Is Congress converging UID numbers of EVMs and Indian voters? -Part XXVI
Gopal Krishna | 04/02/2014 03:21 PM |
Congress has achieved its political objectives by using CBI, a caged
parrot set up through an executive. Now, can it be ruled out that
Nandan Nilekani, as a Congress candidate for the 2014 parliamentary
elections, may use the Aadhaar database that is being created using an
executive, to his and his party's advantage?
"When the people fear the government, there is tyranny. When the
government fears the people, there is liberty."
-Thomas Jefferson, the principal author of the Declaration
of Independence (1776) and the third President of the US (1801-1809)
Justice IA Ansari, currently with Patna High Court deserves salute for
calling spade a spade. As the judge of Guwahati High Court bench which
is the High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh,
he passed a landmark judgment on 6 November 2013 in WA No119 of 2008
(in WP(C) No6877 of 2005) setting aside and quashing the resolution of
Union Ministry of Home Affairs (MHA) dated 1 April 1963, whereby
Central Bureau of Investigation (CBI) has been constituted. The
judgment has been challenged in the Supreme Court.
The bench of Justice Ansari and Dr (Mrs) Justice Indira Shah refused
to accept questionable status quo as a fait accompli. The verdict of
Justice Ansari who authored it predates the verdict of Judge Richard
Leon of the US District Court of Columbia, which was passed on 16
December 2013. Justice Ansari pronounced CBI as unconstitutional
citing Jefferson, the third President of the US and Judge Leon
pronounced US' National Security Agency (NSA) as unconstitutional in
his 68-page verdict citing James Madison, the fourth President of US
who is considered as the father of US Constitution.
The 89-page long High Court judgment is relevant for the comprehension
of the legality of the Planning Commission's notification dated 28
January 2009 that has created Unique Identification Authority of India
(UIDAI) for collection of biometric data and demographic data of
Indian residents in order to create a Central Identities Data
Repository (CIDR) to collate it with MHA's National Population
Register (NPR). Once collated, both CIDR of 60 crore and NPR of 61
crore residents of India will become one database of unique
identification (UID) numbers, which is branded and advertised as
'Aadhaar' number. The name Aadhaar does not feature in the
notification that created UIDAI.
As per the notification that set up the UIDAI, it has the
responsibility to lay down plans and policies to implement the UID
scheme, which would include giving UID numbers to residents,
interlinking UID with partner databases on a continuous basis, to keep
the database updated, and "take necessary steps to ensure collation of
NPR with UID (as per approved strategy)." UIDAI is also supposed to
"identify new partner/user agencies", to "issue necessary instructions
to agencies that undertake creation of databases and to "enable
collation and correlation with UID and its partner databases." The
notification states that the Planning Commission is the nodal agency
and the UIDAI "shall own and operate the database."
It may be recollected that at a talk on UID number delivered at the
World Bank on 24 April 2013, Nandan Nilekani, with a rank as 'Cabinet
Minister' responsible for UIDAI said, "First of all, this is not an ID
card project. There is no card. There is a number. It's a virtual
number on the cloud, and we don't give a physical card. We do send you
a physical letter with your number, which you keep in your pocket, but
the real value of this is the number on the cloud."
In an interview to NDTV, he said, "this number does not confer any
rights, it does not confer any benefits, it does not confer any
entitlements. It's just a number authenticating that you are who you
claim to be.... If somebody's name is Madanlal and if this Madanlal is
in database with finger prints then if Madanlal goes somewhere and
says I am Madanlal 123, the system will say yes this is Madanlal.
That's it. It's only a verification system and all the residents of
the country can get this number. What are the rights, what are the
benefits, what are the entitlements are things that will be done by
other systems that will use this core system for identity verification
only."
Did Planning Commission or any agency or the legislature allow storage
of biometric database being created on the cloud? Is such overreach
permissible? Has its ramification for security of the country and
citizens been looked into?
