SEBI and PFRDA: Not Aadhar for Aadhar's Existence

In an interview on NDTV’s ‘Buck Stops Here’, Barkha Dutt asked Nandan Nilekani, “UIDAI does not have parliamentary backing... So, why hasn’t parliament been able to endorse it all these years?" 

Nandan responded to that “UIDAI has been set up on an executive order” charge with a nonchalant: “Oh, it happens all the time. SEBI (Securities Exchange Board of India) and PFRDA (Provident Fund Regulatory & Development Authority) were both set up first and then enactments were passed."

Chalk and Cheese Comparison

Well Nandan's argument is completely over the top since it is based on an apples-to-oranges comparison, as can be made out from the distinctions summarized below:

1. SEBI and PFRDA, unlike UIDAI, are regulatory, i.e., ‘watchdog’ entities. UIDAI, on the other hand, is an operational, or, if I may, ‘workhorse’ body. 
   
2. SEBI and PFRDA are both not concerned with sensitive issues like citizenship, illegal migration, national security, etc. UIDAI relates to all such sensitive matters. 
3. The creation of SEBI and PFRDA was neither rejected nor opposed by Parliament. UIDAI was rejected by the 31-member Parliamentary Standing Committee on Finance, and hence it lacks legislative sanction.  
4. Neither SEBI nor PFRDA had any systemic loopholes that could be potentially exploited to confer benefits (such as subsidies, etc.) on illegal migrants. UIDAI, by enrolling all residents of India (lawful or otherwise), will surely lead to misuse of welfare schemes and wasteful outflows.  
5. SEBI and PFRDA did NOT entail the collection of personal (biographic and biometric) data by private parties (i.e., enrollers). UIDAI does. This raises questions on risks associated with data misuse or misappropriation, identity theft, etc. 
6. When SEBI and PFRDA were set up, they did NOT involve any infrastructure creation on as large a scale as UIDAI. So huge amounts of money have been invested on UIDAI with no accountability or transparency. 
7. Neither SEBI nor PFRDA violated any constitutional processes or parliamentary prerogatives. UIDAI did. This is a serious lapse since UIDAI is expected to generate revenues (through online authentication of ID).
8. While SEBI and PFRDA have quasi-judicial powers and functions, UIDAI is a purely executive outfit.  

Conclusion

There many other ways in which the existence of UIDAI, or the circumstances thereof, can be deemed to be incongruent and incompatible with that of either SEBI or PFRDA. But, that would be tantamount to beating a dead horse. Wouldn’t it? 

Bottom-line: Questions do persist about the aadhar (foundation) for the Aadhar scheme. And, drawing parallels with either SEBI or PFRDA is only obfuscating the issue with an obscure, tenuous argument!!

More Questions on Aadhar: A Follow-up Piece

My previous blog post looked into some aspects of the UIDAI Project. With my appetite for curiosity not fully satiated, I dug deeper into the antecedents of the project. A lot of unanswered questions is what my quest for the truth yielded. The details follow.

Residents of India

It can be intuitively discerned that the term “residents of India” includes the following classes of persons:  

1) Indian citizens residing in India:  

In accordance with express powers vested under Article 11 of the Constitution, the Indian Parliament enacted the Citizenship Act, 1955. This Act pertains to the acquisition and determination of Indian citizenship.  

Further, in exercise of the powers conferred under S. 18 (1) and (3) of the Citizenship Act, 1955, the Central Government has made The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003.

2) Foreign nationals residing in India:  

The Foreigners Act, 1946 and Registration of Foreigners Act, 1939 provide correspondingly for the exercise of certain powers in respect of and the registration of foreigners entering, being present in and departing from India. 

Both Acts provide for penalties against any person who contravenes, or attempts to contravene or fails to comply with, any provision of any rule made under the Acts. It is a also relevant to note that the Supreme Court too has asserted that the Government has unrestricted right to expel a foreigner [Hans Muller of Nurenburg v. Superintendent Presidency Jail, Calcutta (AIR 1955 SC 367); Sarbananda Sonowal v. Union of India (AIR 2005 SC 2920)]. 

