81 - Opinion: Aadhaar, rights and the state by Usha Ramanathan - Indian Express

Opinion: Aadhaar, rights and the state by Usha Ramanathan - Indian Express

Opinion: Aadhaar, rights and the state

The problem is that Aadhaar was never about individual choice, and was never intended to be voluntary.

Written by Usha Ramanathan | Updated: October 8, 2015 12:58 pm

Has the project really been voluntary? Has the project done what is needed to protect privacy? Should the executive be given freedom to frame whatever policy it will? And, would Mahatma Gandhi have been with Nilekani in wanting the population of India fingerprinted and iris-scanned?

Nandan Nilekani’s plea that the Supreme Court “tweak” its order of August 11 in his article in these pages (‘Why Supreme Court judgment on Aadhaar calls for an appeal’, September 15) is innocent of the experience that people have had with the unique identification (UID) project in the past five years. Why does the court order trouble him? Has the project really been voluntary? Has the project done what is needed to protect privacy? Should the executive be given freedom to frame whatever policy it will? And, would Mahatma Gandhi have been with Nilekani in wanting the population of India fingerprinted and iris-scanned?

The last is easily answered. In 1906, Gandhi was in South Africa, fighting the registration and fingerprinting of Indians in the Transvaal. This provocation led to mass resistance and protest, deliberate disobedience of the law, trial and punishment, and, as Charles DiSalvo records in The Man before the Mahatma, Gandhi was arguing: “It was not a question of thumb or fingerprints, but this was a thing that touched on their liberty.” That he would have endorsed a system where registration with fingerprints and iris-scans was pushed through on the threat of exclusion from food and fuel, schooling, old-age support, work, marriage, caste certificate, vaccination, child care — that seems a perfect description of what would not have found sympathy with Gandhi.

The UID was never about individual choice. It was never intended to be voluntary; it was only intended to be marketed as being voluntary. Even in 2010, the UIDAI strategy overview document admitted that while the official line would be that enrolment was not mandated, “This will not however, preclude governments or registrars from mandating enrolment.” And that has, in fact, been the strategy. Except that the Supreme Court decided that the project needed to be reined in, when confronted with concerns about lawlessness, national security, personal security and privacy, using the population of the country to experiment with biometrics, engaging companies with dubious credentials to hold and handle our data, surveillance, tracking, profiling, the untested claims about plugging leakages and the threat of exclusion.

The UIDAI and the government have responded by refusing to comply with the orders of the court, and that is how, contrary to law, the database has been built and multiple databases “seeded” with the number.

The Supreme Court has passed orders telling the government and the UIDAI and all other agencies what they may not do five times. Each time the orders have been brazenly flouted. On September 23, 2013, the court said that no one shall “suffer for not getting the Aadhaar card”. The government, oil marketing companies and the UIDAI shed the pretence of voluntariness and rushed to the court asking that it accept that the UID be mandatory. On November 26, 2013, the court refused to oblige. So, the order of the court was simply ignored, and coercion continued. On March 24, 2014, the court, having received complaints from the public that its order had had no effect, directed that “all authorities… modify their forms/ circulars/ likes so as not to compulsorily require the Aadhaar number”. This was not done. Instead, it was asserted that the “system” would not accept a form without the UID or enrolment ID. And, anyone without either of the two would be shepherded to an enrolment booth, which amounted to mandatory enrolment on the UID database. This was then passed off as “voluntary” and as being done with “informed consent”.

On March 16, the court again said: “In the meantime, it is brought to our notice that in certain quarters, Aadhaar identification is being insisted upon by the various authorities… We expect that both the Union of India and states and all their functionaries should adhere to the order passed by this court on September 23, 2013.” This gentle chiding produced no results.

Before all this, the parliamentary standing committee had asked that the proposed law, and the project itself, be sent back to the drawing board. The executive has carried on as if the law has nothing to do with it.

On August 11, the court asked the government to stop using the number and the information that is with the UIDAI for anything other than the PDS and LPG — exceptions, it must be said, that leave the poor unprotected, especially as none other than the Election Commission seems to respect this order. Six years after the project began, the UIDAI now admits that the biometrics of our “working population… adds another challenge to achieving uniqueness” and has set up a “competence centre” to research it.

When the case is heard by a larger bench, to which it was referred on Wednesday, the court is going to have to find answers to what the project is doing to people’s rights, the lawlessness of the state, the relationship between the people and the state, and about the emerging global geopolitics centred around population data.

The writer works on the jurisprudence of law, poverty and rights.

75 - Decoding the Aadhaar judgment: By Usha Ramanathan- Indian Express

Decoding the Aadhaar judgment: No more seeding, not till the privacy issue is settled by the court

The challenge to the Aadhaar project is, of course, much more than privacy. Much, much more.