The question as to who owns and manages the database of biometric
numbers on the cloud and whether the owner/manager is subject to the
jurisdiction of Indians laws remains unexplained.
It may be noted that IBM, a US company, is deemed the original
virtualization company. It did its first experiments for the virtual
machine (VM) in 1960s. This involves remote machines of some company
that can process even complex data analysis programs and shift
workload from local in house machines. It is the computer networks
that create cloud-a virtual space. It decreases demand for more space
for hardware and software on the user's side by using cloud computing
system's interface software. It is akin to a web browser. Our e-mail
program, its software and storage for the mail account is on a
computer cloud, for instance. In 2007, IBM announced a partnership
with Google to promote cloud computing in universities. Hasn't Edward
Snowden's disclosures revealed that even the emails of heads of states
have been compromised? Have drawbacks like database security, sale of
personal sensitive information and the ulterior motives of Big Data
companies been examined? Besides it is not clear what is getting
encrypted on the cloud and what is in the commons. Big data from
developing countries, which are gullible and myopic, is easily
accessible. Does this hold true for advanced countries as well? What
was copyrighted in the earlier is increasingly being encrypted in the
unfolding era. Is it irrelevant to recollect the role of IBM in
facilitating holocaust in Germany in this context?
The Supreme Court was to hear the case challenging the legality of
UIDAI on 28 January 2014 but now it is listed for hearing on 4
February 2014. The Contempt Petition (Civil) No144/2014 besides Writ
Petition (Civil) No494 of 2012, WP(C) No829 of 2013, WP (C)
No932/2013, TC (C) No152/2013, TC (C) No151/2013 and WP(C) No833/2013
is listed for hearing in Court no.4 of Dr Justice BS Chauhan, Justice
J Chelameswar and Justice MY Eqbal.
As per approved strategy, Planning Commission appears to have been
used to pilot it only to give Aadhaar an innocent garb and to mouth
unconvincing claims about benefits of biometric identification in
delivery of social welfare schemes. Wittingly or unwittingly, the
merger of these schemes with biometric identification have done to use
the former as a fish bait at the behest of Big Data companies.
MHA's questionable institutions are facing robust legal challenge. By
now, it is clear that the way MHA created and operated CBI incorrectly
arguing that it is being done under Delhi Special Police Establishment
Act, 1946, UIDAI and NPR, too, are illegitimate children of MHA and
Planning Commission.
The judgment on CBI begins with the quote of Thomas Jefferson on how
tyranny is when people fear the government and its liberty when
government fears the people. It was delivered after hearing PP
Malhotra, additional solicitor general of India and Dr LS Choudhury,
the appellant's counsel.
Admittedly, the creation of CBI was undertaken by keeping States in
dark. States have protested vociferously against such moves when in a
similar manner National Counter Terrorism Centre (NCTC) with National
Intelligence Grid (NATGRID) was being bulldozed. The same is being
attempted through Cabinet Minister ranked Sam Pitroda's Public
Information Infrastructure. These measures reveal that government is
increasingly fearful of the people. Gujarat Chief Minister Narendra
Modi, for instance, has gone on record to say that States were not on
board in the matter of biometric identification although it seems he
was misled into biometric enrolment by RS Sharma, the current Chief
Secretary of Jharkhand.
The High Court judgment in the matter of CBI was pronounced after
examining questions like: Whether 'Central Bureau of Investigation',
popularly called CBI, is a constitutionally valid police force
empowered to 'investigate' crimes?, Could a 'police force', empowered
to 'investigate' crimes, have been created and constituted by a mere
Resolution of Ministry of Home Affairs, Government of India, in
purported exercise of its executive powers?, Could a 'police force',
constituted by a Home Ministry Resolution, arrest a person accused of
committing an offence, conduct search and seizure, submit charge-sheet
and/or prosecute alleged offender?, Whether CBI is a 'police force'
constituted under the Union's Legislative powers conferred by List I
Entry 8?, Do Entry 1 and 2 of the Concurrent List empower the Union
Government to raise a 'police force' and that, too, by way of
Executive instructions of Union Home Ministry?, Whether Delhi Special
Police Establishment Act, 1946, empowers the Union Home Ministry to
establish a 'police force' in the name of CBI? And above all, is it
permissible for the Executive to create a 'police force' with power to
'investigate' crimes in exercise of its executive powers, when
exercise of such a power adversely affects or infringes fundamental
rights embodied in Part III of the Constitution, particularly, Article
21?
