Aadhaar: Is the Modi govt moving against the Supreme Court order?

BS Post: 122 , Dated : 24 September, 2014, Mumbai. 

Artical of Gopal Krishna a member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010.

The Supreme Court says Aadhaar is not mandatory for public services. Yet, like the Congress government, Modi too is forcing the biometric ID.

The Pradhan Mantri Jan Dhan Yojana (PMJDY) is riding on 12-digit biometric Aadhaar number project, which itself is controversial, legally contested, disapproved by the Parliamentary Standing Committee on Finance and found questionable by the judiciary.

There is a categorical order of the Supreme Court reiterated at least two occasions stating that Aadhaar cannot be made mandatory.

But the PMJDY brochure reads “Aadhaar number will be seeded to make account ready for (Direct Benefits Transfers) DBT payment”. It is meant to be “the single point for receipt” for all DBT.  Isn’t this against the Supreme Court Judgement? And what about Modi's own views on Aadhaar? According to a report from Hindustan Times, while addressing an election rally in Bengaluru, Modi had said, “Congress-led United Progressive Alliance (UPA) had 'failed to convince the Supreme Court' and thus the (Aadhaar) scheme failed.”

Even, Nirmala Sitharaman, the then spokeswoman for Bharatiya Janata Party (BJP), had told the newspaper that “Aadhaar was being pushed by the Union government through an executive order and as the chief minister of Gujarat, he (Modi) was expected to implement the programme in the state. But that does not mean he will not question it and underline what is wrong. If he had not implemented it in Gujarat, he would have been blamed for delaying it."

The Supreme Court has passed an interim order on 23 September 2013 stating that availing of no public services can be mandatorily be linked to Aadhaar. On 24 March 2014, the Court restrained the central government and the Unique Identification Authority of India (UIDAI) from sharing data with any third party or agency, while dealing with a case filed by Central Bureau of Investigation (CBI). However, the UIDAI has already shared all the data with foreign and Indian private companies like Accenture, L1 Identities Solution and Sagem Morpho of Safran Group and Ernst & Young among others, who can keep this data for at least seven years. 

Meanwhile, the New Indian Express has reported that a petition has been filed by VE Rahul Goutham, a Class-X student of Kendriya Vidyalaya, Pattam, Thiruvananthapuram before the Kerala High Court against the insistence by the authorities that the Aadhaar card number be included in the application form for the National Talent Search Examination, Stage-I. The petitioner has rightly cited Supreme Court’s order saying, “in the meanwhile, no person should suffer for not getting Aadhaar card, in spite of the fact that some authority had issued a circular making it mandatory. When a person applies for Aadhaar Card voluntarily, it may be checked whether that person is entitled for it under the law, and the card should not be given to any illegal immigrant” and has submitted that insistence on Aadhaar is a violation of the Court’s order.

In fact, following the direction issued to the Union of India and Union Territory of Chandigarh by Punjab and Haryana High Court in the matter of Civil Writ Petition 569 of 2013 filed in the High Court against Union of India and others, the Executive Order for making Unique Identification (UID)/Aadhaar mandatory has been withdrawn. In its order the bench of Chief Justice AK Sikri and Justice Rakesh Kumar Jain dated 19 February 2013 had noted that the petition “raises a pure question of law.” Since the Executive Order was withdrawn, the case too was disposed of 2 March 2013 with a two page order.  The Order observes, “In this writ petition filed as PIL, the petitioner has challenged the vires of notification issued by Union of India for making it compulsory to have UID Cards."

All the High Courts, which transferred the cases filed against Aadhaar to the Supreme Court did so before its orders of 23 September 2013 and 24 March 2014. Now, it is a question of enforcement of the apex court’s order, which is being violated with impunity setting a very unhealthy precedent.