- See more at: http://indianexpress.com/article/blogs/decoding-the-aadhar-judgment-no-more-seeding-not-till-the-privacy-issue-is-settled-by-the-court/#sthash.lZqSwGBV.dpuf

By Dr Usha Ramanathan

The three-judge bench of the Supreme Court hearing the cases challenging the UID/Aadhaar project has decided that there “appears to be certain amount of apparent unresolved contradiction in the law declared by this Court” in relation to privacy as a fundamental right.

It worries the court that reading the 1954 judgment in MP Sharma’s case and the 1963 judgment in Kharak Singh “literally” and accepting it as “the law of this country”, would denude “the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21” of “vigour and vitality”. Yet, the judges see a “certain amount of apparent unresolved contradiction” in the decisions, and, in the interests of “institutional integrity and judicial discipline”, they have decided to refer the case to be resolved by a larger bench. That is their view, and the case has moved on.


The challenge to the UID project is, of course, much more than privacy. Much, much more. Convergence, surveillance, national security, matters of personal liberty, the power the data controller wields over the data subject, the inversion of the relationship between the state and the citizen, exclusion, data as property, the failure to make a law, the deliberated flouting of court orders, the conversion of voluntary enrolment into mandatory enrolment on threat of being left out, untested biometrics, no informed consent about the uses to which the data will be subjected, the absence of an exit option to get out of the UIDAI data base, the lack of accountability if there is a failure in the system and someone suffers in consequence, the handing over of the NPR data to the UIDAI which will then ‘own’ it (according to the notification that set it up)


…. The upside is supposed to be its potential to plug the leaks and exorcise the ghosts – a claim that rests on faith in technology generally, and not on the way the UID project has unfurled. The rampant outsourcing of data collection, the private entrepreneurs who have been inducted to collect the data, the difficulty for manual workers, for instance, to use their fingerprints as their signature, the foreign firms who hold and manage the data and who have uncomfortably close relationships with American and French intelligence agencies….
The cases before the court list them out comprehensively.

The Attorney General claims the 90 crore people they say have been enrolled did so voluntarily, and with informed consent. That the flouting of orders of the court that said UID cannot be made mandatory for availing services, and the threat of exclusion from services and scholarships, and the inability to get married, register property or rental agreements or marriage, explains why people felt pushed to enrol – demonstrates what a long way that was from volition and consent. This makes the interim order of the court of extreme significance. What does it say?


One, that the government shall widely publicise, in the electronic and print media including radio and television networks, that it is not mandatory for a citizen to obtain an Aadhaar card.

Two, the production of an Aadhaar card will not be condition for obtaining any benefits otherwise due to a citizen.

Three, the UID number or Aadhaar card may be used in the PDS “in particular for the purpose of distribution of foodgrains etc., and cooking fuel, such as kerosene” and in LPG distribution. This, of course, excludes those requiring state assistance from the right to privacy, and it is not clear why the court thought that waiving the right to privacy of the poor was all right. In any event, even here, the rule of ‘no compulsion’ applies – that production of the Aadhaar card cannot be a condition for getting what is otherwise their due; and nobody can be compelled to enrol on the UID data base.

Importantly, the UID number “will not be used by the respondents for any (other) purpose”. School admissions, scholarships for students, visiting prisoners in jails (as has been ordered by the Telangana government), passport verification, banks, registration of marriage, wills, property sales or rentals, vehicle registration, mobile phones – will all be illegal after this order.

Watch video


‘Seeding’ is a matter of grave concern in the UID project. This is about the introduction of the number into every data base. Once the number is seeded in various data bases, it makes convergence of personal information remarkably simple. So, if the number is in the gas agency, the bank, the ticket, the ration card, the voter ID, the medical records and so on, the state, as also others who learn to use what is called the ‘ID platform’, can ‘see’ the citizen at will.

This idea of seeding has been put to rest by the interim order which categorically states: “The information about an individual obtained by the UIDAI while issuing an Aadhaar card shall not be used for any other purpose, save as above (for PDS and for fuel).” Seeding in various data bases will, by this order, have to cease forthwith. So, the Election Commission’s exercise in seeding their data base with the UID number will have to stop. So, too, for instance, the sharing of the NPR data with the UIDAI. This is an important privacy protection that the court has ensured till the petitions challenging the UID project is finally heard and decided. The only exception that the court has made, unsolicited it would seem, is in the event of a court directing the use of the data ‘for purposes of criminal investigation’. The UIDAI has been proclaiming that their data is incapable of being used for criminal investigation; but it seems the court has not paid heed to this cry of protest.

The government’s denial of the existence of the fundamental right to privacy is, of course, not innocent at all. This happened at the same time that the government was arguing in another court down the corridor that privacy was the reason it wants to retain the defamation clause in criminal law. It is also the time that it is considering the passage of a Human DNA Profiling Bill, aspiring to create a DNA Data Bank.