The petitioner had sought quashing of the impugned Resolution
No4/31/61-T, dated 1 April 1963, where under the Central Bureau of
Investigation stands established, as ultra vires the Constitution of
India. It was argued that since police is a State subject within the
scheme of the Constitution of India inasmuch as it is only a State
Legislature, which, in terms of Entry No. 2 of List-II (State List) of
the Seventh Schedule to the Constitution of India, is competent to
legislate on the subject of police and, therefore, the Central
Government could not have taken away the power, which so belongs to
State legislatures, and create or establish an investigating agency,
in the name of CBI, adversely affecting or offending the fundamental
rights, guaranteed under Part III of the Constitution of India.
Notably, the petition against biometric UID/Aadhaar number seeks
quashing of the notification that set up the UIDAI. The biometric
identification is emerging as the initial step for investigation
without any legal basis.
The High Court judgment in the matter of CBI has noted that the
Constituent Assembly debates, dated 29 August 1949, wherein Dr BR
Ambedkar had clarified that the word 'investigation', appearing in
Entry 8 of List I (Union List) of the Seventh Schedule, which read,
"Central Bureau of Intelligence and Investigation", would not permit
making of an 'investigation' into a crime by the Central Government
inasmuch as 'investigation' would be constitutionally possible only by
a police officer under the Code of Criminal Procedure (Cr PC), police
being exclusively a State subject and the word 'investigation',
appearing in Entry 8 of List I (Union List), would, in effect, mean
making of merely an 'enquiry' and not 'investigation' into a crime as
is done by a police officer under the Code of Criminal Procedure. The
word `investigation' is, therefore, according to the Constituent
Assembly Debates, intended to cover general enquiry for the purpose of
finding out what is going on and such an investigation is not an
investigation preparatory to the filing of a charge- sheet against an
offender, because it is only a police officer, under the Criminal
Procedure Code, who can conduct 'investigation'.
In its affidavit, the CBI, claimed that "it had been exercising
functions and powers of police under the Delhi Special Police
Establishment Act, 1946. In its affidavit, filed in the writ petition,
the CBI further submitted that the CBI has had been functioning for
more than four decades, but its constitutional validity has never been
challenged by any one and, hence, this settled position may not be
unsettled." This is a bizarre defence. Similar defenses are being
advanced for UIDAI and Aadhaar in the Supreme Court.
The petitioner argued that "Delhi Special Police Establishment Act,
1946 (in short, 'the DSPE Act, 1946') is ultra vires the Constitution,
for, it offends, according to Mr Choudhury, Article 372 of the
Constitution inasmuch as Parliament is not competent to make law on
police for whole of India and it is only a State legislature,
reiterates Mr Choudhury, which can make, or could have made, law, on
police by taking resort to Entry No.2 in the State List (List II)."
Therefore, the DSPE Act, 1946, cannot continue anymore inasmuch as its
continuance violates the basic Constitutional scheme. The Executive
Order dated 1 April, 1963 that created CBI, does not disclose that the
CBI has been constituted under DSPE Act.
Though "Union of India's executive powers may, in the light of Article
73, be co-extensive with its legislative powers, the fact remains that
the executive powers cannot be exercised offending fundamental rights,
guaranteed by Part III, unless the exercise of such executive powers
is backed by appropriate legislation; but, in the cast at hand, the
resolution, dated 1 April 1963, where under CBI has been constituted,
is not backed by any legislation", the judgment notes.
