-2001.That study estimated that 57% of PDS grain is diverted, of which, 17% was attributed to “ghost cards”. The definition of ghost cards includes (a) below the poverty line (BPL) cards that are not in possession of their owners, and (b) the excess of the total number of ration cards over that of total households (ibid: 82). It is worth-mentioning here that PDS entitlements are fixed per household. It is quite possible that in some cases several members of a joint household obtained separate ration cards for their respective nuclear families. Whether this should count as a case of “ghost” cards, as the Planning Commission report assumes, is not entirely clear. In any case, there is no reliable and up-to-date estimate of the share of bogus cards in circulation.

For NREGA the report assumes that UID integration will lead to savings of 12% of total expenditure – 7% from “automation of muster rolls” and another 5% from linking NREGA bank accounts to Aadhaar (without explaining how these would curb corruption, e g, how automation of muster rolls helps to reduce leakages). If the idea is that some people who do not work manage to have their names on the muster rolls and wages are credited to their accounts (i e, are “bogus” beneficiaries), then this fraudulent practice can continue even if muster rolls are automated.

The real protection from wage corruption in NREGA comes through bank accounts as it separates the payment agency from the implementing agency.3 With bank accounts, wage corruption can still continue in three forms: collusion (where the bank staff and NREGA functionaries collude to inflate work attendance and credit wages into accounts of people who have not worked), extortion (when an official forcibly takes money from NREGA workers after it has been withdrawn from the bank account) and deception (when a worker’s account is operated by NREGA functionaries without his or her knowledge). In the first two cases (collusion and extortion), linking accounts to UID will not help to reduce corruption. Only in cases of deception (or “identity fraud”) can biometric authentication at the stage of withdrawal of wages help.4 Estimates of the breakdown of the different types of corruption are not available.

The NIPFP report also recognises that estimates of duplicates and ghosts are not available for many schemes. What is the correct way to make assumptions on benefits of UID-integration in such cases? There is no easy answer to this, so what the NIPFP report does is either to apply the estimates of leakages due to bogus beneficiaries for one scheme to another (e g, in the case of fertiliser and LPG subsidies, the estimates applicable to the PDS are used),5 or – for the remaining schemes – to apply an arbitrary rate of 7-10%.6

Although these assumptions are termed “conservative” (Patnaik 2012), available evidence – patchy as it is – suggests otherwise. For example, an estimate of fraud in six pension schemes has been made by the Society of Social Audit Accountability and Transparency (Department of Rural Development, Government of Andhra Pradesh) for July-October 2012. Six types of corruption are documented: “dead persons”, “dual beneficiaries”, “partial payments”, “ineligible beneficiaries”, “not paid but drawn” and “other”. These social audit reports suggest that the total discrepancies in disbursement of pensions are around 2%. Discrepancies due to dead beneficiaries and dual pensions – problems that Aadhaar can fix – are a subset of this 2%. The rate assumed by the NIPFP report is 7%.

While the report admits that there are no “robust” estimates of duplicates and ghosts, it provides little justification for the rates assumed in the cost-benefit analysis. Anticipating questions about the assumptions, the anonymous authors of the NIPFP report do upload the spreadsheet with their calculations, inviting readers to “modify the assumptions and explore alternative outcomes”.7

Alternative Technologies

Biometric technology (of which Aadhaar is one variety) can help when there are bogus beneficiaries – ghosts or duplicates. Other, cheaper technologies (e g, computerisation) can also help weed out bogus cards and help plug other leakages. Tamil Nadu has a fully computerised PDS database and overall PDS leakages are very small (4% in 2009-10). In states such as Chhattisgarh, overall leakages in the PDS have fallen from 50% (in 2004-05) to 10% (in 2009-10) without any use of Aadhaar, but through computerisation and other measures (Khera 2011b). The question a cost-benefit analysis should really address is whether Aadhaar is more cost-effective than these and other alternatives, including local biometrics (used in Andhra Pradesh). This question is raised in passing, but not answered in the NIPFP report (Patnaik 2012).8

Concluding Comments

In short, NIPFP’s widely publicised cost-benefit analysis of UID is far from persuasive. It is almost entirely based on assumptions, not estimates, of the benefits of integration with Aadhaar. Where estimates (not assumptions) of bogus beneficiaries are used, they are unreliable or out of date. Further, the report does not take into account alternative technologies that could achieve the same or similar savings, possibly at lower cost.

