Briefing Paper: Citizens Forum for Civil Liberties (CFCL)
March 2016
Aadhaar Bill aims to turn the Supreme Court into a rubber stamp, an affront to the parliamentary process
Indiscriminate collection of biometric information is illegal, turns citizens into subjects and prisoners
Why Speaker, Lok Sabha cannot give Money Bill Certificate to Aadhaar Bill
Fearing rejection of controversial biometric Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016
The introduction of this Bill is an exercise wherein the doctrine of colourable legislation is applicable. The literal meaning of Colorable Legislation is that under the ‘colour’ or ‘guise’ of the power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on.
This Doctrine also traces its origin to a Latin Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliquum”. This means “when anything is prohibited directly, it is also prohibited indirectly”. It has been held that “Whatever legislature can’t do directly, it can’t do indirectly”.
This doctrine has been given in the case of K.C. Gajapati Narayana Deo And Other v. The State Of Orissa:
“If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the
When the non-compliance with the Constitutional condition for the exercise of legislative power is covert, it is a “fraud on the Constitution”.
Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 is aimed “to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto.” The Bill was introduced without it being discussed in the Business Advisory Committee. “It is a question of saving of Rs. 20,000 crore to the country,” argued M. Venkaiah Naidu, Union minister of parliamentary affairs without disclosing how much expense will be incurred in the Aadhaar project.
At the time of introduction, Members of Parliament objected to this controversial Bill saying, “It must not be introduced as the Money Bill”
It was argued by the Union Finance Minister that “It is for the hon. Speaker to now examine it and certify whether it is a Money Bill or not and that ruling is final.”
“All that the Bill says is that if you want the benefit of a Government subsidy, Government can ask you to produce an Aadhaar Number. That is all it says.”
This is reminiscent of what Thomas Szasz, a psychiatrist and psychoanalyst, wrote in his book The Second Sin published in 1974. “In the animal kingdom, the rule is, eat or be eaten; in the human kingdom, define or be defined,” he wrote.
Bhartruhari Mahtab, who is a member of Parliamentary Standing Committee on Finance said,
“Today, the basic concern was being expressed about Aadhaar Number because that was the issue which went to the Supreme Court. The legality of this went to the Supreme Court. The Supreme Court, of course, gave a judgement….The other concern to my mind was whether adequate firewall has been created to protect the privacy of every citizen. I still have my doubt. Then its legality also comes in view that if I am not interested to be a part of this scheme of things, I will be denied a number of things that will be provided through this number.”
He added that Section 33 of this Bill which deals with “Disclosure of information in certain cases” is a point of concern. It reads:
“(1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or sub-section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge: Provided that no order by the court under this sub-section shall be made without giving an opportunity of hearing to the Authority. (2) Nothing contained in sub-section (2) or sub-section (5) of section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer, not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government:
Provided that every direction issued under this subsection, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology before it takes effect:
Provided further that any direction issued under this subsection shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.”
Clause 33 of the Aadhaar Bill empowers disclosure of 'identity information' by an officer of the rank of Joint Secretary or above without the consent of the individual concerned. It does not disclose as to how disclosure of 'identity information' will be reversed once the disclosure is done.
As per Identification of Prisoners Act, 1920, biometric measurements like fingerprints of prisoners are taken with the permission of Magistrate and these records of the prisoners are destroyed on acquittal and after they have served their sentence. But in the case of UID/aadhhar the same is going to be stored forever without any legal mandate and disclosed with the legal mandate with no remedy for undoing the disclosure. Unlike the Identification of Prisoners Act, Aadhaar Bill does not provide for destruction of data.
Mahtab who was also the Member of Parliamentary Standing Committee on Finance in 2011 informed the Speaker,
“This Bill was introduced during UPA time and it had been referred to the Standing Committee. The Standing Committee had come out with a number of objections.”
The National Identification Authority of India Bill, 2010 was introduced in Rajya Sabha on 3rd December 2010 was referred to the Committee on 10th December 2010 for examination and report thereon, by the Speaker, Lok Sabha under Rule 331E of the Rules of Procedure and Conduct of Business in Lok Sabha.
The observations of the Yashwant Sinha, former Union Finance Minister headed Parliamentary Standing Committee on Finance on The National Identification Authority of India Bill, 2010 exposes the dubious nature and character of Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. The report of the Parliamentary Standing Committee was presented to Lok Sabha and Rajya Sabha on 13th December, 2011.
