States And Other Agencies Must Unsign Their MoUs With Illegal And
Illegitimate UIDAI And Submit Their Comments On Human DNA Profiling Bill
By Gopal Krishna
12 August, 2015
Countercurrents.org
12th AUGUST, 2015: After hearing the 12 digit biometric aadhaar number
case, Supreme Court’s Bench of Justices J. Chelameswar, S.A. Bobde and
Justice C.Nagappan has ruled that “The Union of India shall give wide
publicity in the electronic and print media including radio and
television networks that it is not mandatory for a citizen to obtain
an Aadhaar card; The production of an Aadhaar card will not be
condition for obtaining any benefits otherwise due to a citizen” on
11th August, 2015.
Taking note of the order it is high time states and other agencies
unsigned the MoUs they have signed with illegal and illegitimate
Unique Identification Authority of India (UIDAI). To begin with states
ruled by opposition parties should pave the way instead of waiting for
the court to tell them. Countries where rule of law prevails, MoUs are
subservient to law of the land.
This means that central and state governments are under compulsion to
stop the structural seeding of aadhaar numbers in the databases with
immediate effect. Without waiting for any further instruction,
Election Commission of India will have to stop the linking of aadhaar
with Voter ID and its seeding with electoral database with aadhaar
numbers, which was envisaged by WIPRO in its vision document submitted
to the processes committee of planning commission. Henceforth, no
public or private entity can demand the aadhaar number from Indian
Residents and citizens.
On the issue of right to privacy as a fundamental right, the Court’s
order reads:
“We are of the opinion that the cases on hand raise far reaching
questions of importance involving interpretation of the Constitution.
What is at stake is the amplitude of the fundamental rights including
that precious and inalienable right under Article 21. If the
observations made in M.P. Sharma (supra) and Kharak Singh (supra) are
to be read literally and accepted as the law of this country, the
fundamental rights guaranteed under the Constitution of India and more
particularly right to liberty under Article 21 would be denuded of
vigour and vitality. At the same time, we are also of the opinion that
the institutional integrity and judicial discipline require that
pronouncement made by larger Benches of this Court cannot be ignored
by the smaller Benches without appropriately explaining the reasons
for not following the pronouncements made by such larger Benches. With
due respect to all the learned Judges who rendered the subsequent
judgments - where right to privacy is asserted or referred to their
Lordships concern for the liberty of human beings, we are of the
humble opinion that there appears to be certain amount of apparent
unresolved contradiction in the law declared by this Court.”
It added, “Therefore, in our opinion to give a quietus to the kind of
controversy raised in this batch of cases once for all, it is better
that the ratio decidendi of M.P. Sharma (supra) and Kharak
Singh(supra) is scrutinized and the jurisprudential correctness of the
subsequent decisions of this Court where the right to privacy is
either asserted or referred be examined and authoritatively decided by
a Bench of appropriate strength.”
And it ordered, “We, therefore, direct the Registry to place these
matters before the Hon’ble the Chief Justice of India for appropriate
orders.”
It must be recalled that ahead of the launch of 12 digit biometric
unique identity number (aadhaar) in September 2010, the attached
statement of concern was issued by 17 eminent citizens led by late
Supreme Court judge, Justice V R Krishna Iyer, Prof. Upendra Baxi,
noted Jurist and Justice A P Shah, current Chairman, Law Commission of
India and former Chief Justice of Delhi High Court and Madras High
Court urging the government to stop this project because of
undemocratic process, absence of cost: benefit analysis, questionable
constitutionality, absence of privacy law, surveillance, profiling,
tracking and convergence.
It is remarkable that while the government and the court has taken
more than three years to realize that right to privacy is under
unprecedented threat from demographic and biometric profiling, the
Statement of Concern had underlined it way back on 28th September,
2010.
Ahead of the order of 11th august, 2015 the attached public statement
has been issued by 22 eminent and concerned citizens like Prof Anil
Sadgopal, noted educationist, Prof. Kalpana Kannabiran, noted jurist
and Dr Meher Engineer, Scientist drew the attention of the state
towards the lessons from the freedom struggle and sought halting of
the biometric profiling project and introduction of the Human DNA
Profiling Bill with immediate effect to safeguard civil liberties and
national security.
Biometric profiling is an act of surveillance which is a “shameful
act” of supervising and imposing discipline on a subject through a
hierarchized system of policing. (Michel Foucault, 'Discipline and
Punish: The Birth of the Prison', New York, 1977). In this seminal
work Foucault examines the systems of social power through the lens of
the 18th century philosopher Jeremy Bentham, the originator of the now
iconic Panopticon. This Panopticon was/is a design for a prison in
which the inmate’s cells are arranged in a circular fashion around a
central guard tower. The architectural configuration allows for a
single guard’s gaze to view all inmates, but prevents those inmates
from knowing exactly when they are being watched. It has been observed
that “The major effect of the Panopticon: to induce in the inmate a
state of conscious and permanent visibility that assures the automatic
functioning of power.” This design as a “generalized model of
functioning and a way of defining power relations in terms of the
everyday lives of men.”
