- Right to privacy is an inalienable birth right & fundamental right
- Biometric data collection, aadhaar number & related programs is a black act
- Open war against sensitive personal information like biometric data through aadhaar and Human DNA Profiling Bill 2015 is condemnable
Unique Identification Authority of India (UIDAI), its Unique Identification (UID)/aadhaar number project and schemes related to them have no support in law. It is violatve of right to privacy which is an inalienable birth right and fundamental right. The collection of biometric data is illegal and mandatory requirement for aadhaar in manifest contempt Supreme Court’s repeated orders during 23rd September, 2013 till 16th March, 2015. When confronted with such gross wrongful acts, adopting the posture of “offence is the best defence”, in a stark case of misrepresentation of relevant precedents, Attorney-General Mukul Rohatgi orally submitted in the biometric aadhaar case in the Supreme Court that right to privacy is not a fundamental right during the hearing of the aadhaar case that re-commenced recently on 21st July, 2015. This statement is quite disturbing ahead of the proposed introduction of Human DNA Profiling Bill 2015 in the monsoon session of Parliament underway.
Citizens’ opposition to UID/aadhaar has a historical context. It is linked to more than a century old world famous ’Satyagraha’ of Mahatma Gandhi in order to oppose the identification scheme of the government in South Africa. On 22nd August, 1906, the South African government published a draft Asiatic Law Amendment Ordinance. The Ordinance required all Indians in the Transvaal region of South Africa, eight years and above, to report to the Registrar of Asiatics and obtain, upon the submission of a complete set of fingerprints, a certificate which would then have to be produced upon demand. The move proposed stiff penalties, including deportation, for Indians who failed to comply with the terms of the Ordinance. Knowing the impact of the Ordinance and effective criminalisation of the entire community, Mahatma Gandhi then decided to challenge it. Calling the Ordinance a ’Black Act’ he mobilised around 3,000 Indians in Johannesburg who took an oath not to submit to a degrading and discriminatory piece of legislation. Biometric aadhaar case demonstrates how ’Those who forget history are condemned to repeat it’.
Biometric profiling is inherently dangerous because it tracks individuals based on their religious, behavioural and/or biological traits. History is replete with examples wherein such profiling has been used for genocide, holocaust and violence against all kinds of minorities.
The fact is that Hon’ble Supreme Court conclusively established privacy jurisprudence on 4th July 2011 by its judgment in the Ram Jethmalani and Others vs Union of India and Others case, the Black Money Case. Hon’ble Court held: “Right to privacy is an integral part of right to life. This is a cherished constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner….as constitutional adjudicators we always have to be mindful of preserving the sanctity of constitutional values, and hasty steps that derogate from fundamental rights, whether urged by governments or private citizens, howsoever well meaning they may be, have to be necessarily very carefully scrutinised.”
An application filed on 16th July, 2015 in the Supreme Court intending to formally make aadhaar applicable to other government schemes such as obtaining passports, PAN cards, immigration, railways, telecommunications and prison management systems vindicates the apprehension of the human rights groups and Parliamentary Standing Committee on Finance that trashed the Bill which was meant to legalize the questionable activities of UIDAI. It also unequivocally illustrates that biometric aadhaar is a tool for exclusion, not for claimed inclusion. In fact such profiling with biometric aadhaar is fraught with dangers of genocide and communal crisis at the local, regional and national level.
What the government’s proposal means is underlined in a confidential document of UIDAI titled ‘Creating a unique identity number for every resident in India’, leaked by Wikileaks on 13th November, 2009. It revealed, “One way to ensure that the unique identification (UID) number is used by all government and private agencies is by inserting it into the birth certificate of the infant. Since the birth certificate is the original identity document, it is likely that this number will then persist as the key identifier through the individual’s various life events, such as joining school, immunizations, voting etc.” This paved way for all round surveillance adversely impacting political rights of present and future generations and making right to civil liberties extinct.