– Dr Usha Ramanathan works on the jurisprudence of law, poverty and rights. She writes and speaks on issues that include the Bhopal gas disaster, mass displacement, civil liberties, criminal law and the environment. © The Indian Express Online Media Pvt Ltd -


See more at: http://indianexpress.com/article/blogs/decoding-the-aadhar-judgment-no-more-seeding-not-till-the-privacy-issue-is-settled-by-the-court/#sthash.lZqSwGBV.dpuf

3 - Eyeing IDs by Usha Ramanathan - Indian Express

Eyeing IDs by UshaRamanathan

UshaRamanathan  : Sat May 01 2010, 02:30 hrs

Three recent initiatives of the government need to be investigated before any decision about adopting them is taken.

In November 2009, newspapers reported Union Home Minister P. Chidambaram's statement that the government would soon be setting up a DNA data bank. In December 2009, he announced the setting up of the NATGRID. "Under NATGRID", he is reported to have said, "21 sets of databases will be networked to achieve quick seamless and secure access to desired information for intelligence and enforcement agencies." The project is expected to be completed in 18 to 24 months. In July 2009, with Nandan Nilekani taking charge, the Unique Identification Authority of India (UIDAI) started its work on creating a database that would give every resident a number which is intended to become a unique, ubiquitous and universal identity. While the stated purpose of the DNA bank and the NATGRID is to meet the threat posed by terrorism, the UID is given a gentler visage; it is to be promoted as a means of removing "one of the biggest barriers preventing the poor from accessing benefits and subsidies", which according to this understanding, is the "inability to prove identity".

Are these benign arrangements of data to enable efficient functioning? What is it that makes some of us unable to recognise innocence in these sweeping "identity" controls that are being remorselessly let loose in our midst? Why is it that some cabinet ministers have voiced concerns about the possibility of misuse of NATGRID, as reported on February 14?

The motivation for the DNA bank fundamentally alters the characterisation of citizens and residents. It is based on the perception that the state is at risk from its citizens and residents, and any person could emerge as a terrorist. It is the politics of suspicion, which dramatically erodes the ideas of citizenship, privacy, and minimum-invasion-and-only-when-there-is-reason-why. The state has to be preemptively readied to catch whichever of its 1.4 billion citizens may commit an act of terror. This is notching up the control that the state, and its agents and agencies, has over each individual. Also, that the DNA test is not foolproof is known but often not acknowledged. So, beyond the problem of every citizen and resident as suspect, there is the possibility of error. Recent experience in India with DNA debacles demonstrate the corruptibility of forensic methods — there's many a twist between the scene of the crime and the laboratory. Yet, the presumptions about the infallibility of science and technology — contrasted, often, with human imperfection — will shift the onus to a person accused on the basis of who the DNA bank suggests is suspect. There is danger of DNA and data theft; there is the fact and circumstance of corruption, inefficiency and failing systems which could make the data unreliable; there is, importantly, the irrelevance of this bank to those who enter the country uninvited and unnoticed, which leaves the bane of cross-border terror unaddressed.

The NATGRID converges data from a range of data-holders and places them in the hands of "intelligence" outfits. This is expected to enable them to detect patterns, trace sources for monies and support, track travellers, and identify those who should be watched, investigated, disabled and neutralised. David Headley is its target. And, to get him, all the discrete "silos" of information will be shared with the intelligence agencies. The problem is that the intelligence agencies are not open to question, and are outside even the Right to Information Act. So, while they will be fed information about us, we are not entitled to know who is saying what about us to them, how they are interpreting it, and, most significantly, what use they will make of this information. Place this kind of information in anybody's hands, and its abuse by those who have access to it is inevitable. Concerns about privacy are cast aside and invasion of privacy made a public virtue. The NATGRID is an unqualified statement that the state has a right to know every detail about each of our lives, but we are expressly excluded from knowing what the state and its agencies believe about us, and what they do with what they know. It places extraordinary power in the hands of those who already have access to a vast share of state power that is unaccountable.

There has been much myth creation around the UID: that enrolment will not be mandated but will be voluntary; that it is pro-poor; that only basic information will be gathered. Scratch the surface of these assertions. The creation of the National Population Register, with its element of compulsion, is one aspect of this exercise in creating the UID data base. And there is one fact about the UID that is incontrovertible: that it provides an easy route for the market and the security agencies to identify and profile any person. That is how the UID fits into the larger scheme of monitoring and control and that, as the current discourse reveals, will be its central purpose.

There are those who ask: why should we mind if we have done nothing wrong? But this is not about doing right or wrong. Among many other concerns, it is about letting some persons and agencies know, accurately or mistakenly, all manner of things about oneself. It is about being tracked and tailed. It is about acknowledging that those who may get access to the system may not always be fair, responsible and accountable. It is about recognising that too much power over individuals is a dangerous thing.

