AADHAR—Extra Legal Coercion

Usha Ramanathan

[Following is a slightly shortened version of a talk given by Usha Ramanathan at Earthcare Bookstore, Kolkata on November 21, 2013, on Aadhaar/UDI Number and its implications.]

Aadhaar is a project where, there is still no feasibility study, this is a project, there is no cost-benefit analysis.

There is no law that protects the holder of the UID number from misuse and abuse, and it is by now clear that no agency is willing to take on the risk of liability for identity fraud or for wrongfully denying a person their identity.

There is no law of privacy. Instead, the UIDAI has been working overtime to effect 'convergence' of databases currently held in distinct silos, making surveillance, and social control, more than merely possible. There is no protection against tagging, tracking and labelling. And, the Natgrid, CCTNS, NCTC, PII, MAC are only some of a variety of other acronyms conjured up over the last 3-4 years which will give intelligence agencies an easy instrument for invading the lives and practices of people. [National Intelligence Grid (NATGRID) and the proposed National Counter Terrorism Centre (NCTC), Crime and Criminal Tracking Network System (CCTNS), Multi-Agency Centre (MAC), Public Information Infrastructure and Innovations (PIII).

Meanwhile, a Division Bench of the Andhra Pradesh High Court comprising Chief Justice Kalyan Jyothi Sengupta and P V Sanjay Kumar on November 21 made it clear that supply of subsidised cooking gas (LPG) for residential use should not be curtailed in the name of Aadhaar. One petitioner had challenged the action of the authorities in insisting on Aadhaar for any government schemes including the supply of subsidised cooking gas for household purposes. The Bench heard the matter in detail and felt that linking Aadhaar with gas supply could not be made compulsory.

Union Petroleum Ministry filed an affidavit informing the court that no statutory notification was issued mandating Aadhaar for the supply of LPG cylinder for domestic needs. Similar affidavit has be;n filed in the Supreme Court by the Ministry.

The petitioner argued that collecting data of the citizens through bio-metric system amounted to violation of the right of privacy guaranteed under right to life. It was also submitted to the court that no law was passed and no rule was framed for linking Aadhaar with supply of various welfare schemes for the citizens.

The Bench speaking through the Chief Justice, Andhra Pradesh High Court said that in the absence of any notification or statute the oil companies had no right to insist on production of Aadhaar for supply of domestic LPG cylinders.

It may be recollected that Punjab and Haryana High Court bench headed by Chief Justice A K Sikri passed an order March 2, 2013 after hearing a matter challenging a circular making UID number mandatory. The moment Court raised questions of laws, the circular was withdrawn by the central government. The decision underlined that UIDAI is legally assailable and indefensible. Supreme Court order vindicates the Punjab and Haryana High Court order, report of the Parliamentary Standing Committee on Finance and the Statement of Concern dated September 28, 2010 issued by 17 eminent citizens including Justice VR Krishna Iyer, Prof Romila Thapar, SR Sankaran, Justice AP Shah, KG Kannabiran, Bezwada Wilson, Aruna Roy and Prof Upendra Baxi seeking halting of the project. Senior CPI(M) leader, P Karunakaran headed The Parliamentary Standing Committee on Subordinate Legislation is also seized with the compliant dated 18.3.2013 on how Subordinate Legislation for Biometric Identity is illegal & illegitimate and constitutional, legal, historical & technological reasons against UID number scheme.

It is quite sad that legal minds in West Bengal have not informed their chief minister that it is not a question of aadhaar number being voluntary or mandatory, which seems to be the focus of the resolution passed in the State Assembly. It is a question of the grave ramifications of illegal and illegitimate biometric Aadhaar number which is quite well documented.

Notably, Kerala's leader of the opposition VS Achuthanandan from CPI(M) asked the government to drop the 'Aadhaar' project on 26 August 2011. This was welcomed by anti-aadhaar researchers and campaigners. Although belated Achuthanandan noted that fingerprints and other biometric information of citizens were being collected under the project by violating provisions of the Citizenship Act of 1955 and Citizenship Rules of 2003, neither of which permitted collection of biometric information of Indian citizens.

The state government, which was pushing ahead with the project in Kerala, appeared little worried about the serious concerns being expressed the world over about the implications of the UID project for citizen's right to privacy and security. It must be noted that Achuthanandan as the chief minister of Kerala, launched the unique identification number project, Aadhaar in the State on 24 February 2011. In his inaugural speech he has said that Aadhaar project has elicited mixed feelings within the minds of people. "As we launch this project in the State, we will take necessary measures to spread awareness of the pros and cons of enrolling into this scheme before people enrol themselves," Achuthanandan had said. But enrolment for the UID/Aadhaar had begun with immediate effect during his tenure. Wisdom seems to dawn when politicians are in opposition, now he has rightly demanded scrapping of Aadhaar.

But in Tripura, where CPI (M) rules, this belated wisdom seems to await the time when chief minister Manik Sarkar will be in opposition. Tripura was the first state in the northeast and the eighth in India where the Aadhaar scheme was launched on 2 December 2010. Tripura secured top position in the country in implementing Aadhaar project. But this performance is shrouded with allegations of irregularities in spending of Rs 15 crore meant for Aadhaar. Bowing to the Congress party's persistent demands, chief minister Sarkar announced in the state assembly on 1 March 2012 that the state government would request the Central Bureau of Investigation (CBI) to investigate alleged irregularities in implementation of the 12-digit number being issued by the UIDAI for all Indian residents.