Most recently in a welcome verdict, in a case filed by the Labour MP Tom Watson and the Conservative MP David Davis, UK’s High Court has declared the Data Retention and Investigatory Powers Act (DRIPA), 2014 as illegal. This Act provided access to everyone’s data by the police and other agencies including permission for interception of communications. Interception of biometric data also falls in the same category.
Notably, in the case of aadhaar, Parliament’s consent was never taken despite explicit reference to its need by Parliamentary Standing Committee on Finance.
It must be recalled that referring to the incident of surveillance of his mobile phones, in an article titled My Call Detail Records and A Citizen’s Right to Privacy published in Gujarati, Hindi, Urdu & English (Source: http://www.bjp.org), Arun Jaitley as Leader of Opposition, Rajya Sabha wrote, “Firstly, every citizen in India has a right to privacy. His right to pirivacy is an inherent aspect of his personal liberty. Interference in the right to privacy is an interference in his personal liberty by a process which is not fair, just or reasonable. A person’s Call Detail Records can throw up details of several transactions. In the case of an average citizen it can reflect on his relationships. In the case of a professional or a business person it can reflect on his financial transactions. In the case of a journalist it can reveal the identity of his sources. In the case of a politician it can reveal the identity of the person with whom he has regular access. Every person has ‘a right to be left alone’.”
Jaitley added, “In a liberal society there is no place for those who peep into the private affairs of individuals. No one has a right to know who another communicates with him. The nature of communication, the identity of persons being communicated with and frequency of communications would be a serious breach of privacy….This incident throws up another legitimate fear. We are now entering the era of the Adhaar number. The Government has recently made the existence of the Adhaar number as a condition precedent for undertaking several activities; from registering marriages to execution of property documents. Will those who encroach upon the affairs of others be able to get access to bank accounts and other important details by breaking into the system? If this ever becomes possible the consequences would be far messier.”
Revealing how power clouds human intelligence, Jaitley and his ministerial colleagues do not comprehend messier consequences of breach of privacy anymore.
On 8th April, 2014, Narendra Modi tweeted, "On Aadhaar, neither the Team that I met nor PM could answer my Qs (questions) on security threat it can pose. There is no vision, only political gimmick" in the aftermath of orders of Supreme Court and Punjab & Haryana High Court, concerns raised by National Human Rights Commission.
But the influence of transnational powers has become quite evident from the U turn by both Jaitley and Modi with regard to biometric aadhaar number after 21st May, 2014 when BJP led coalition became the ruling party at the centre.
Considerations other than truth have given birth to Modi government’s faith in 12 digit biometric aadhaar number. The issuance of 83 crore Aadhaar numbers does not make it scientific. The entire government machinery is hiding the fact that fundamentally UID is not a proof of identity, it is an identifier contained in the Central Identities Data Repository (CIDR) of UID numbers. Aadhaar is the brand name of UID Number. Admittedly, government’s Paper on Privacy Bill states, “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.”
This paper prophetically infers that “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. Government is feigning ignorance about these concerns in the Supreme Court. Following the footprint of Pakistan, in October 2014, the Prime Ministers’ Office agreed in principle to make biometric aadhaar mandatory for getting new mobile connection. It has been made mandatory for railway e-tickets and Banking Correspondents as well.
Notably, Biometrics “means the technologies that measure and analyse human body characteristics, such as ’fingerprints’, ’eye retinas and irises’, ’voice patterns’, "facial patterns’, ’hand measurements’ and ’DNA’ for authentication purposes” as per Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000.
Notably, Human DNA Profiling Bill has been prepared and which when enacted could require the citizen to give one’s DNA to the state. What ambitions does this reveal? This would complete the journey of subjugation which started with fingerprints and is possibly ending in DNA profiling.
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 4th July, 2011 [Writ Petition (Civil) NO. 176 of 2009] where it reiterated that the Right to Privacy is a part of the constitutional Right to Life. The central government has shown disdain towards this judgment by launching aadhaar related projects on the basis of biometrics which is untested and untried, and which have surveillance, tracking, profiling, tagging and convergence at its core.
