MoU with illegal and illegitimate UIDAI

Citizens Forum for Civil Liberties (CFCL)

To

Shri Raman Singh
Chief Minister
Government of Chhattisgarh
Raipur

Date: February 15, 2013

Subject- MoU with illegal and illegitimate UIDAI

Sir,

This is with reference to your letter to the Prime Minister Dr Manmohan Singh dated November 29, 2012, the attached Memorandum of Understanding (MoU) dated April 10, 2010 signed by Government of Chhattisgarh with illegal and illegitimate UIDAI, the report of the Shri Yashwant Sinha headed The Parliamentary Standing Committee (PSC) on Finance submitted to the Parliament on December 13, 2011 and the Public Interest Litigation filed by Justice K S Puttaswamy, former judge of the Karnataka High Court on the basis of the letter of Justice M Rama Jois, Member of Parliament.Relevant documents attached.

I wish to place on record my appreciation for your opposition to the implementation of cash subsidy transfer under Public Distribution System (PDS), saying it was vulnerable to "misuse".

You are quite right in saying that "There are lots of problems in implementation of cash subsidy transfer under PDS. In my view, fair price shops under PDS are the only viable and convenient option for access to foodgrains in rural areas in the State…Any changes in present PDS system should only be implemented if the same result in better convenience to the beneficiaries. Also, since implementation of PDS at state level is the responsibility of State Government, any changes in the system should be done only with the consent of State Government."

I wish to draw your attention towards the Writ Petition (Civil) of Justice K S Puttaswamy, former judge of the Karnataka High Court that was heard on November 30, 2012 before Hon’ble Supreme Court’s bench of Chief Justice Altamas Kabir and Justice J. Chelameswar echoed some of the concerns raised by seventeen eminent citizens like Justice V R Krishna, Justice A P Shah, Prof. Upendra Baxi and the findings of the Parliamentary Standing on Finance in the matter of the implementation of world biggest ever biometric data based identification exercise. The bench issued an order in the case of Justice Puttaswamy (retd) Versus Union of India saying, “Issue notice on the writ petition as also on the prayer for interim relief. Leave is given to the petitioners to add additional grounds." The order is attached.

The petition refers to a letter of a member of Parliament, Rajya Sabha, Justice M. Rama Jois, addressed a letter to the Prime Minister in this regard on 19.01.2011 pointing out to the constitutional impropriety of issuing Aadhar Numbers even when the Bill aforesaid was pending before the parliament. But surprisingly, to the said letter, he received a reply dated January 29, 2011 simply stating that the Prime Minister has received his letter without replying to the points raised in his letter.

Justice Puttaswamy is a former Judge of the Karnataka High Court since 1977 and after retirement he was Vice Chairman of Central Administrative Tribunal, Bangalore Bench, Bangalore. He was Chairman of Andhra Pradesh Administrative Tribunal, Hyderabad and also Chairman, Andhra Pradesh Backward Class Commission. The petitioner wants that the executive and legislature must function within the frame work of the Constitutional provisions so that Government “does not circumvent the legislature to avoid discussion, debate and voting in the Parliament and thereby render the legislature redundant or purposeless.”

The writ petition submitted, “the petitioner states that collecting Biometric information as a condition precedent for the issue of Aadhar number is an invasion of the right to privacy of citizens and therefore this can be done only by the law enacted by the Parliament and beyond the executive power.”

I submit that taking note of the fact that “Aadhar number is issued under Section 3 of the (UID) Bill to a non citizen on the ground that he is residing in this Country, he becomes entitled to the fundamental rights guaranteed under Article 14 and 21 of the Constitution as fundamental rights under Article 14 and 21 are available to all persons in India and consequently also right to a remedy under Article 32 of the constitution of India”, the petition submits, “it is a matter of great security concern for the nation also. When such is the magnitude of the provisions of the Bill, still it is sought to be implemented by the exercise of executive power without any discussion, debate and the approval by both the Houses of the Parliament.”

I submit that the petition asks the Supreme Court to clarify as to, “what is the contours of the executive powers of the Central Government under Article 73 and whether the executive power vested in the Union can be exercised so as to adversely affect the fundamental right to privacy and in a manner so as to bye-pass the legislative power of the Parliament? And render the Bill Purposeless. “The petitioners are constrained to state that the subject matter involved in the Bill is of serious consequences to the right to privacy of the citizens of the Country and also right to secrecy of their personal matter and involves colossal expenditure to the Union.”

It asks “whether the executive power could be used in a manner so as to make the legislative power redundant or in other words, whether by the exercise of executive power, the executive can circumvent the Parliament? However, having regard to the far reaching importance of the matter which is highly controversial and involves colossal expenditure, which is sure to become a waste if and when the Parliament rejects the Bill, or for any reason the scheme becomes impracticable rendering the enormous money spent till then a National Waste.”

The petition prays Hon’ble Supreme Court for issuance of “a writ in the nature of mandamus restraining the respondents from issuing Aadhaar Numbers by way of implementing its executive order dated 28.01.2009 which tantamount to implementing the provisions of the National Identification Authority of India Bill, 2010 pending before the Parliament until and unless the said Bill is considered and passed by the parliament and becomes an Act of parliament.” On the grounds that “The scheme formulated by the Central Government in its notification dated 28.01.2009 constituting Unique Identification Authority of India [UIDAI] and authorizing it to issue aadhaar numbers which adversely affect the fundamental right to privacy flowing from Article 21 of the constitution, cannot be implemented unless it becomes a law enacted by the Parliament.”