In other words, there is no provision in the Constitution (or any statute under it) fettering this discretion of the Government.

Compilation of Citizenship and Residency Data

In accordance with Articles 11 and 246 (List 1 of the Seventh Schedule) of Constitution; and under the provisions of the Citizenship Act, 1955 and the Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, the Parliament has entrusted the statutory “Office of Registrar General & Census Commissioner, India, Ministry of Home Affairs, Government of India”, appointed under the Census Act, 1949, with the additional functions of:

A) Preparing and maintaining the National Population Register (NPR), which is a comprehensive identity database of all “usual” residents of the country. 

The creation of the National Population Register (NPR) is the first step in the preparation of the National Register of Indian Citizens (NRIC). Out of the universal data-set of residents, the subset of citizens would be derived after due verification of the citizenship status. Therefore, it is compulsory for all usual residents to register under the NPR.

B) Registering every citizen of India and issuing National Identity Card and National Identity Number of all citizens; and,

C) Maintaining a National Register of Indian Citizens.

On and from the date of commencement of the Citizenship (Amendment) Act, 2003, the Registrar General, India, appointed under sub-section (1) of Section 3 of the Registration of Births and Deaths Act, 1969 shall act as the National Registration Authority and he shall function as the Registrar General of Citizen Registration.

The objectives of creating this identity repository are two-fold:

• (i) Helps in better utilization and implementation of the benefits and services under govt schemes;
• (ii) Improving national planning and security.
  
  

Billion-Dollar Questions: First Set

When there is already a statutory body/agency/entity, viz., National Registration Authority, lawfully operating with parliamentary sanction with effect from 7^th January 2004 (the day The Citizenship (Amendment) Act, 2003 came into existence), why was UIDAI created to replicate the effort of capturing resident and citizen information, without Parliamentary sanction and in violation of the Constitution?

 

What is the ulterior motive behind the project being implemented despite being rejected by the Parliamentary Standing Committee on Finance?

Powers of Central Executive   

The Central Executive is entitled to exercise executive functions with respect to all those subjects which fall within the legislative sphere of Parliament (Article 73). 

The Constitution makes no attempt to define ‘executive power’, or to enumerate exhaustively the functions to be exercised by the Executive, or to lay down any test to suggest as to which activity or function would legitimately fall within the scope of the executive power. The truth is that the executive power of a modern state is not capable of any precise or exhaustive definition. 

The government in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the state. The scope of the executive power may be said to be residual, that is to say, any function not assigned to Parliament or the Judiciary may be performed by the Executive [Jayantilal Amrith Lal v. FN Rana; AIR 1964 SC 648], or governmental functions that remain after the legislative and judicial functions are taken away [Chandrika Jha v. State of Bihar; AIR 1984 SC 322].  

The executive power of the Union of India, as is well-known, is vested in the President [Article 53(1). The President exercises his functions either directly or through officers subordinate to him. Further, executive power, which runs co-extensively with the Legislative, is carried on by the Ministers and other officials. In order to effectively discharge its duties, each Ministry in the Government functions through various bodies and agencies, attached offices, boards, councils, bureaus, authorities, divisions, corporations, associations, commissions, undertakings, directorates, departments, etc.  

So long as the Executive enjoys majority support in the Legislature, it can go on discharging its policies and no objection can be taken on the ground that a particular policy has not been sanctioned by legislation. This, however, is subject to limitations, e.g., the executive cannot ignore a constitutional prohibition or provision. 

Thus, the executive power is to be exercised in accordance with the Constitution.

