Apr

17

NCTC and UID/Aadhaar projects, threat to Citizens’ Rights & States’ Autonomy

Punjab & Haryana Must Stop Collection of Citizens’ Biometric Data

Govt overwhelmed by marketing blitzkrieg of surveillance, biometric, communication technology companies & international financial institutions

April 16, 2012 Chandigarh- The Unique Identification (UID)/Aadhaar project is a project that has no support in law.

The collection of biometrics under the project to create a National Population Register (NPR) is illegal. This has been underlined by the report of India’s Parliamentary Standing on Finance. There are good reasons why countries like the UK, Australia, Philippines and China have rejected UID/Aadhaar and NPR-like projects, but these seem to have escaped the attention of the governments of Punjab, Haryana and Chandigarh which are implementing them in pursuance of the MoUs they have signed with the Unique Identification Authority of India(UIDAI).

These projects are based on the biometric profiling of citizens which, as the Standing Committee on Finance has observed, is without any legal mandate. These instead represent a threat to citizens’ rights and States ’autonomy. 

The Central Government appears to have lost its way and has embarked on projects that show a deep disrespect for citizens of this country The profiling, and the intrusion of privacy, that is a central aspect of these projects are, among other things, contrary to the Supreme Court’s judgment dated July 4, 2011 where it reiterated that the Right to Privacy is a part of the constitutional Right to Life. The central government appears to have been in disrespectful disdain of this judgment too when it launched these projects on the basis of biometrics which is untested and untried, and which have surveillance, tracking, profiling, tagging and convergence at its core.

The 5 page MoU was initially signed by Punjab Govt on 15 April, 2010 and later revised on June 23, 2010. Haryana Government signed a 7 page MoU with UIDAI on June 10, 2010. The 5 page MoU between Union Territory of Chandigarh and UIDAI was signed on June 10, 2012. The MoUs are attached.

While signing these MoUs it appears that the governments did not notice that the collection of biometrics is not only an assault on the dignity and rights of its citizens, but that it is, in fact, illegal - a fact that the Standing Committee on Finance has expressly set out in its report. It may also be noticed that even the Identification of Prisoners Act, 1920, of colonial vintage, reads: “The object of this bill is to provide legal authority for taking measurements, finger impressions, footprints and photographs of persons convicted of, or arrested in connection with, certain offences.” According to the Identification of Prisoners Act, 1920, at the time of the acquittal of the prisoner, his biometric data is required to be destroyed. The UID/Aadhaar project and the NPR, however, aspire to store the biometric data forever. There is a DNA Bank Bill that has been prepared and which when enacted could require the citizen to give one's DNA to the state. What ambitions does this reveal? 

Parliamentarians, legislative bodies, jurists, legal academia, former judges, lawyers and groups working on human rights and civil liberties have underlined that central Initiatives such as the National Counter Terrorism Centre (NCTC) of India, National Intelligence Grid (NATGRID), National Population Register, Unique Identification (UID)/Aadhaar project and other related projects under execution are not governed by any legal framework, parliamentary oversight and do not conform to the Constitutional Mandate. 

The Standing Committee on Finance found that the UID project is "riddled with serious lacunae and concern areas". It "has been conceptualised with no clarity of purpose and leaving many things to be sorted out during the course of its implementation; and is being implemented in a directionless way with a lot of confusion".  It said that the project cannot be allowed to proceed without the authority of law. "Crucial matters impinging on security and confidentiality of
information" demands that a law be enacted before the project can be allowed to go ahead. The Standing Committee found that the UID project is being implemented in an "overbearing manner without regard to legalities and other social consequences". Especially, the Standing Committee adverted to the "serious security concern" raised by the Ministry of Home Affairs "over the efficacy of the introducer system, involvement of private agencies in a large scale in the scheme which may become a threat to national security ..."; and the National Informatics Centre pointing out "that the issues relating to privacy and security of UID data could be better handled by storing in a government data centre".

In a significant assessment of the project, it said:"Even if the aadhaar number links entitlements to targeted beneficiaries, it may not ensure that beneficiaries have been correctly identified. Thus, the present problem of proper identification would persist."

It found that lessons from experiences in other countries around projects of a like nature have been ignored, including in the matter of costs; complexity; untested, unreliable and unsafe technology; possibility of risk to the safety and security of citizens; and the requirement of high standard security measures which would further escalate costs.

Without a national data protection law issues "like access and misuse of personal information, surveillance, profiling, linking and matching of databases and securing confidentiality of information etc." cannot be handled. 

The Ministry of Planning had admitted that there was no feasibility study "which ought to have been done before approving such an expensive scheme, has been done involving all aspects of the UID scheme including cost-benefit analysis, comparative costs of aadhaar number and various forms of existing identity, financial implications and prevention of identity theft, for example, using hologram enabled ration card to eliminate fake and duplicate beneficiaries."

 The Standing Committee expressed concern about the dependency of the project on private vendors, "as a result' the beneficiaries may be forced to pay over and above the charges to be prescribed by the UIDAI for availing of benefits and services, which are now available free of cost."

The Standing Committee found the project to be "full of uncertainty in technology as the complex scheme is built up on untested, unreliable technology and several assumptions." Further, "despite adverse observations by the UIDAI"s Biometrics Standards Committee on error rates of biometrics, the UIDAI is collecting the biometric information."

 The "concerns and apprehensions" besetting the Standing Committee, and "particularly considering the contradictions and ambiguities within the Government on its implementation as well as implications, the Committee categorically convey their unacceptability of the National Identification Authority of India Bill, 2010 in its present form ...The Committee would, thus, urge the Government to reconsider and review the UID scheme as also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament."

