National Food Security Bill adversely impacts household entitlements due to biometric Aadhaar
Unlawfulness inherent in biometric based proposed Aadhaar
for 60 crore and 61 crore citizens under National Population Register (NPR)
"the insistence of UID card is no longer treated as mandatory",
Punjab & Haryana High Court but GOI is making it mandatory
Gopal Krishna
Biometric aadhaar based per capita entitlements under National Food Security Bill will adversely impacts household entitlements of citizens. Monsoon Session of Parliament should ensure that when the food security ordinance is replaced with the Bill it is delinked from the biometric aadhaar based per capita approach in favour of household entitlements. Punjab & Haryana High Court's order records that "the insistence of UID card is no longer treated as mandatory" but governments are GOI is making it mandatory without legal mandate.
Unlawfulness is inherent in biometric based proposed aadhaar for 60 crore and 61 crore citizens under National Population Register (NPR).
Citizens have a right to refuse turning over our biometric details to Planning Commission and the Ministry of Home Affairs or any 'welfare agency'. The Citizenship Act, 1955 is "an Act to provide for the acquisition and determination of Indian citizenship". The Citizenship Rules, 2009 provides for creation of a Register of citizens saying, "The Central Government shall maintain a register containing the names and other details of the persons registered or naturalised as citizen of India". The Act and the Rules do not provide for creation of Citizens Register based on biometric data.
The report of the Parliamentary Standing Committee on Finance reads (in Para 3© of the section on 'Observations/Recommendations': "The collection of biometric information and its linkage with personal information without amendment to the Citizenship Act 1955 as well as the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules 2003, appears to be beyond the scope of subordinate legislation, which needs to be examined in detail by Parliament." The report was submitted to the Parliament on December 13, 2011. There is no consequence for not giving one's biometric details for the NPR program or UID program.
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 in the Parliament about the commencement of operation of Unique Identification Authority of India (UIDAI) before the enactment of the National Identification Authority (NIDAI) Bill, 2010 is revealing. He replied, "The Attorney General (AG) has opined that the UIDAI could continue with its work till the enactment of the Bill." (italics supplied)
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/AADHAARproject and the act of subordinate legislation for biometric data collection, there is no legal basis for the continued work of the UIDAI.
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."
Attorney General's opinion provided defense of UIDAI's work only till the enactment of the Bill. This defence too now stands exhausted because the Bill is neither pending nor has it been passed.
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."
The NIDAI Bill introduced on December 3, 2010 in the Rajya Sabha was meant for legalizing and legitimizing the on-going 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.
The NIDAI 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".
The per capita approach carries a risk that people will enrol "fake" household members to inflate their entitlements. To prevent such fraud, demands for integrating the PDS with biometrics are bound to arise. Pilots integrating cash transfer schemes with the Unique Identification (UID)/Aadhaar number have had dismal reviews so far. After months, coverage remains poor, the attempted integration has led to disruptions, and people face harassment. Linking the PDS with biometrics, if it happens, is unlikely to be different, says Reetika Khera who teaches economics at the Indian Institute of Technology. She has underlined three disadvantages of the per capita approach as against "per household" approach. The latter helps to ensure that people are clear about their entitlements. It opens the door to hassles and harassment. The transition to a per capita system will not only be painful, but also introduce further delays in the implementation. Not surprisingly, "per capita" approach faces opposition from the states as it is likely to be disruptive.
The Writ Petition (Civil) of Justice K S Puttaswamy, former judge of the Karnataka High Court is pending before Supreme Court against the UID/aadhaar project. The petition echoes 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.
In a related development, on March 2, 2013, Chief Justice headed bench of Punjab and Haryana High Court heard a case against the UID/Aadhaar issued the following order saying, "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. Admittedly, this issue is pending before the Supreme Court and therefore, on the last date of hearing i.e. on 19.2.2013, we did not observe
anything on this issue. 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 Incharge 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. On this aspect, we had adjourned the matter as Mr.Kaushal, wanted to have instructions. Today, short affidavit of Mr.M.Shayin, IAS, Deputy Commissioner, UT, and Chandigarh is filed stating that the aforesaid instructions have been reviewed and now the insistence of UID card is no longer treated as mandatory. No further orders are required to be passed in this petition, which is accordingly disposed of."
Citizens Forum for Civil Liberties (CFCL) has been pursuing a campaign against the biometric based Unique Identification (UID)/Aadhaar Number, National Population Register (NPR), National Intelligence Grid (NATGRID), National Counter Terrorism Centre (NCTC), Radio Frequency Identification (RFID) and Direct Cash Transfer since 2010. It had appeared before the Parliamentary Standing Committee on Finance that rejected the UID Bill on December 13, 2011 in its report to the Parliament. It was an applicant before the National Human Rights Commission (NHRC), which in an order date December 27, 2012 addressed to Secretary, Union Ministry of Home Affairs communicated human rights concerns regarding UID and Radio Frequency Identification (RFID) submitted to it by CFCL. CFCL is an applicant before the Parliamentary Standing Committee on Subordinate Legislation 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." CFCL is an applicant before the Press Council of India on the complicity of some media organizations in the matter of enrolment for legally questionable biometric identification.
{Gopal Krishna is a social worker. He is convener of Citizens Form for Civil Liberties (CFCL)}
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