In its 48 pages long report, the Parliamentary Standing Committee observed:
“The Committee are constrained to point out that in the instant case since the lawmaking is underway with the bill being pending, any executive action is as unethical and violative of Parliament’s prerogatives as the promulgation of an ordinance while one of the Houses of Parliament being in session.”
At page no. 32, it reads:
“The United Kingdom shelved its Identity Cards Project for a number of reasons, which included:- (a) huge cost involved and possible cost overruns; (b) too complex; (c) untested, unreliable and unsafe technology; (d) possibility of risk to the safety and security of citizens; and (e) requirement of high standard security measures, which would result in escalating the estimated operational costs”
at page no.28.
Thus, under the circumstances, Smt. Sumitra Mahajan, Speaker, Lok Sabha is under a logical compulsion not to give the Certificate of Money Bill to Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 under Article 110 (4) of the Constitution of India before transmitting it to the Rajya Sabha under Article 109. This Bill is in furtherance of an executive action which is admittedly “unethical and violative of Parliament’s prerogatives as the promulgation of an ordinance” while Parliament has been in session. In such a backdrop, it is apparent that the Speaker erred in giving permission for the introduction of the Bill.
It is noteworthy that it took cognizance of the Report of the London School of Economics on UK’s Identity Project inter-alia which states that “…..identity systems may create a range of new and unforeseen problems……the risk of failure in the current proposals is therefore magnified to the point where the scheme should be regarded as a potential danger to the public interest and to the legal rights of individuals”.
Section 57 of the Aadhaar Bill reveals that this is being pushed by commercial czar. It reads "57. Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or anybody corporate or person, pursuant to any law, for the time being in force, or any contract to this effect:
Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI."
This brings the ulterior motive behind the entire aadhaar schemes to light. It provides that it is meant not only for the purposes of allocating entitlements, subsidies, benefits or services but also for commercial transactions whether conducted by any natural person or legal person (body corporate). This is applicable to every law and contract for any purpose.
Citizens Forum for Civil Liberties (CFCL) which has been campaigning against 12 digit biometric information based unique identity (UID)/Aadhaar number since 2010 had appeared before this Yashtwant Sinha headed Parliamentary Committee to give its testimony. The eminent persons who appeared before it included witnesses and experts like Dr. Usha Ramanathan, a noted jurist, Dr. R. Ramakumar, Associate Professor, Tata Institute of Social Sciences, Mumbai and Shri Gopal Krishna, Member, Citizen Forum for Civil Liberties on 29th July, 2011.
It is noteworthy that officials of Unique Identification Authority of India (UIDAI) like Shri Nandan Nilekani and Shri R.S. Sharma had appeared before the Yashwant Sinha headed Parliamentary Committee as witnesses on 11th February, 2011. It is abundantly evident from the Parliamentary Report that UIDAI officials miserably failed to satisfy the Parliamentary Committee. The Committee took evidence of the representatives of the UIDAI in connection with the examination of the National Identification Authority of India Bill, 2010. As per the report the major issues discussed with these officials included, need for providing statutory status to the UIDAI; Definition of Resident‘; provision for de-activating the Aadhaar Number and collection of demographic information and biometric information, this indicates that Parliament, UIDAI and the Central Government knew/knows that UIDAI does not have the required statutory backing. It is noteworthy that “A verbatim record of proceedings was kept” but the Lok Sabha Secretariat did not share it when the same was sought under Right to Information Act, 2005.
Arun Jaitely, the finance minister expressed the need for a law to give “a statutory backing to the Aadhar platform” and to incorporate the “Aadhaar framework” in his budget speech (2016-17). He plans to do it through Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016.
It is relevant to recall that Secretary-General, Registrar (Law) and Joint Secretary (P&A) of National Human Rights Commission (NHRC) appeared before the Parliamentary Committee on 29th June 2011 as witnesses wherein Shri Bhartruhari Mahtab, M.P. presided as the Acting Chairman, of the Committee. NHRC officials raised the possible discrimination, security of biometric information and the implications on the individual‘s right to privacy, etc. Dr. Reetika Khera, an expert associated with Centre for Development Economics, Delhi School of Economics who appeared the Parliamentary Committee as a witness submitted,
“………exclusion is more on account of poor coverage of these schemes. Say, for instance, in the Public Distribution System, the Planning Commission says that only x‘ per cent of the rural population will get the BPL cards and because of that cap that is set at the Central level, we find that lots of people are excluded.”