Arguing in the Supreme Court, Senior advocate Shyam Divan stated that "there is no statute to back the project" and even if there were one, the statute would be violative of Articles 14 and 21 of the Constitution as the project enables surveillance of individuals and impinges upon right to human dignity. Maintaining that whenever state seeks to impinge upon fundamental rights, its action must be backed by statute and not mere executive fiat, the senior advocate said, "Here, the action under the impugned project of collecting personal biometric information without statutory backing is ultra vires even where anindividual voluntarily agrees to part with biometric information." But the silence of Justice KS Puttaswamy, retired judge of the Karnataka High Court as well as Divan and other petitioners appears intriguing after the new government took charge.

Why are citizens being made to seek Aadhaar, which is admittedly only a residence proof? How does absence of resident proof consequent into denial of citizen's entitlement. The students of law are routinely taught by their law professors that the Supreme Court’s order is the law of the land. Aadhaar matter seems to be demonstrating that it is no more the case.   

Is India an island where news from other nations does reach the ear drums of decision makers in India? It is such deafness that contributed to grant of permission for testing of war chemicals in Bhopal.

Given the fact that Supreme Court has not scheduled any specific three judge bench to hear the Aadhaar case filed by Justice Puttaswamy, relying on a letter of Justice Mandagadde Rama Jois, former Chief Justice of the Punjab and Haryana High Court, currently a Member of Parliament, the Kerala High Court has to rise the occasion and decide whether Supreme Court's order is supreme or an illegitimate order of the government is supreme. Besides Justice Puttaswamy, Major General SG Vombatkere, who retired as Additional Director General, Discipline and Vigilance in Army Headquarters, has also filed a petition against the identifier project branded ‘Aadhaar’.

Relying on the pre-existing orders of the Supreme Court, the report of the Parliamentary Standing Committee on Finance, Kerala High Court has a historic opportunity to restrain the Centre, Planning Commission and the UIDAI from issuing biometric Aadhaar numbers by way of an executive notification of 28 January 2009. The decision can save Indians from the most dangerous transaction being entered into through the unfolding Data Grid.

Indian Prime Minister Narendra Modi’s is visiting the US. It would be timely to recollect the visit of Barack Obama, President of US with a 200-strong business delegation during 6-9 November 2010 to expanding US exports and increase investments by US companies in India.

Some 20 business deals worth around $10 billion were on the horizon but notably almost $15 billion worth deals were signed as per the official statement from the White House.

Among these deals were “The Unique Identification Project: L-1 Identity Solutions, headquartered in Stamford, Connecticut, and another US-headquartered company, lead two of the three vendor consortia, which have been pre-qualified by the Unique Identity Authority of India (UIDAI) for the first phase of an effort to register Indian residents with a 12-digit unique number using biometric identifiers. Unprecedented in scale, seeking to register 1.2 billion Indian residents, the UID program aims to enhance delivery of government services in India.”

Out of these two companies L1 has now been taken over by French conglomerate Safran Group.

The search for the real beneficial owner or controller of L1 can be quite revealing. As to the reference of “another US-headquartered company, lead two of the three vendor consortia” and its identity, the White House statement was silent.

Both Obama and Dr Manmohan Singh, the then Indian Prime Minister agreed that “in an increasingly interconnected world, it is vital to safeguard areas of the sea, air, and space beyond national jurisdiction to ensure the security and prosperity of nations”.Admittedly, the bio-metric Aadhaar database is being stored on a cloud, which is “beyond national jurisdiction”.  In fact,  it is under the US jurisdiction and beyond India’s jurisdiction.

The new government has seen similar merits in UID. However, questions that merits attention of Indian Prime Minister Narendra Modi and the National Security Advisor is:How many countries in West Asia have a biometric ID database like Aadhaar, National Population Register (NPR) and digital identity? What are its ramifications for nations’ sovereignty? Can’t friends become foes of super powers and vice versa? If the preventive steps are not taken before such situation emerges, the biometric database of all future leaders and officials of India can reach countries whose governments are commercial czars in real time. Human history has been testimony to the possibility of the latter becoming inimical to India’s over all interest to safeguard their supreme commercial interests. They say commerce is war by other means.