The Central Government has chosen to ignore this report, and not to address any of these concerns before proceeding with the project. In January this year, after raising legitimate concerns about the security implications of the way the UIDAI was collecting data, the Central Home Minister and the Chairperson of the UIDAI and the Deputy Chairman of the Planning Commission arrived at an understanding, and agreed to share the population between them for enrolment! How could a security risk be treated with such casualness?

The PSC report also reveals that the UIDAI’s activities like signing of MoU with State Governments is without any legal and constitutional mandate. The recommendations are relevant for Home Ministry’s NPR for Multipurpose National Identity Card.

The Parliamentary Committee is categorical that the Central Govt’s Empowered Group of Ministers (EGoM) constituted for the purpose of collating the two schemes namely, the UID and National Population Register (NPR), has failed. Together with UID, Central Government is creating NPR by collecting information on specific characteristics of all usual residents in the country. The NPR would also have photographs, 10 finger prints and 2 IRIS prints of all usual residents who are of age 5 years and above. Yet, the Citizenship Act does not mention biometrics, nor do the 2003 Rules -- making the collection of biometrics as part of the NPR exercise illegal.

In a November 2011 interview to the print media, the Director General and Mission Director of the UIDAI had admitted that fingerprints are likely not to work for authentication.  Despite this, the UIDAI is going ahead with the exercise.  The Parliamentary Report notes the absence of a feasibility study, no cost-benefit assessment, uncertain and untested technology, an enrollment process that has national security implications, the lack of data protection and privacy legislation and the disrespect for Parliament by going ahead with a project that was pending parliamentary approval.

The Parliamentary Committee considering the National Identification Authority of India (NIDAI) Bill has presented its report to the Parliament. The report rejects biometric data based identification of Indians. The report is a severe indictment of the hasty and `directionless' project which has been "conceptualised with no clarity of purpose". The Parliamentary Committee has found the biometric technology being used by UIDAI and NPR is ‘uncertain' and 'untested'.  In short:

•           The Memorandum of Understanding signed by the State Governments with the UIDAI had no prior consultation with the citizens and was done in the most non-transparent manner. This must be immediately cancelled.

•           State Govts and other agencies ought to note that UIDAI has been trying to push for the adoption of the UID through multiple committees of several ministries and for the re-engineering of current systems to fit the requirements of the UID.

•           Aadhaar and NPR are based on biometric and retinal profile procured from people. This is the most repulsive aspect of UID/Aadhaar project. Any biometric profile directly violates the very dignity and privacy of Indian citizens which is guaranteed by the Indian Constitution. What is normally used for terrorists and criminals is now sought to be used against the common citizens of this country.

It should be noted that the Parliamentary Committee has taken on board studies done in the UK on the identity scheme that was begun and later withdrawn in May 2010, where the problems were identified to include"(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."

While there is a studied silence about UID/Aadhaar and National Population Register (NPR) but the related project of National Counter Terrorism Centre (NCTC) has faced bitter opposition. Citizen groups demand that States should apply their legal minds and voice concerns about the both. Besides over a dozen State Governments, left parties, parties from National Democratic Alliance, even members of United Progressive Alliance have contended that central projects like NCTC violates the principle of federalism by its arbitrary and making agencies of States subservient to it. This leads to unacceptable erosion of autonomy of the States (including those ruled by regional parties) as envisaged in the Constitution. 

The fact is all freedom loving Indians are opposed to Central Government’s initiatives of Home Ministry like NPR, NATGRID, NCTC and RFID due to following reasons:

1. Threat to privacy, civil liberties, federalism, national security, sovereignty and constitution

2. Without democratic, parliamentary, legal and constitutional sanction

3. Emergence of a Database, Surveillance State and Property based Democracy

4. Anti-poor and anti-citizen as it dismantles Public Distribution System and other existing social service entitlements

5. Promotes outsourcing of governance

6. Fraught with dangers of caste and communal overtones

7. Guided by undemocratic international financial institutions and defence policies of other nuclear weapon holding countries

8. Adverse consequences of participation by foreign companies and biometric technology providers and collection of biometric details an act violation of human rights that turns citizens into subjects and treats them worse than prisoners. The personal and biometric data being outsourced to third parties (including foreign companies) represents an unacceptable security risk for the people in this country, and for the nation itself. UIDAI has entered into contracts with companies like Accenture and Safran Group that are providing similar services to Security Departments of US, France, China and South Korea. This has dangerous possibilities.

9. Compromises citizens’ rights of present and future generations

10. It is a boondoggle, an unnecessary and wasteful project for citizens as it transfers public money to private parties

It is clear that UID/Aadhaar, NPR, NATGRID and NCTC are related because they are a threat to citizens’ rights, federalism and national sovereignty. In the aftermath of PSC report which has rejected collection of biometric data and these schemes, the illegality and illegitimacy of the entire surveillance project has come out in open. There is a compelling logic for the State Governments to adopt the PSC report discuss it in their respective State Assemblies, with its citizenry and abandon UID/NPR related uncalled for central database projects.

Citizens’ opposition to UID and NPR has a historical context. It is also a historical fact that Mahatma Gandhi was against identification based on biometric data in his days of struggle in South Africa in the early part of last century. He had burnt the biometric identity card. A government which insincerely swears by his name stands exposed because of launching projects which were opposed by Gandhiji.

For Details: Dr. Usha Ramanathan, Noted Jurist, New Delhi, Email: urushar@gmail.com

Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), M: 09818089660, E-mail: krishna1715@gmail.com