"We would take up the matter with the CBI and the Comptroller and Auditor General of India (CAG) to examine whether any misdeeds occurred in spending the central funds meant for 'Aadhaar' scheme," he said.
Tripura's rural development minister Jitendra Chowdhury quoted a communique of the union rural development ministry in the state assembly saying, "The central government, at a function in New Delhi recently awarded Tripura and other well performing states in implementation of the Aadhaar scheme." One does not know whether the demand for CBI probe has been pursued.

After receiving the award from the Indian National Congress led government, under the title "Aaadhar Illegal", on 25 September 2013, the CPI (M) issued a statement saying, "The Polit Bureau welcomes the judgement of the Supreme Court that the Aadhaar Unique Identity cannot be made mandatory for receiving social benefit schemes. The government has been illegally instituting the cash transfer schemes and identification of beneficiaries of social welfare schemes based on the Aadhar identity." (Source:http://cpim.org/content/iudgement-welcorned)

It may be recalled that after submitting 3.57 crore signatures against Aadhaar/UID to the Prime Minister on March 14, 2012 Socialist Unity Centre of India (SUCI)—Communist party's journal has denounced the Unique Identity (UID) or Aadhaar scheme as 'subversion of democracy' in its four page analysis.

It had taken note of the severe indictment of the Unique Identification Authority of India (UIDAI) by the Parliamentary Standing Committee on Finance in its report placed before Parliament on December 13, 2011. According to the report, the UID/Aadhaar project has been conceptualized "with no clarity of purpose" and "directionless" in its implementation, leading to "a lot of confusion". The Standing Committee also observed that while framing of relevant law is under way, the continuance of the project is "unethical and violation of Parliament's prerogatives". The collection of biometric and personal data and issuing of UID numbers do not have any statutory sanction until the Bill is passed by Parliament. The April 2013 issue of Proletarian Era, the central organ of the SUCI (Communist) raises pertinent questions debunking the need for UID/Aadhaar.

The party holds that "In the absence of a Constitutional provision or legal framework, all the actions of the UIDAI are technically unconstitutional and illegal."

It observes "Nandan Nilekani, the current Infosys chief nominated by the government to head the project, has been given sweeping powers." The party's analysis infers that "the claim that introduction of Aadhaar would cleanse the system from middleman intervention is not only hollow but deceptive as well."
It apprehends that "The possibility that some such agencies (data collecting entities) are aligned to communal and fundamentalist groups and thus having ulterior motive in collecting non-mandatory information, cannot be ruled out."

It observes, "several countries including the US, the UK, Australia, China, Canada and Germany have tried such projects but aborted them midway as impractical. The US arguably the most surveillance prone society in the world passed a Federal law requiring the States to allow the Federal Department of Homeland Security to access State databases such as drivers' licences and motor vehicle registration but failed to implement the same."

The journal dwells on individual's right to privacy and the biometric-based national ID system as unconstitutional on grounds of invasion of privacy. It recollects the decision by the European Court of Human Rights on the violation of the right to privacy and citizens' rights. The unanimous decision of judges was that the "blanket and indiscriminate nature" of the power of retention of the fingerprints, cellular samples, and DNA profiles of persons suspected but not convicted of offences, failed to strike a fair balance between competing public and private interests.

In a pithy observation that merits the attention of all the political parties and the people’s movements the journal observes, "In our country where abuse of power for ulterior motive, spying on political opponents, subversion of basic human rights, harassing activists of democratic mass movements, crushing democratic mass movements by resorting to various coercive methods including persecution of their core leaders and organizers in a planned way and such other undemocratic acts are reported every day in swelling numbers, such empowerment to any nodal agency is bound to be viewed as arbitrary, if not draconian. It is no more a secret that there was involvement of the entire government machinery in mass carnage that happened in Delhi in 1984 and Gujarat in 2002. Tacit approval of the government administration towards 'encounter killings', 'custodial deaths', abuse of special power by police-military in eliminating political opponents is also a reality. While the bourgeois government does have various methods to track the movements of political opponents, with Aadhaar in place and most of the transactions starting from booking of rail tickets, withdrawal of cash from ATMs to bank credit of proposed food subsidy amount linked to it, such surveillance system might be eased if run based on Aadhaar."

Recalling past, it says, "History would bear out such systems were indeed misused by despotic and fascist forces earlier. German rulers used IBM Hollerith D-II card sorting machine in the census of the country in 1933 and since there was a provision for identifying race and ethnicity, the Nazi rulers with the help of IBM could conveniently count and identify the Jews whom they savagely butchered out of racial hatred. One, therefore, cannot rule out the possibility of this power being misused by persons in power to access private details such as religious, racial, caste or even political profiling from Aadhaar data base to serve undemocratic, illegal and unethical purposes for use in ways that may pose a risk to the life or security of the person concerned. It is noteworthy that when quizzed on how they would prevent Aadhaar data base from falling in wrong hands or enabling unscrupulous politicians to misuse for their benefit and against the interest of the Indian people, Nandan Nilakeni who eulogizes Aadhaar number as "ubiquitous" and even advised people to "tattoo it somewhere," lest they should forget it, was caught napping."

Inexplicably, CPI(M)'s position on Aadhaar/UID that has been articulated so far appears to be similar to one which has been voiced by TMC and Bharatiya Janata Party (BJP) despite their sharp differences on the issue of illegal immigrants. It merits rigorous attention as to how 'migrant workers' and 'illegal immigrants' are beginning to be mischievously used interchangeably.

Frontier
Vol. 46, No. 25, Dec 29 2013 -Jan 4, 2014

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