It is a case of a deepening of everyday surveillance. It is similar to
what was done under the Britain’s Habitual Criminals Act of 1869
required police to keep an “Alphabetical Registry” and
cross-referenced “Distinctive Marks Registry.
The idea of using dactyloscopy, or fingerprinting, for criminal
identification surfaced in a letter to the publication Nature, from a
Henry Faulds, a British physician which was deployed by colonial
masters in India after First War of India's Independence in 1857.
Wittingly or unwittingly the biometric information based
identification exercise is being implemented under the influence of
transnational companies like Safarn Group and Accenture, international
financial institutions like World Bank Group and defence conglomerates
like NATO. It appears that corporate funding to the ruling political
parties is facilitating the decision. It merits probe by the Supreme
Court.
Unlike the earlier attempts the Database of Union Ministry of Home
Affairs (MHA) and illegal and illegitimate Unique Identification
Authority of India (UIDAI) that registers the names and distinctive
marks builds on the biometric information of the human body that was
used for tracking the misdeeds of the criminals and for identifying
prisoners. This is an act of political record keeping. It is an act of
using human body as data.
Notably, during the hearing in the Supreme Court, MHA officials were
ever present besides personnel from the ministry of communications.
The proposed convergence of biometric information with financial and
personal data such as residence, employment, and medical history
heralds the beginning of the demolition of one of the most important
firewalls in the structure of privacy.
This mandatory ID (under NPR and CIDR) in every context acts not as a
“unique personal identifier”. This identifier is to everyday
surveillance as the discovery of longitude was to navigation.
The lure of biometric technology companies reminds one of Mary
Howitt's children's poem, "The Spider and the Fly". In this poem, the
spider cunningly tempts and eventually persuades the fly to come into
his parlour. At first the fly is hesitant; knowing that all who enter
never return. Before long, however, the fly's curiosity and vanity get
the better of him and he enters the parlour.
Like the fly, citizens and States are slowly being lured into an
intricate web of deception. The poem ends with the spider warning
alert citizens to think before acting: "And now dear little children,
who may this story read, To idle, silly flattering words, I pray you
ne'er give heed: Unto an evil counsellor, close heart and ear and eye,
And take a lesson from this tale, of the Spider and the Fly."
If a technology defines a situation as real, it is real in its
consequences. The personal information is a growing commodity. Our
personal information is a valued resource. According to the Canadian
Internet Policy and Public Interest Clinic, "once a biometric
identifier is compromised, it stays compromised".
In 'Perceptions of Privacy and the Consequences of Apathy' (published
in Dalhousie Journal of Interdisciplinary Management – Volume 4 –
Spring 2009 3), Sir Ken Macdonald, the Director of Public Prosecutions
in UK is quoted as warning that the penalties of adopting a "Big
Brother surveillance state could lead to serious consequences and
suggests that "we should take very great care to imagine the world we
are creating before we build it. We might end up living with something
we cannot bear".
At present ours is a limited government as it is limited by the
Constitution of India which “we the people” gave to ourselves. Such
biometric data and DNA Banks is creating a solutions architecture for
unlimited government that turns citizens into subjects and slaves.
In such a context there is a compelling logic for Bihar Government and
Janata Dal (United) to refrain from sending DNA samples of 50, 000
Biharis to Prime Ministers’ Office because it ends of legitimizing the
illegal and illegitimate process of indiscriminate biometric and DNA
profiling which central government is proposing to undertake.
Notably, Human DNA Profiling Bill, 2015 has been drafted secretively
amidst dissenting reports of Dr Usha Ramanthan and Sunil Abraham, the
two of the members of the drafting committee.
It has been uploaded for public comments. The last date for comments
is 20th August, 2015. It is available at
(http://www.dbtindia.nic.in/archives/6992) for feedback at
[email protected] or by post at The Director, Department of
Biotechnology, Ministry of Science & Technology, Government of India,
R. No. 713, Block 2, C.G.O. Complex, Lodhi Road, New Delhi – 110 003.
It reveals how central government failed to undertake such processes
before the collection of biometric data like fingerprints and iris
scan. In its absence, the collection of biometric data is beyond the
legal mandate of the government a fact which even Yashwant Sinha
headed Parliamentary Standing Committee on Finance noted in its report
to the parliament.
Both aadhaar and the Bill end up promoting biometric casteism which
undermines fundamental rights, democracy and country’s sovereignty
under the influence of transnational biometric and DNA software
corporations.
FOR DETAILS: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL),
Mb:08227816731, 09818089660, E-MAIL:[email protected]
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