Independent Bodies

Thus, the Union Government enjoys the power to set up, within the constitutional and legislative framework, any independent body, agency, entity, authority, commission, corporation, etc. For e.g., various authorities created, through Acts of Parliament, include The Airports Authority of India; The National Highways Authority of India; National Biological Authority  (autonomous and statutory body under Biological Diversity Act, 2002); Steel Authority of India Limited (set up as a corporation); Sports Authority of India Limited () (set up as a society); Telecom Regulatory Authority of India Limited; etc.

Often such independent and autonomous bodies, with revenue generating potential, are established as legal entities with juridical personalities (a.k.a. artificial person), such as bodies of persons, corporations, etc., that are recognised by law as the subjects of rights and duties.

Such juristic entities have perpetual succession and a common seal with powers: (a) to acquire, hold and dispose of property, both movable and immovable; and (b) to contract, and to sue or be sued.

UIDAI Status

The UIDAI though, which is envisaged to earn revenues through identity verification, is set up as an attached office to the Planning Commission under notification A-43011/02/2009-Admn.I dated 28^th Jan. 2009.  

Of course, the Planning Commission itself, set up through a resolution of Cabinet Secretariat, Government of India, is an advisory body, which only makes recommendations to the Cabinet. The UIDAI on the contrary is a operational outfit that executives some function.

Billion-Dollar Questions: Second Set 

Why did the UPA-II Government set up the UIDAI as a body / authority with no juridical personality? Was it to ensure that privacy laws of the land could be skirted with impunity, and yet no liability? 

Why was Parliament bypassed and a scheme implemented unlawfully, thereby in contravention of the Constitution? 

Or, was it simply to confer benefits and legalise residence of illegal migrants in the country? 

Will Sri. Nandan Nilekani come clean with answers to the above questions? Or, am I perhaps expecting too much from a man who has much to hide?

Is Aadhar indeed Niraadhar? A Techno-Legal Assessment

It is election season again in India. Battles royale, of the ballot kind, are being waged day in and day out. Arguments, rebuttals, allegations, counter-accusations...they are all running thick and fast in a race against time. Every candidate in the fray is out to get a substantial mindshare of the electorate and to woo constituents to cast votes favorably.

One such premier, gladiatorial match-up is in the parliamentary constituency of Bangalore-South. In the heat and dust of his campaign, it is alleged that Sri. Ananth Kumar-ji, the BJP candidate for the Bangalore-South parliamentary constituency, called ‘Aadhar’ as ‘Niraadhar’.

This had Sri. Nandan Nilekani-ji, up in arms and crying foul with a swift rebuttal in his blog post of 25th March 2014. His defense was pretty comprehensive.

So then, who was right about the project? To get to the truth, I began an earnest, unbiased and independent search for the pros and cons of the Aadhar Scheme. I hope the summary of my findings will help the reader separate the wheat from the chaff.

Objective or Purpose

First I looked for the objective or purpose with which Aadhar was conceived. Surprisingly, there is no clear-cut objective or purpose mentioned on the UIDAI website.

The “UIDAI Strategy Overview” document indeed does throw some light on the objectives, which essentially revolve around: 

1. The inability to prove identity being a barrier preventing the poor and underprivileged from accessing benefits and subsidies. 
2. The provision of a mechanism, which not only uniquely identifies a person, but also ensures instant identity verification. Such a system eliminates frauds and duplicate identities, since individuals will no longer be able to represent themselves differently to different agencies.  

What struck me as odd though was why, even after (a) close to 70 years of independence, and (b) almost 50 years of enactment of The Registration of Births and Deaths Act, 1969, any individual lawfully residing in the country should have difficulty establishing his or her own identity through a birth certificate or otherwise.

Also, it seems counter-intuitive that frauds and duplicate identities are due to individuals representing themselves differently to different agencies. I would imagine systemic loopholes are exploited and leakages occur because individuals represent themselves differently with the same agencies.

Nevertheless, I next reviewed The National Identification Authority of India Bill, 2010 hoping to find some answers for the ‘Purpose and Objects’ of the Aadhar Scheme. The Bill states that it is: 
“A BILL 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 matters connected therewith or incidental thereto.”  