On the ground that “When the Government has introduced the National Identification Authority of India Bill, 2010 in the Rajya Sabha for the same purpose for which the executive order dated 28.01.2009 was issued, and the same has been rejected by the Standing Committee, Finance, to which it was referred, can still implement its executive order without bringing the Bill for consideration before the Parliament for purpose of discussion, debate and passing by it and before it became an Act of parliament.”

It may be noted that UID related petitions questioning its legality are pending in the High Court of Punjab and Haryana, High Courts of Tamil Nadu, Karnataka and Maharashtra as well.

I submit that I am writing on behalf of Citizens Forum for Civil Liberties (CFCL) has been campaigning against unregulated biometric, surveillance and identification technology companies since 2010 and had appeared before the Parliamentary Standing Committee, Finance in this regard. Justice M. Rama Jois, MP, Rajya Sabha had shared his views with the Parliamentary Committee as well.

CFCL has consistently underlined that the silence of the States which are quite vocal about threats to federal structure from Union Home Ministry‘s National Counter Terrorism Centre (NCTC) and National Intelligence Grid (NATGRID) that integrates 21 sets of databases in the matter of the creation of UID’s Centralized Identities Data Register (CIDR) disregarding the fact that Planning Commission’s CIDR and Home Ministry’s National Population Register (NPR) is inexplicable.

I submit that given the fact that convergence of citizens’ personal sensitive information is being converged and is making right to have citizens’ rights dependent on State’s whims and fancies at the behest of ungovernable technology companies, States must un-sign the MoUs they have signed with the UIDAI whose legality is questionable to protect the rights of the citizens of their respective States. Although belated legislative assemblies, councils, panchayati raj institutions, Gram Sabhas, universities etc must examine the illegality and illegitimacy of biometric data based identifications of citizens and put a stay on the implementation of UID and NPR related projects.

I am enclosing the report of the report of the Shri Yashwant Sinha headed The Parliamentary Standing Committee (PSC) on Finance

I wish to draw has taken on board studies done in the UK on the identity scheme that was begun and later withdrawn in May 2010 when the proponents of ID project were defeated in the elections. The Committee took note of the problems like "(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" in undertaking such projects.

I submit that the implementation of UID projects and related schemes is illegitimate and autocratic without legislative mandate.

I submit that echoing massive opposition of informed citizens and their concerns, the Parliamentary Committee has noted that the government has “admitted that (a) no committee has been constituted to study the financial implications of the UID scheme; and (b) comparative costs of the aadhaar number and various existing ID documents are also not available.” In view of such glaring omissions, the 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.

I submit that the State Government is betraying complete ignorance about the global developments against biometric data collection.  UK, Australia, Philippines, USA and China have abandoned biometric data based National ID projects. It is already admitted that it is the only project in the world that is using fusion biometrics, which distinguishes it from anything happening elsewhere. It has also been repeatedly established that biometric technology is inherently fallible.    

I submit that once such a database based on biometrics is ready it can be used to eliminate minority communities, migrants and political adversaries by some regime which finds them unsuitable for their political projects. The fact is a centralized electronic database and privacy both are conceptually contradictory. It is advisable to let it remain in decentralized silos something which even the central government’s Discussion Paper on Privacy underlined.  The fact is creation of Centralized Identities Data Register will create a bullying Database and Surveillance State through its ‘black box’.

In a related development, the unanimous decision of 17 judges the European Court of Human Rights (ECHR) about violation of the right to privacy and family life by biometric profile retention in criminal justice databanks, they found 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 offenses, failed to strike a fair balance between competing public and private interests and ruled that the United Kingdom had “overstepped any acceptable margin of appreciation” in this regard. This decision is relevant for UID, National Population Register (NPR), Human DNA Profiling and voice print through Radio Frequency Identification (RFID).

In the era of Paid News journalism, CFCL deprecates corporate media’s contempt towards legislative bodies whose disapproval for the biometric data collection and UID/Aadhaar has conspicuously been ignored. Media practitioners seem to reflect manifest bias in favor undemocratic practices like creation of biometric database.

I submit that democratic mandate is against projects like UID and related initiatives like National Population Register (NPR), National Intelligence Grid, Human DNA Profiling, National Counter Terrorism Centre (NCTC), Land Titling Bill, 2011 and Public Information Infrastructure and Innovations.

In view of the above, I urge you to disassociate Government of Chhattisgarh from the Memorandum of Understanding (MoU) dated April 10, 2010 that it signed with illegal and illegitimate UIDAI as a logic step to your letter to the Prime Minister in the matter of UID based cash transfer of social benefits.

I will be happy to share relevant documents in this regard and to meet you to brief you about the same.  

Yours faithfully

Gopal Krishna

Citizens Forum for Civil Liberties (CFCL)

Mb: 9818089660

E-mail: krishna1715@gmail.com

New Delhi-110016  

Phone: +91-11-26517814, Fax: +91-11-26517814

Cc
Cc
Hon' ble Governor, Government of Chhatisgarh  

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