Notably, Indian Banks Association appeared before it and discussed issues related to stipulations prescribed by the Ministry of Finance and the Reserve Bank of India for using aadhaar numbers for opening bank accounts; new account holders added through aadhaar numbers; and utility of aadhaar number in financial inclusion, social sector lending, etc.
It is relevant to note that members including Confederation of Indian Industry (CII) International Asset Reconstruction Company (IARC), Shriram Capital Limited, Canara HSBC Oriental Bank of Commerce Life Insurance Company Limited, Bharti Airtel and IBM India Pvt. Limited too appeared before the Parliamentary Committee wherein the major issues discussed included “legality of implementation of the UID (aadhaar) project before the law is enacted by the Parliament”.
It is apparent that the biometric aadhaar project is being bulldozed under the influence of transnational business enterprises and banks.
The fact is that the indiscriminate collection of biometric information for aadhaar is illegal. It turns citizens into subjects and worse than prisoners. The transfer of biometric information collected in the name of aadhaar to transnational business enterprises like Accenture, Safran Group and Ernst & Young compromises national interest and national security and makes all future Prime Ministers and other officials who will hold sensitive positions who will emerge from the pool of Indian residents in the future subject to surveillance by unaccountable and undemocratic transnational regimes.
Ernst & Young is a British company that has signed a contract with UIDAI swearing by Gandhi's talisman to express his concern for the poor. Its contract announces that 'We will provide a unique identity to over 113.9 crore (1.139 billion) people.' The ministry of planning, in its action taken report, has been quoted as having stated that 'the UIDAI has been authorised to enroll 60 crore (600 million) residents by March 2014' in the October 2013 report of the Parliamentary Standing Committee on Finance to Parliament. This provision of 113.9 crore people in the contract agreement was/is evidently a fraudulent one.
This came to light from a Right To Information reply dated December 5, 2013, wherein the UIDAI shared the contract agreement it signed on behalf of the President of India acting through the director-general of the UIDAI, the Planning Commission, the Government of India (which is the employer), on March 17, 2010 with the consortium consisting of Ms Ernst & Young Private Limited and Ms Netmagic Solutions Pvt Ltd wherein 'Ms Ernst & Young pvt ltd' is the lead partner and consultant.
When BJP was in the opposition, it had objected to undocumented migrants being enrolled in the UID/aadhaar database. Now that it is in Government in a remarkable turnaround, it is said, “the Aadhaar number or authentication (sic) shall not, however, confer any right of citizenship or domicile”. This implies that anyone can be enrolled and get numbers, domicile, illegality of migrants is not a barrier.
The submission of National Human Rights Commission (NHRC) in this regard on the National Identification Authority of India (NIAI) Bill, 2010 introduced in an effort to legalise the illegal activities of Unique Identification Authority of India (UIDAI) exposes he claims of the government. In a report titled “NHRC’s views on the NIAI Bill, 2010” it has been revealed that UID/aadhaar number has dangerous ramifications is quite relevant in this regard. NHRC’s view was presented to the Parliamentary Standing Committee (PSC) on Finance.
NHRC’s observation before the Parliamentary Standing Committee on Finance that UID/aadhaar Number underlined that it will lead to discrimination in the name of “delivery of various benefits and services” and “weaker sections of society”.
Contrary to the claims of Unique Identification Authority of India (UIDAI) that the collection of biometric information and its linkage with personal information of individuals without amendment to the Citizenship Act, 1955 as well as the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, appears to be beyond the scope of subordinate legislation, which needs to be examined in detail by Parliament -- according to the Parliamentary Standing Committee on Finance. This parliamentary panel has raised questions about the absence of a legal mandate for biometric data collection.
“This Bill is significantly different from the earlier Bill. This Bill confines itself only to governmental expenditure and that the real beneficiaries must get governmental expenditure.”
If Aadhaar Bill, 2016 is different from the National Identification Authority of India Bill 2010, why has latter Bill been withdrawn from the Rajya Sabha. Jaitley informed the Lok Sabha.
“The current proposal to make the “Aadhaar platform” the basis for accessing entitlements is oblivious to the uneasy state of biometrics which the UIDAI now admits it is researching.”
It is noteworthy that Unique Biometrics Competence Center (UBCC) was announced on the UIDAI’s website on August 13, 2015, where it is admitted that the Indian working population poses challenges to the use of biometrics, and so the UBCC was being set up to do research on biometrics. A report of the World Bank which was soon removed from its website stated that the rate of exclusion due to biometrics might be about 40% if identity systems were to be made the basis of access to entitlements.
