Attorney General’s opinion on legality of UIDAI no more valid



Citizens Forum for Civil Liberties (CFCL)
To

Dr Manmohan Singh
Cabinet Committee on Unique Identification Authority of India related issues
Prime Minister's Council on UIDAI
Government of India
New Delhi

Shri A.K. Antony, Minister of Defence
Group of Ministers (GoM) regarding Issue of Resident Identity Cards under scheme of National Population Register (NPR)
Government of India
New Delhi

Shri Montek Singh Ahluwalia,
Deputy Chairman,
Planning Commission
Special Invitee
Cabinet Committee on Unique Identification Authority of India related issues
Group of Ministers (GoM) regarding Issue of Resident Identity Cards under NPR Scheme 
Government of India
New Delhi

Shri Nandan Nilekani,
Chairman,
Unique Identification Authority of India
Planning Commission
Special Invitee
Cabinet Committee on Unique Identification Authority of India related issues
Group of Ministers (GoM) regarding Issue of Resident Identity Cards under NPR Scheme 
Government of India 
New Delhi

Shri R K Singh
Secretary
Union Ministry of Home Affairs  
Government of India 
New Delhi

Dr. C. Chandramouli  
Registrar General and Census Commissioner of India
Union Ministry of Home Affairs  
Government of India 
New Delhi
Date: March 24, 2013

Subject- Attorney General’s opinion on legality of UIDAI no more valid & violation of citizens’ rights from creation and collation of biometric information based UID/AADHAAR number & National Population Register (NPR)

Sir,

This is to draw your attention towards the reply of Union Minister of State for Planning, Science & Technology and Earth Sciences, Dr. Ashwani Kumar in the Lok Sabha on August 24, 2011 wherein he informed the Parliament about the commencement of operation of Unique Identification Authority of India (UIDAI) before the enactment of the National Identification Authority Bill, 2010. He replied, “The Attorney General (AG) has opined that the UIDAI could continue with its work till the enactment of the Bill.” (italics supplied)

I submit that since the minister had assured the Parliament based on the legal opinion of the Attorney General that the “UIDAI could continue with its work till the enactment of the Bill” and now since the Parliamentary Standing Committee on Finance that has rejected The National Identification Authority of India Bill, 2010 questioning the legality of UIDAI, UID/AADHAAR project and the act of subordinate legislation for biometric data collection, there is no legal basis for the continued work of the UIDAI.

I submit that Attorney General’s opinion provided defense of UIDAI’s work only till the enactment of the Bill. This defence too now stands exhausted.
I submit that on February 11, 2011, Shri Nandan Nilekani, Chairman, UIDAI and Shri R.S. Sharma, Director General, UIDAI besides the officials of Union Ministry of Planning had appeared before the Parliamentary Standing Committee on Finance. The report of the Committee which was presented to the Parliament on December 13, 2011 records, “The Committee took evidence of the representatives of the Ministry of Planning and Unique Identification Authority of India (UIDAI) in connection with the examination of the National Identification Authority of India Bill, 2010. Major issues discussed with the representatives included, need for providing statutory status to the Unique Identification Authority of India (UIDAI); Definition of ‘Resident‘; provision for de-activating the Aadhaar Number; collection of demographic information and biometric information; nature of enrolment and special measures for enrolment of weaker sections. The Chairman directed the representatives to furnish replies to the points raised during the sitting within one week. The witnesses then withdrew. A verbatim record of proceedings was kept.”  

I submit that the Bill introduced on 3rd December, 2010 in the Rajya Sabha was meant for legalizing and legitimizing the ongoing work done by Planning Commission’s Unique Identification Authority of India (UIDAI) since January 28, 2009 as is evident from clause 57 of the Bill. The rejection of the Bill reveals that UIDAI officials could not defend the legally indefensible work on UIDAI without statutory status. The Clause 57 of the Bill reads:Anything done or any action taken by the Central Government under the Resolution of the Government of India, Planning Commission bearing notification number A-43011/02/ 2009-Admin.I, dated the 28th January, 2009, shall be deemed to have been done or taken under the corresponding provisions of this Act.” Since this provision along with the Bill has been rejected the UIDAI itself has become legally indefensible.  

I wish to inform you that I had given my testimony before this Parliamentary Standing Committee on behalf of Citizens Forum for Civil Liberties (CFCL).

I submit that the Bill stated that it was meant to “to provide for the establishment of the National Identification Authority of India for the purpose of issuing identification numbers to individuals residing in India and to certain other classes of individuals and manner of authentication of such individuals to facilitate access to benefits and services to such individuals to which they are entitled and for matter connected therewith or incidental thereto.” The Bill did not define “to certain other classes of individuals”.

I submit that responding to the question by Shri Magunta Sreenivasulu Reddy, Member of Parliament, Indian National Congress from Ongole, Andhra Pradesh as to “whether there is a demand to stop the biometric enrolment of citizens till the National Identification Authority of India Bill is finalized”, the Minister replied, “Yes, Sir. The matter regarding withholding the issue of Aadhaar numbers until passing of National identification Authority Bill, 2010 was raised in the Rajya Sabha on 18.03.11 by Shri Rama Jois, MP (RS) as a Special Mention. The Hon’ble Member has also made references in this regard to the Standing Committee on Finance and to the Prime Minister’s Office.”