Notably, Article 73 has been invoked for UIDAI and its functions as
well. The report of the Parliamentary Standing Committee on Finance on
The National Identification Authority of India (NIAI) Bill that
rejected this UID Bill notes, "On being asked about the legal basis
under which the UIDAI is functioning at present, and the mechanism
that the UIDAI has adopted, since its inception, to deal with any of
the issues like security and confidentiality of information and other
offences related to issue of the Aadhaar numbers, the Ministry of
Planning in a written reply have inter-alia stated that:- --....The
matter about commencement of operation of the UIDAI before a legal
framework was put in place was referred to the Ministry of Law &
Justice, wherein opinion was sought on the issue whether in absence of
a specific enabling law, would there be any constraints in collecting
the data (including biometrics) and in issuing the UID numbers to
residents in accordance with the mandate given to the Authority. The
Ministry of Law & Justice, after examining the matter, had mentioned
that it is a settled position that powers of the Executive are
co-extensive with the legislative power of the Government and that the
Government is not debarred from exercising its executive power in the
areas which are not regulated by specific legislation. It had also
been opined that till the time such legislation is framed the
Authority can continue to function under the executive order issued by
the Government and the scheme that may be prepared by the UIDAI. It
was also opined that the Authority can collect information/data for
implementation of the UID scheme. Such implementation can be done by
giving wide publicity to the scheme and persuading the
agencies/individual to part with necessary information. The UIDAI has
not faced issues such as breach of security and confidentiality,
manipulation of biometrics, unauthorized access to the CIDR or other
related offences since its inception.....till the time Parliament passes
the Bill, these matters will be covered by the relevant laws."
The report records "the opinion of the Attorney-General of India on
the above mentioned issues as obtained by the Ministry of Law &
Justice (Department of Legal Affairs) is furnished below:- --The
competence of the Executive is not limited to take steps to implement
the law proposed to be passed by Parliament. Executive Power operates
independently. The Executive is not implementing the provisions of the
Bill. The Authority presently functioning under the Executive
Notification dated 28 January 2009 is doing so under valid authority
and there is nothing in law or otherwise, which prevents the Authority
from functioning under the Executive Authorisation. The power of
Executive is clear and there is no question of circumventing
Parliament or the Executive becoming a substitute of Parliament. On
the contrary, what is sought to be done is to achieve a seamless
transition of the authority from an Executive Authority into a
statutory authority. All the expenditure, which is being incurred is
sanctioned by Parliament in accordance with the financial procedure
set forth in the Constitution. If the Bill is not passed by any reason
and if Parliament is of the view that the Authority should not
function and express its will to that effect, the exercise would have
to be discontinued. This contingency does not arise. The present Bill
being implemented without Parliament's approval does not set a bad
precedent in the Parliamentary form of Government. On the contrary,
the fact that the Authority is sought to be converted from an
Executive Authority to a statutory authority, it underlines the
supremacy of Parliament."
Contrary to the opinion of the Attorney-General of India, the
contingency has arisen because the Bill has not been passed.
The Attorney-General of India, Ministry of Law & Justice and Ministry
of Planning have erred in defending the indefensible act of creation
of UIDAI, the Supreme Court HAS held, in Dr DC Wadhwa & Ors V/s State
of Bihar & Ors (AIR 1987 SC 579), that the executive cannot take away
the 51 functions of the legislature. The relevant observations, made
in this regard, read as under:
"....The law making function is entrusted by the Constitution to the
legislature consisting of the representatives of the people and if the
executive were permitted to continue the provisions of an ordinance in
force by adopting the methodology of re-promulgation without
submitting it to the voice of legislature, it would be nothing short
of usurpations by the executive of the law making function of the
legislature. The executive cannot by taking resort to an emergency
power exercising by it only when the legislature is not in session,
take over the law making function of the legislature. That would be
clearly subverting the democratic process which lies at the core of
our Constitutional Scheme, for then the people would be governed not
by the laws made by the legislature as provided in the Constitution,
but, by the laws made by the executive. The government cannot bypass
the legislature and without enacting the provisions of the Ordinance
into Act of legislature, re-promulgate the Ordinance as soon as the
legislature is prorogued....It is settled law that a constitutional
authority cannot do indirectly what it is not permitted to do
directly. If there is a constitutional provision inhibiting the
constitutional authority from doing an act, such provision cannot be
allowed to be defeated by adopting of any subterfuge. That would be
clearly a fraud on the Constitution....."