The report also briefly considers the “costs” of integration of these schemes with Aadhaar. However, it makes no mention of the potential disruption that the integration exercise might cause. Disruption could be at the stage of integration (e g, old age pensioners may be unable to complete the required formalities) or during operations (e g, software, connectivity or biometric failures). By assuming, with touching optimism, that the UID system is reliable and seamless, the report fails to address crucial concerns that have been raised about this adventurous project.

Notes

1 For a detailed discussion on the types of corruption Aadhaar can weed out, see Khera (2011a).

2 “The reference period for the study was from 1997 to 2001 – the four-year period of the operation of TPDS. The household level information referred to the period from May to December 2001” (Planning Commission 2005: 13).

3 This practice has been in operation since 2008, except in Tamil Nadu. A few remote pockets were allowed to return to cash payments by Minister of Rural Development Jairam Ramesh in late 2011.

4 Note also that once those who were using “deception” to defraud the system, may turn to extortion and collusion once identity fraud becomes impossible.

5 The report states, “Using the estimates for PDS and MGNREGS as benchmarks, we assume that using Aadhaar-enabled system would result in a benefit of 7% of the total value of subsidies” (p 11) and “in the absence of such robust studies estimating the leakage from the system towards commercial use, we assume that use of Aadhaar would result in a benefit of 10% of the total value of the subsidy (similar to PDS)” (p 12).

6 See, for instance, p 10 where the report says, “In the absence of data on the extent of leakages that exist on account of fake and duplicate beneficiaries, we have assumed this figure to be 10% of the total expenditure incurred by the government on books and uniforms for school children”.

7 Initial attempts (twice, at a three-day interval) to download the spreadsheet revealed that the spreadsheet was password protected. Now one out of seven worksheets can be modified. The practice of posting reports without author names is also observable with the documents on NREGA and PDS on the Unique Identification Authority of India (UIDAI’s) website.

8 The cost-benefit work has been done by the MacroFinance group at NIPFP, a government-funded institution. The group has a project from UIDAI on financial inclusion which is perhaps why they focus only on UID. At the time of writing, no other paper on UID or financial inclusion was available on their website, raising the question whether the cost-benefit analysis itself was effectively sponsored by the UIDAI. Even if that is not the case, funding from the UIDAI to the MacroFinance group does create a possible conflict of interest, which would merit at least a short disclosure in the report.

References

Khera, Reetika (2011a): “The UID Project and Welfare Schemes”, Economic & Political Weekly, Volume 46, No 9, 26 February.

– (2011b): “Revival of the Public Distribution System: Evidence and Explanations”, Economic & Political Weekly, Volume 46, Nos 44-45, 5 November.

Mathew, Joe C (2012): “Big on Savings, Low on Leaks”, Business World, 24 November, available online athttp://www.businessworld.in/en/storypage/-/bw/big-on-savings-low-on-leak…

NIPFP (2012): “A Cost-Benefit Analysis of Aadhaar”, MacroFinance Group, National Institute of Public Finance and Policy, 9 November, available online at http://macrofinance.nipfp.org.in/FILES/ uid_cba_paper.pdf

Patnaik, Ila (2012): “Identify This”, The Indian Express, 3 December, available online at http://www.indianexpress.com/news/identify-this/ 1039542/

Planning Commission (2005): “Performance Evaluation of Targeted Public Distribution System”, Programme Evaluation Organisation, Planning Commission, Government of India, March, available online athttp://planningcomission.nimc.in/reports/peoreport/peo/peo_tpds.pdf