UIDAI had set up a Biometrics Standards Committee which revealed that ’the biometrics will be captured for authentication by government departments and commercial organisations at the time of service delivery.’ The commercial organisation mentioned herein is not defined. The working paper of the UIDAI revealed that the ’UID number will only guarantee identity, not rights, benefits or entitlements’. It is also said that it would not even guarantee identity, it would only provide ’aid’ in identification. In fact it makes right to having rights conditional on having biometric aadhaar.
Notably, Biometrics Standards Committee had categorically stated that UID/aadhaar’s is meant only for “civilian application” but the order on aadhaar enabled biometric attendance system has been extended to defence employees as well. The fact remains UID was first adopted by USA’s Department of Defence, later by NATO. It has subsequently been pushed through World Bank’s eTransform Initiative in partnership with France, South Korea, Gemalto, IBM, L1, Microsoft, Intel and Pfizer. Some of them have signed agreements with UIDAI. This constitutes breach of national security.
Across the globe very stringent data privacy law has been framed wherein one’s personal data cannot be used by anyone including the government without your specific consent. But in India there is no data protection law. Aadhaar is akin to a piece of collar which the transnational powers want to tie on the neck of Indian citizens. Government has allowed itself to be misled and it has failed to protect personal sensitive information which has already gone to foreign companies.
It must be recalled that Dr. Manmohan Singh as Prime Minister had distributed Unique Identification (UID)/ Aadhaar numbers among the villagers of Tembhali village in Nandurbar District of Maharashtra on 29th September 2010. “The Aadhaar number will ease these difficulties in identification, by providing a nationally valid and verifiable single source of identity proof. The UIDAI will ensure the uniqueness of the Aadhaar numbers through the use of biometric attributes (Finger Prints and Iris) which will be linked to the number”.
It has now come to light as per a RTI reply of April 2015 that out of 83.5 crore aadhaar numbers issued so far, only 2.19 lakh i.e. 0.03 % comprised of them who did not have a pre-existing ID proof. It shows how Indians were taken for a ride.
It must 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. Since 1857, fingerprint identification methods have been used by police agencies in India and around the world to identify suspected rebels, political dissidents and criminals. The method is unfolding to indiscriminately profile citizens in general to identify them. The UID/aadhaar project, however, stores the biometric data forever.
It should be noted that in its report to Parliament, the Parliamentary Standing Committee on Finance 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." Countries like China, Australia, UK and France have also rejected it.
This open declaration of war against citizens’ sensitive personal information like biometric data by transnational entities and governments captured by them paves way for the enslavement of present and future generations through aadhaar database that lies on cloud beyond Indian jurisdiction. Such initiatives must be stopped and boycotted else it will spread its tentacles in every sphere of life and mobility in the country.
Notably, central government itself has filed several written affidavits in the Hon’ble Court contending that right to privacy is a fundamental right. It is remarkable that one former Union Law Minister has complained to the Prime Minister informing him about the blunders being committed by the law officer in question.
There is a compelling logic for rejection of those parties which implicitly or explicitly support tracking, profiling, databasing and mortgaging of citizens’ rights and their sovereignty under the dictates of their donors and non-state actors. The biometric idea is aimed at making citizens transparent before the all mighty Governments so that Government, their servant can remain opaque to safeguard the interests of undemocratic and ungovernable social control technology companies.
In a case of breach of trust central government has proposed to make aadhaar mandatory although the very first promise which legally questionable UIDAI made in its aadhaar enrolment form is/was that it is “voluntary”.