The Supreme Court, in Ram Jawaya Kapur vs State of Punjab (AIR 1955 SC
549), while dealing with an argument of violation of fundamental
rights, observed that ordinarily, the executive power connotes the
residue of governmental functions that remain after legislative and
judicial functions are taken away. It observes that our Constitution
does not contemplate assumption, by one organ or part of the State, of
functions that essentially belong to another and that Executive can,
indeed, exercise the powers of departmental or subordinate
legislation, when such powers are delegated to it by the Legislature.
It cautioned that if, by the notifications and acts of the executive
Government, the fundamental rights have been violated, then, such
executive actions have to be termed as unconstitutional.
Citing Supreme Court's verdicts, the High Court has underlined that
the executive powers of the State are to fill up the gaps and not to
act as an independent law making agency inasmuch as the function of
enacting law, under our Constitution, lies with the Legislature and
the Executive has to implement the policies/ laws made by the
Legislature and if the State is permitted to take recourse to its
executive powers to make laws, then, we would be governed by the laws
not made by the Legislature, but by the Executive.
As held by the Supreme Court, in the case of Chief Settlement
Commissioner v/s Om Prakash (AIR 1969 SC 33), the notion of inherent
and autonomous law making power, in the executive administration, is a
notion that must be emphatically rejected. This is the notion
Congress-led Rajasthan Government is advancing. On the issue of "Lack
of competence of Executive to implement Aadhaar scheme in absence of
legislation or when legislation is being contemplated by the
Parliament", Ashok Gehlot-led Rajasthan government filed the affidavit
on 5 December 2013 submitting, "The executive power is only fettered
by the fact that it should not be inconsistent with any law made by
the Parliament or which contravenes the fundamental rights of the
resident. In the present matter, the Union of India had the
legislative competence to enact law and therefore shall proprio vigora
have requisite executive power."
A reading of the notification of the Planning Commission to set up the
UIDAI would make it evident that it does not reflect the source of
executive power. Since it is found that the notification, which
created the UIDAI, is not an act of delegated legislation, the
notification cannot be deemed to be law. Even perusal of the
available records makes it clear that the notification was neither
produced before the President of India nor did it ever receive the
assent of the President of India. Hence, strictly speaking, the
notification, in question, cannot even be termed as the decision of
the Government of India. But contract agreements have been signed with
transnational surveillance, intelligence and identification companies
by UIDAI in the name of the President of India although President's
assent has not been taken. These companies are admittedly keeping data
of residents of India for seven years. Does it serve the interest of
Indians?
The High Court observes that CBI did not file the original records in
the Court. Why has CBI not filed the original records relating to
creation of the CBI despite directions of the High Court? It is not
clear as yet to whether the original records of the decision making
process that led to the creation of UIDAI has been filed. Biometric
database of UIDAI and NPR is linked to CBI database through NATGRID.