In the meanwhile, although Constitution Benches have started sitting since 15th January 2016 after the intervention of Chief Justice of India, the birth of Constitution Bench for Right to Privacy and Aadhaar case continues to experience labour pains. Supreme Court’s website states that Aadhaar case is a “Five Judges Matter” but among the 10 Constitution Bench cases listed for hearing, it finds no mention despite the fact that a five-judge bench headed by Chief Justice of India wrote, "Since there is some urgency in the matter, we request the learned Chief Justice of India to constitute a Bench for the final hearing of these matters at the earliest". Unless these words are accorded due respect and attention, the meaning of these words of Court will suffer grave irreparable erosion.
In view of the “urgency” admitted and recorded by Supreme Court Bench of five judges headed by Chief Justice of India to the Right to Privacy and Aadhaar case, it appears inappropriate that even as the Court is to determine the legal status of Aadhaar that Indian residents are being coerced to accept Biometric Aadhaar Number as a fait accompli, as if Court too will have to act like a rubber stamp despite its legality having been questioned by Punjab & Haryana High Court and Parliamentary Committee on Finance that trashed The National Identification Authority of India Bill, 2010. Aadhaar Bill aims to turn Parliament into a rubber stamp as well.
Admittedly, there is still no law to replace the National Identification Authority of India Bill 2010 and even Aadhaar Bill, 2016 claims not to do so but the absence of a law on privacy and data protection reveals that cart remains parked before the horse.
My Call Detail Records and A Citizen’s Right to Privacy by Arun Jaitley as Leader of Opposition, Rajya Sabha. It must be recalled that referring to the incident of surveillance of his mobile phones, in an article published in Gujarati, Hindi, Urdu & English (Source: http://www.bjp.org), he wrote,
“Firstly, every citizen in India has the right to privacy. His right to privacy is an inherent aspect of his personal liberty. Interference in the right to privacy is interference in his personal liberty by a process which is not fair, just or reasonable. A person’s Call Detail Records can throw up details of several transactions. In the case of an average citizen, it can reflect on his relationships. In the case of a professional or a business person, it can reflect on his financial transactions. In the case of a journalist, it can reveal the identity of his sources. In the case of a politician, it can reveal the identity of the person with whom he has regular access. Every person has ‘a right to be left alone’.”
Jaitley added,
“In a liberal society, there is no place for those who peep into the private affairs of individuals. No one has a right to know who another communicates with him. The nature of communication, the identity of persons being communicated with and frequency of communications would be a serious breach of privacy….This incident throws up another legitimate fear. We are now entering the era of the Adhaar number. The Government has recently made the existence of the Adhaar number as a condition precedent for undertaking several activities; from registering marriages to execution of property documents. Will those who encroach upon the affairs of others be able to get access to bank accounts and other important details by breaking into the system? If this ever becomes possible the consequences would be far messier.”
Revealing how power clouds human intelligence, Jaitley and his ministerial colleagues do not comprehend messier consequences of the breach of privacy anymore. He wrote the article on April 17, 2013. It is available on BJP’s website demonstrating the gulf between what is preached and what is practised.
Prime Minister Narendra Modi’s U-turn on 12 digits biometric aadhaar number which admittedly poses threat to national security after 21st May, 2014 when BJP led coalition became the ruling party at the centre. Considerations other than truth have given birth to Modi government’s faith in biometric aadhaar. The issuance of aadhaar numbers to the large number of residents of India does not make it a program in the national interest.
Following twelve questions reveal why civil liberties and human rights movements are against aadhaar related projects and aadhaar like projects across the world:
Why do Indians we need Unique Identification (UID)-Aadhaar Number as a 16th identity proof which, in fact, is an identifier and not an identity proof?
Doesn’t linking of LPG subsidy with direct benefit scheme, Jan Dhan yojana with aadhar made it “mandatory” contrary to its continued claim in aadhaar enrolment form that it is “voluntary” tantamount to breach of trust?
Why present and future Indian citizens should be allowed profiled based on biometric data? Are citizens worse than prisoners? The indiscriminate collection of biometrics of prisoners is not allowed as per the Identification of Prisoners Act.
Why have countries like the UK, Australia, France, the Philippines and Europe has rejected UID/aadhaar like projects? These countries have rejected identity projects that closely resemble the UID project because of its implications of civil liberty, the prohibitive cost, the untested technology and because it will make the people subservient to the state. What is the reason for thinking that Indian citizens can bear these risks and costs?