    

Remember, the French Government had to abandon biometric profiling of its citizens after the French Constitutional Council found the law proposing the introduction of a new biometric ID for French citizens as unconstitutional. Incidentally, a French conglomerate is facilitating something in India, which has been outlawed in France. In India, it is headquartered New Delhi. Likewise, the Supreme Court of the Philippines struck down a biometric-based national ID system as unconstitutional on grounds of invasion of privacy.

In his 2009-10 Budget Speech, Pranab Mukherjee as Finance Minister had announced, “The UIDAI will set up an online data base with identity and biometric details of Indian residents and provide enrollment and verification services across the country.” Like the previous government, the Modi government too is deluded into believing that “online data base” of residents of India (inclusive of citizens) it will safeguard the sovereignty of the Republic.

The Finance Ministry’s 108-page White Paper on Black Money under the title ‘Strategies for Curbing Generation of Black Money through Illegal or Criminal Activities’ reads: “While efforts such as UID and direct transfer of subsidies will stop leakages in some sectors, in other sectors the problem will have to be addressed differently”. What is not acknowledged is that leakages are not problems of verification of identity but problems of eligibility. The new government has failed to appreciate as well.

Besides this it is yet to be conclusively established as to whether or not biometric, surveillance, identification and security technology companies are involved in amassing Black Money as part of Black Economy-through electoral finance and other unrecorded means.

Under the chapter, ‘Creating an appropriate legislative framework’ the White Paper elaborates on the role of the Unique Identity (UID)-Aadhaar project. The relevant text of the White Paper at page 49 reads: “The Aadhaar platform will facilitate payments under the Mahatma Gandhi National Rural Employment Guarantee Act (MG-NREGA); old age, widow and disability pensions; and scholarships to be made directly into beneficiary accounts in selected areas. This initiative will cut down corruption and the generation of black money in India.” It is ironical that Unique Identity (UID)-Aadhaar project is mentioned under the title ‘Creating an appropriate legislative framework’ because Aadhaar and its Centralised Identities Data Register (CIDR) is being prepared outside any ‘appropriate legislative framework’.  

The recommendations of the Committee Headed by Chairman, Central Board for Direct Taxes (CBDT) on Black Money, at page 84 states: “The steps taken in recent years for simplifying and placing the administrative procedures concerning taxation, trade and tariffs and social transfers on UID based electronic interface, free of discretion and bureaucratic delays, are vital building blocks of the approach for tackling corruption and black money in our country.” Such claims manifest short term and long term vested interests in the UID-Aadhaar project aimed at creating ‘solutions architecture’ through linguistic corruption in the form of proposed National Information Utilities (NIUs) by Union Finance Ministry’s Technology Advisory Group on Unique projects. These NIUs are envisaged as private companies with public purpose and with profit making as the motive but not profit maximising. The construction of this sentence betrays the ulterior motives of these interests. It appears that words indeed have meaning, which the masters give to it as Lewis Carroll famously noted in her work Alice in Wonderland, a classic case of nominalism, a tendency of the ruling elite to decide on the meaning of a word.

Eight AEBAS systems provided by UIDAI have been installed at six gates of Venkaiah Naidu headed Urban Development Ministry. Was Naidu misleading the Parliament and the citizens of the country by contending that Aadhaar is “niraadhar” on the floor of the House? BJP was either misleading the country then or its doing so now.

The Planning Commission, whose expiry has been announced by Prime Minister Modi, is in the process of reviewing the state-wise and Union Territory wise progress of Aadhaar after Cabinet Committee on Economic Affairs (CCEA) cleared phase-V of the UID scheme to undertake enrollments in Uttar Pradesh, Bihar, Chhattisgarh and Uttarakhand on 10 September 2014. UIDAI has been given a target of ensuring enrollment of 100 crore Indian residents by the end of 2015 nay “at the earliest”.

In a country, governed by rule of law, when there is no ambiguity about the order of the apex court, how is it that Aadhaar related programs are being made mandatory? Is law still the king or the new kings-the Big Data companies- have usurped the state of affairs in the most non-violent coup imaginable?