In India, one of the earliest documents that refer UIDAI is a 14-page
long document titled 'Strategic Vision: Unique Identification of
Residents' prepared by Wipro Ltd and submitted to the Processes
Committee of the Planning Commission has finally emerged. This
document envisaged the close linkage that the UIDAI would have with
the electoral database. The way High Court sought all the records in
the matter of creation of CBI, records related to creation of UIDAI,
be it from the Union Cabinet, Prime Minister's Council on UIDAI,
E-GoM, GOM and Committee of Secretaries need to be put on record to
enable the Supreme Court to examine their legality. For instance, has
the details of what transpired between A Raja and Nilekani been placed
before the court who had interacted in July 2009. On 4 December 2006,
the Prime Minister had constituted an Empowered Group of Ministers
(E-GoM) comprising of A Raja, the then Minister of Communications &
Information Technology, the minister-in-charge responsible for UID and
others.
Nilekani has said, "You see the thing is that we need something, which
has the biometric way of identifying a person, so that you can
uniquely identify a person, we need a system which allows us to
eliminate the duplicates so that there is one number per person and we
need something which has the infrastructure for online authentication
and given all these three factors we felt it was best to build a new
system as oppose to use data from an existing system. However, we will
use all the agencies, which currently deal with these kinds of things
as very valuable partners in what we are planning to do." The use of
electoral database mentioned in Wipro's document remains on the
agenda.
Can it be ruled out that Nilekani as a candidate for the 2014
parliamentary elections may use the database to his and his party's
advantage? Can UID numbers of Electronic Voting Machines (EVMs) and
UID number of Indian voters be converged? Will such convergence save
democracy or undermine it? After having achieved its political
objectives by using CBI, a caged parrot of Congress, the party is
unfolding UIDAI, the biometric identifier for turning citizens into
subjects and suspects by blackmailing opposition parties. Which are
the parties that are afraid of facing the people? Will the voters
fail to recognize them in the upcoming elections?
You may also want to read...
Why biometric identification of citizens must be resisted? Part I
Biometric identification is modern day enslavement -Part II
Biometric profiling, including DNA, is dehumanising -Part III
Marketing and advertising blitzkrieg of biometric techies and
supporters -Part IV
History of technologies reveals it is their owners who are true
beneficiaries -Part V
UID's promise of service delivery to poor hides IT, biometrics
industry profits -Part VI
Technologies and technology companies are beyond regulation? -Part VII
Surveillance through biometrics-based Aadhaar -Part VIII
Narendra Modi biometrically profiled. What about Congress leaders?-Part IX
Aadhaar: Why opposition ruled states are playing partner for biometric
UID? -Part X
Is Nandan Nilekani acting as an agent of non-state actors? -Part XI
Aadhaar and UPA govt's obsession for private sector benefits-Part XII
CIA-funded MongoDB partners with UIDAI to handle Aadhaar data -Part XIII
Are Indians being used as guinea pigs of biometric technology
companies? -Part XIV
Aadhaar: Is the biometric data of human body immortal and ageless? Part XV
Aadhaar: The propaganda of transnational vested interests -Part XVI
Aadhaar: Pakistan handed over, India giving database on a platter- Part XVII
Engineered row in US-India relations, an attention diversion tactics
of big brothers?--Part XVIII
Aadhaar: UIDAI and the 'fifth column' of Napoleon--Part XIX
Aadhaar: Turning citizens into subjects through social control
technology companies -PartXX
Why Kejriwal govt in Delhi should abandon biometric Aadhaar?--Part XXI
Aadhaar for LPG: Oil companies, Ministry of Petroleum & UIDAI
disobeying Supreme Court order-Part XXII
Why Vasundhara Raje should immediately withdraw circulars making
Aadhaar mandatory -Part XXIII
How Congress has been proven wrong on biometric Aadhaar and NPR -Part XXIV
Aadhaar, NPR, UN resolution and deafening silence of political parties -Part XXV
(Gopal Krishna is member of Citizens Forum for Civil Liberties
(CFCL), which is campaigning against surveillance technologies since
2010)
http://www.moneylife.in/article/is-congress-converging-uid-numbers-of-evms-and-indian-voters-ndashpart-xxvi/36256.html
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