The relationship between the state and the people has to be carefully calibrated if absolute power is not to slip in and settle down, and these changes are too significant to happen without an informed debate.

The writer is an independent law researcher

1 - The Personal is the Personal by Usha Ramanathan

The Personal is the Personal

By Usha Ramanathan
Posted: Wed Jan 06 2010, 02:28 hrs

http://archive.indianexpress.com/news/the-personal-is-the-personal/563920/0

The air is thick with schemes that will enable the state, and its agencies, to identify every resident, and to track what they are doing. A home ministry project for creating a National Population Register which will be prepared along with the 2011 Census has been propelled through its pilot stage. Now, an ambitious programme has been launched to load all the residents of the country on to a data base, providing each of us with a unique identity number. What distinguishes this exercise from any other undertaken so far?

First of all, the intention is provide a Unique Identity Number to the whole population, including the just born. The state is to have data on each individual literally from birth to death; and beyond, for a person’s UID is not destroyed at death, merely disabled. The numbers are to be so generated that it will not have to be repeated for between a hundred and two hundred years.

The UIDAI, in its working paper, says that enrolment will not be mandatory, but acknowledges that in practice it is expected not to be voluntary. The ‘Registrars’, who will enroll people on to the data base, will be both private operators and government agencies, and they will be encouraged to insist that they will entertain only those who are willing to enroll. Over a short time, only those with UID numbers may find themselves able to access services. That is the effort.

The UID has nothing to do with citizenship. The information on the UID database is expected to be basic, and to cover all residents: name, date of birth, place of birth, gender, the name and UID numbers of both parents, address, date of death and photograph and fingerprints. This is because the UID is only to identify the individual to the agency that is looking for authentication.

Just on its own, it could even seem benign.

There are two phenomena that take the innocence out of the exercise. The first is ‘convergence’. ‘Convergence’ is about combining information. There are presently various pieces of information available separately, and held in discrete ‘silos’. We give information to a range of agencies; as much as is necessary for them to do their job. The passport agencies do not need to know how many bank accounts you have, or whether you drive a car. The telephone company need not know how you have insured your house. The police do not need to know how often you travel, not unless you are a suspect anyway. It is this that makes some privacy possible in a world where there are so many reasons why, and locations where, we give information about ourselves. The ease with which technology has whittled down the notion of the private has to be contained, not expanded. The UID, in contrast, will act as a bridge between these silos of information, and it will take the control away from the individual about what information we want to share, and with whom.

This is poised to completely change norms of privacy, confidentiality and security of personal information. There are already indications about how convergence will work. Consider the reports that the Apollo Hospitals group has offered to manage health records through the UIDAI. It has already invested in a company called Health Highway that reportedly connects doctors, hospitals and pharmacies who would be able to communicate with each other and access health records. In August 2009, Business Standard reported that Apollo Hospitals had written to the UIDAI and to the Knowledge Commission to link the UID number with health profiles of those provided the ID number, and offered to manage the health records. The terms ‘security’ and ‘privacy’ seem to be under threat, where technological possibility is dislocating many traditional concerns.

The second phenomenon is ‘tracking’. Once the UID is in place, and convergence becomes commonplace, the movement of people, their monies, their activities can be brought together, especially since transactions from buying rice in a PDS shop to receiving wages to bank withdrawals to travel could begin to require the number. There is a difference between people tracking a state, and the state, and the ‘market’ tracking people. The UID is clearly not what it is presented as being: it is not benign, nor a mere number which will give an identity to those who the state had missed so far.

Interestingly, the working paper of the UIDAI starts with a claim that the UID will bring down barriers that prevents the poor from accessing services and subsidies by providing an identity, but soon goes on to clarify that the “UID number will only guarantee identity, not rights, benefits or entitlements”. Given that it is the powerlessness of the poor, inefficiency, the perception of the poor as not deserving of support, sympathy or rights, and the status of illegality foisted on them that stops them from getting what is due to them, and given that corruption and leakages in the system mutate and persist, this quick stepping back is wise indeed.

In the excitement about technology being deployed to do something that has not been done anywhere in the world, the importance of privacy and protection from misuse of personal information is getting eclipsed.

It is significant that the UIDAI working paper makes no mention of national security concerns, and the surveillance, and profiling, possibilities it will create. Yet, the UID is not a project in isolation. The NATGRID, which the UID will facilitate, places the whole population under surveillance; and the home minister is talking about a DNA bank.

Fallibility, the difficulties inherent in reaching those in extreme poverty, the choiceless existence on a database and the possibility of undesirable others getting hold of information only add to the scariness of the scenario that we seem to have accepted without discussion, challenge or debate. And, once accomplished, we would have reached a point of no return.
The writer is an independent law researcher.