This Public Statement is a follow up of the Statement of Concern against UID/aadhaar issued by 17 eminent citizens at a Press Conference at Press Club of India in New Delhi on 28th September 2010. These citizens included Justice VR Krishna Iyer, Retired Judge, Supreme Court of India, Prof Romila Thapar, Historian, K.G.Kannabiran, Senior Civil Liberties Lawyer, Kavita Srivastava, PUCL and Right to Food Campaign, Aruna Roy, MKKS, Rajasthan, Nikhil Dey, MKKS, Rajasthan, S.R.Sankaran, Retired Secretary, Government of India, Upendra Baxi, Jurist and ex-Vice Chancellor of Universities of Surat and Delhi, Uma Chakravarthi, Historian, Shohini Ghosh, Teacher and Film Maker, Amar Kanwar, Film Maker, Bezwada Wilson, Safai Karamchari Andolan, Trilochan Sastry, IIMB, and Association for Democratic Reforms, Prof. Jagdish Chhokar, ex- IIMA, and Association for Democratic Rights, Shabnam Hashmi, ANHAD, Justice A.P.Shah, Retired Chief Justice of High Court of Delhi and Deep Joshi, Independent Consultant.
A Dalit activist who was one of these eminent citizens said, "This project wants to fix our identities through time. Even after that we are dead. The information held about us will be fixed to us by the UID number. Changing an identity will become impossible. We are working for the eradication of the practice of manual scavenging, for rehabilitation of those who have been engaged in manual scavenging, and then leaving behind that tag of manual scavenger. How can we accept a system that does not allow us to shed that identity and move on? How can a number that links up databases be good for us?"
We reiterate our demand that Bills like Human DNA Profiling Bill 2015 and projects like biometric aadhaar "should be halted before it goes any further”.
1. Prof. Anil Sadgopal, Scientist, All India Forum for Right to Education (AIFRTE), Bhopal, Email: firstname.lastname@example.org
2. Prof. Kalpana Kannabiran, Director, Council for Social Development, Hyderabad, Email: email@example.com
3. Prof (Dr) Mohan Rao, Centre of Social Medicine and Community Health (CSMCH), Jawaharal Nehru University (JNU), New Delhi, Email: firstname.lastname@example.org
4. Dr Meher Engineer, Scientist, former President, Indian Academy of Social Science, Kolkata Email: email@example.com
5. Ram Bahadur Rai, noted senior journalist, Email: firstname.lastname@example.org
6. Dr Babu Rao Kalapala, Scientist, formerly with National Institute of Chemical Technology, Hyderabad, Email: email@example.com
7. Kavita Krishnan, Secretary, All India Progressive Women Association (AIPWA), Email: firstname.lastname@example.org
8. Prof D M Diwakar, Professor of Economics, A N Sinha Institute of Social Studies, Patna, , Email: email@example.com
9. Arun Kumar, former Member, Press Council of India, Indian Journalists Union, General Secretary, Bihar Working Journalists Union & President, The Times of India Newspaper Employees Union, Patna, Email: firstname.lastname@example.org
10. Sankar Ray, veteran journalist, Email: email@example.com
11. N D Jayaprakash, Disarmament Researcher & veteran activist seeking justice for victims of Bhopal disaster, Email: firstname.lastname@example.org
12. Qaneez Sukhrani, urban affairs analyst, Pune, Email: email@example.com
13. Kshetrimayum Onil, Lead Coordinator, REACHOUT, Manipur Email:firstname.lastname@example.org
14. Shabnam Hashmi, social activist, Anhad, Email: email@example.com
15. Irfan Ahmed, General Secretary, All India Tanjin-e-Insaf, Bihar, Email: firstname.lastname@example.org
16. Guman Singh, Himalaya Niti Abhiyan, Himachal Pradesh, Email:email@example.com
17. Dr Umakant, Human rights advocate & independent scholar, New Delhi, Email: firstname.lastname@example.org
18. PT George, Intercultural Resources, Delhi, Email: email@example.com
19. Wilfred D’ Costa, Indian Social Action Forum, Delhi, Email: firstname.lastname@example.org
20. Prakash K Ray, Editor, bargad.org, Email: email@example.com
21. Gopal Krishna, Member, Citizens Forum for Civil Liberties (CFCL), Email: firstname.lastname@example.org