I also wish to draw your attention towards the acceptance of the petition of CFCL by the Parliamentary Standing Committee on Subordinate Legislation with regard biometric data collection related to Planning Commission's Aadhaar/Unique Identification (UID) Number and Home Ministry's National Population Register (NPR) besides the order of the National Human Rights Commission (NHRC) in Case No. 349/90/0/2012/OC dated December 27, 2012.

I submit that the letter from Parliamentary Standing Committee on Subordinate Legislation reads: "I have received a copy of your petition (118 pages) regarding Subordinate Legislation for Biometric Identity Card NRIC and Aadhhar/UID IS illegal & illegitimate and Constitutional, Legal, Historical & Technological Reasons Against UID/Aadhaar Scheme on 18.3.2013."

I submit that in a related development, in an order date December 27, 2012 addressed to Secretary, Union Ministry of Home Affairs, National Human Rights Commission (NHRC) has communicated human rights concerns regarding UID and Radio Frequency Identification (RFID) submitted to it by CFCL. Earlier, NHRC had expressed its deep concerns and apprehensions about UID and "biometric information" in its submission before the Parliamentary Standing Committee on Finance. 

I submit that in the matter of now rejected National Identification Authority of India (NIAI) Bill, 2010, “NHRC’s views on the NIAI Bill, 2010″ in the Human Rights Newsletter (Vol. 18 No.8, August 2011) reveals 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. The PSC submitted its report to the Parliament on December 13, 2011 rejecting the UID Bill.

I submit that echoing NHRC’s view on “need for protection of information” and “the possibility of tampering with stored biometric information” in paragraph 5 (page no. 7 of the NHRC newsletter) and “disclosure of information in the interest of national security” mentioned in paragraph 9 (page no.8 of the newsletter), the Central Government’s Approach Paper for Legislation on Privacy dated October 13, 2010 admits, “India does not currently have a general data protection statute” as per information received from Union Ministry of Personnel, Public Grievances and Pensions through Letter Reference No.071/1/2010/-IR dated October 18, 2010.

I submit that on UID Number, the Approach Paper on Privacy Bill stated, “Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralized manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage. However, all this is likely to change with the implementation of the UID Project. One of the inevitable consequences of the UID Project will be that the UID Number will unify multiple databases. As more and more agencies of the government sign on to the UID Project, the UID Number will become the common thread that links all those databases together. Over time, private enterprise could also adopt the UID Number as an identifier for the purposes of the delivery of their services or even for enrolment as a customer.” The Approach Paper on Privacy Bill discloses, “Once this happens, the separation of data that currently exists between multiple databases will vanish.” This poses a threat to the identity of citizens and the idea of residents of the state as private persons will be forever abandoned.

I submit that in their testimony before the Parliamentary Standing Committee on Finance on June 29, 2011, Shri Rajiv Sharma, Secretary General, NHRC, Shri A.K. Garg, Registrar (Law), NHRC and Shri J.P. Meena, Joint Secretary (P&A), NHRC expressed their concerns. The report presented to the Parliament on December 13, 2011 records, “The Committee heard the representatives of the National Human Rights Commission on “The National Identification Authority of India Bill, 2010”. The major issues discussed during the sitting broadly related to nature, objective and beneficiaries of aadhaar number; possible discrimination and specific provisions that are required to be built in; safeguards needed for securing the stored information by the proposed National Identification Authority of India; implications of the provisions of the Bill on the individual‘s right to privacy, etc.”

I submit that in a setback to efforts to bulldoze UID and related schemes, 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.

I wish to inform you that in its order the bench of Justice A K Sikri, Chief Justice and Justice Rakesh Kumar Jain dated February 19, 2013 had not noted that the petition “raises a pure question of law.” Since the Executive Order was withdrawn, the case too was disposed of March 2, 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." It is further observed in the order that “Second issue raised in this petition is that vide order dated 5.12.2012, respondent No.3 i.e. Deputy Commissioner, U.T., Chandigarh has given directions to the Branch In charge Registration-cum-Accountant, office of Registering & Licensing Authority, Chandigarh not to accept any application for registration of vehicle and grant of learner/regular driving licence without UID card.” 

I submit that such attempts to make UID/Aadhaar have emerged as an act of bullying by the government agencies.

I submit that the petition before the Parliamentary Standing Committee on Subordinate legislation draws attention towards how all the residents and citizens of India are being made subordinate to prisoner’s status by the ongoing collection of their “biometric information” that includes finger prints, iris scan for permanent storage in a Centralized Identities Data Register (CIDR) and National Population Register (NPR). This is being done ‘as per an approved strategy” by Planning Commission and Union Ministry of Home Affairs without any legal mandate.   