How can UIDAI and UID/aadhaar project be deemed legal and legitimate if it has been disapproved as a violation of the prerogative of the Parliament by Parliamentary Committee on Finance and the Supreme Court has found merit in objections aadhaar. The Parliamentary Committee denounced the UID/Aadhaar project as ‘unethical and violative of Parliament’s prerogatives’ and as akin to an ordinance when the Parliament is in session.’ The government has not come up with a revised law, and there is in fact no law that, today, governs the project. Isn’t the protection of the citizen by law important?
Who will be held accountable for the ongoing violation of citizen’s privacy and for the robbery of their personal sensitive data?
The UID/aadhaar project poses a threat to the privacy rights of citizens. Yet, the project is steaming ahead without any law on privacy in place and is believed to be breaching many privacy principles.
If violation of confidentiality promised in Section 15 of Census Act is done with impunity, how can census like projects like UID/aadhaar exercise be trusted?
What is the guarantee that whosoever controls Centralized Database of Indians will not become autocrats like Hosni Mubarak and Asif Ali Zardari who handed over their citizens’ database to US Government?
What is the guarantee that the Centralized Database of Indians will not be stolen as has happened in the case of Greece?
Isn’t the entire UID/aadhaar related exercise meant to provide market for biometric and surveillance technology companies and World Bank’s partners like International Business Machines (IBM), Gemalto, Intel, Safran Group, Microsoft, and Pfizer, France and South Korea? There is an extraordinary dependence on corporations, many of them companies with close links with foreign intelligence agencies. How are the implications of this factor being dealt with?
Isn’t linking of UID/aadhaar with land titles, National Intelligence Grid, etc an assault to rights of citizens? The ubiquity that the UIDAI is trying to get for the UID/aadhaar — where it will be linked with the setups like the Crime and Criminal Tracking Network & Systems (CCTNS), the NATGRID– where are the protections for the citizen from an invasive state?
Who will guarantee that the centralized database of UID/aadhaar will not be used for the holocaust, genocide, communal and ethnic riots, targeting of minorities of all ilk and political dissidents of all shades?
Among many questions that have emerged, one is: How many MPs, MLAs, Cabinet Ministers, judges, officials of security establishment chosen to get themselves biometrically profiled under illegal and illegitimate aadhaar scheme
Why is biometric technology being treated as neutral as if it has no politics, or no implications for civil liberties when it is known that it most certainly does?
Will aadhar architecture based GSTN safeguard Indian State’s sovereign function of tax collection?
It is apparent that the structural basis is being laid out for future authoritarianism through despotic projects at the behest of the ungovernable and unregulated foreign biometric and surveillance technology companies. The collection of biometric data supports the ideology of biological determinism with its implicit and explicit faith in biometric technologies. There are hitherto unacknowledged dangers of trusting such technological advances for determining social policies.
The unfolding of an automatic identification regime is being facilitated through aadhaar in the face of corporate media unquestionably promoting ungovernable and unregulated identification and surveillance technology companies. While providing for dignified treatment of the citizens of India, Section 15 of the Census Act establishes that “Records of census not open to inspection nor admissible in evidence”. It reads: No person shall have a right to inspect any book, register or record made by a census-officer in the discharge of his duty as such, or any schedule delivered under section 10 and notwithstanding anything to the contrary in the Indian Evidence Act, 1872, no entry in any such book, register, record or schedule shall be admissible as evidence in any civil proceeding whatsoever or in any criminal proceeding other than a prosecution under this Act or any other law for any act or omission which constitutes an offence under this Act.”
Demolishing this dignity of the citizens, the Union Home Ministry is dehumanizing citizens by according them a status inferior to that of prisoners by facilitating the merger of aadhaar with National Population Register, Census and NATGRID. The creation of Centralized Identities Data Register (CIDR) of UID creates a bullying Database and Surveillance State through its ‘black box’. There is a compelling logic for citizens to safeguard their civil liberties and human rights from such illegitimate advances of a bullying State.
It has been established that UID/aadhaar does not have any basis contrary to its name, aadhaar which means foundation or base; it is legally niraadhaar (baseless). Vekaiah Naidu records saying, "The Aadhaar card instead of becoming Janaadhar became Niraadhaar".
These developments make a book SpyChips: How Major Corporations and Government Plan to Track Your Every Move with RFID by Katherine Albrecht and Liz McIntyre quite relevant. The authors forewarn us of how we are being made to “imagine a world of no privacy.
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