I am attaching the following six papers for your perusal and consideration:
  1. UID/Aadhaar Enrolment Form (Its Column 8 reads: "I have no objection to the UIDAI sharing information provided by me to the UIDAI with agencies engaged in delivery of welfare services".)
  2. The National Identification Authority of India (NIDAI) Bill, 2010 (Refer to Clause 57 at page no. 18 and Note on Clause 57 at page no. 29)
  3. Statement of Concern on UID/Aadhaar Number (September 28, 2010)
  4. Report of the Parliamentary Standing Committee on Finance on NIDAI Bill (Recommendations & Observations 3 (b) at page no. 30)
  5. Case No. 349/90/0/2012/OC, Petition on UID & RFID (forwarded to Home Ministry on December 27, 2012 by NHRC order)
  6. APPROACH PAPER FOR A LEGISLATION ON PRIVACY (Union Ministry of Personnel, Public Grievances and Pensions October, 2010)
I submit that the above documents are with reference to the recommendations dated November 4, 2008 made by the empowered group of Ministers (EGoM) that was constituted on December 4, 2006 to collate the two schemes – the National Population Register under the Citizenship Act, 1955 and the Unique Identification Number (UID) project, the terms of reference No. 8 of Planning Commission’s notification dated January 28, 2009 stating, “Take necessary steps to ensure collation of NPR and UID (as per approved strategy)”, deliberations of the Cabinet Committee and the setting up of Group of Ministers (GoM).

I submit that NHRC’s observation that UID/Aadhaar Number will lead to discrimination due to its distinction between residents and citizens in the name of “delivery of various benefits and services” and “weaker sections of society” is quite stark.

I submit that with regard to UID and related schemes there is a need for a feasibility study, a cost-benefit analysis, assessment of national security concerns, data theft, constitutionality of this project, including in the matter of privacy, the relationship between the state and the people, security and other fundamental rights of citizens. The Report of the London School of Economics “Report on UK’s Identity Project” inter-alia 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”. Even our Parliamentary Standing Committee on Finance said, “As these findings are very much relevant and applicable to the UID scheme, they should have been seriously considered.”

It is clear that UIDAI has been set-up through an Undemocratic Process which has raised issues regarding Privacy,  Surveillance, Profiling,  Tracking and Convergence “could change the status of the people in this country, with effects on our security and constitutional rights, and a consideration of all aspects of the project should be undertaken with this in mind." 

In view of these concerns and the invalidity of Attorney General’s opinion on UIDAI, I urge you to remember the origins and colonial use of biometric information during 1857 and stop the biometric based projects like UID/Adhaar as has been done in UK, Australia, France and China, to protect the constitutional and legal rights of citizens.

Thanking You
Yours faithfully
Gopal Krishna
Citizens Form for Civil Liberties (CFCL)
Mb: 9818089660 (Delhi)

Cc
Hon’ble Member of Cabinet Committee on Unique Identification Authority of India related issues
Shri Sharad Pawar, Minister of Agriculture and Minister of Food Processing Industries
Shri P. Chidambaram, Minister of Finance
Shri Sushilkumar Shinde, Minister of Home Affairs
Shri Mallikarjun Kharge, Minister of Labour and Employment
Shri Kapil Sibal, Minister of Communications and Information Technology
Kumari Selja, Minister of Social Justice and Empowerment
Shri Jairam Ramesh, Minister of Rural Development
Shri Ajay Maken, Minister of Housing and Urban Poverty Alleviation
Shri Ashwani Kumar, Minister of Law and Justice

Hon’ble Special Invitee, Cabinet Committee on Unique Identification Authority of India related issues
Shri Montek Singh Ahluwalia, Deputy Chairman, Planning Commission
Shri Nandan Nilekani, Chairman, UIDAI


Hon’ble Member of Group of Ministers (GoM) regarding Issue of Resident Identity Cards to all usual residents of the country of age 18 years and above under the scheme of National Population Register (NPR)
Shri P. Chidambaram, Minister of Finance
Shri Ghulam Nabi Azad, Minister of Health and Family Welfare
Shri Sushilkumar Shinde, Minister of Home Affairs
Shri Ajit Singh, Minister of Civil Aviation
Shri Kapil Sibal, Minister of Communications and Information Technology
Kumari Selja, Minister of Social Justice and Empowerment
Shri Praful Patel, Minister of Heavy Industries and Public Enterprises
Shri V. Kishore Chandra Deo, Minister of Tribal Affairs, and Minister of Panchayati Raj
Shri Jairam Ramesh, Minister of Rural Development
Shri Ashwani Kumar, Minister of Law and Justice

Hon’ble Special Invitees to Group of Ministers (GoM) regarding Issue of Resident Identity Cards to all usual residents of the country of age 18 years and above under the scheme of National Population Register (NPR)

Shri Montek Singh Ahluwalia, Deputy Chairman, Planning Commission,
Shri Nandan Nilekani, Chairman, Unique Identification Authority of India,
Prof. K.V. Thomas, Minister of State (Independent Charge) of the Ministry of Consumer Affairs, Food & Public Distribution,  
Shri Paban Singh Ghatowar, Minister of State (Independent Charge) of the Ministry of Development of North Eastern Region, and Minister of State in the Ministry of Parliamentary Affairs

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