I just can’t fathom why the Bill doesn’t read “...individuals legally residing in India...”? Why should identification numbers be issued to and benefits conferred on individuals unlawfully residing in India?

It is truly ironical that in a bid to plug loopholes, the UIDAI has created another loophole in the system. Besides, couldn’t the same objective (of unique identification of legal residents) be met through suitable amendments to The Registration of Births and Deaths Act, 1969 and The Census Act, 1948? Puzzling, to say the least!

Legality of UIDAI

Article 11 of the Constitution of India reads: 
“Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” 

“Unique identification (of residents)” is a “matter relating to citizenship”. It is unambiguous that only Parliament is empowered to legislate in such matters. In exercise of its power, the Parliament has enacted The Citizenship Act, 1955.

Further, The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003 have provided for the issue of “National Identity Card” and unique “National Identity Number” to every citizen. Couldn’t these Rules have been amended to provide unique “National Identify Number” to foreign citizens legally residing in India?

More importantly, the UIDAI came into existence under the Planning Commission through an Executive Order. This has brought a ‘matter relating to citizenship’ into the realm of the Executive wing of government. In other words, the Executive has wrested a power vested in Legislative to establish UIDAI. This is in violation of our Constitution.

The question that then begs to be asked: Why was it necessary to bypass Parliament on a matter of such grave national importance? Baffling, indeed!

Privacy Concerns 
Article 21 of the Constitution of India reads: 

“No person shall be deprived of his life or personal liberty except according to procedure established by law.” 

The Supreme Court has held in the Unnikrishnan [1993 AIR 2178] and Puthumma [(1978) 2 SCR 537] cases that ‘personal liberty’, enshrined in Article 21, is of the widest amplitude. Further, the Apex Court in the Govind v. State of MP [1975 AIR 1378] case has held that ‘personal liberty’ covers the ‘right to privacy’.

Therefore, it follows, based on harmonious construction of the Constitution, that “no person shall be deprived of...the right to privacy except according to procedure established by law.”  

The capture of biometric data of citizens under an executive order is NOT in accordance with the procedure established by law under the Constitution.

So then, why was the Constitution subverted to establish UIDAI? Confounding!

Introduction of Applicant 
The ‘Aadhar Card Application form’ provides an option for the introduction of applicants, who cannot provide proofs of their respective identities, addresses and dates of birth.

Interestingly, there is no provision or procedure for such "introducer" to vouch for the legality of the residential status in India of the ‘Aadhar Card applicant’. On top, there is no criminal culpability for introducing an ‘illegal migrant’. This no doubt makes it easy for illegal immigrants to get the ‘Aadhar Card’.

The fundamental question still remains: Why even bother to give an Aadhar card to illegal immigrants (instead of repatriating them to their respective countries of origin) and confer benefits on them at the taxpayers’ expense?

Biometric Data 
It is well-known that quality of lighting affects the accuracy of iris scanners. Iris recognition is also susceptible to poor image quality; and, it is sensitive to shaking of head. Cataract surgery too can change iris texture in such a way that iris pattern recognition is no longer feasible or the probability of falsely rejected subjects is increased. Furthermore, alcohol consumption causes recognition degradation as the pupil dilates / constricts causing deformation in the iris pattern.

Fingerprints too may be distorted and become unreadable or unidentifiable if the person’s fingertips have dirt on it, or if the finger is twisted during the fingerprinting process. Injuries (deliberate or otherwise), trauma or burns to fingertips can all cause fingerprints to become different or unreadable.

What measures and processes has UIDAI envisaged and used to nullify or minimize the impact of the above technological shortcomings in the use of biometric data for unique identification? The UIDAI website reveals very little on this. Hence, quality and reliability of Aadhar data is an area of uncertainty.

Redundancy of Data Collection   
Copious amounts of data on the poor and underprivileged sections of society are already available with various other government bodies and agencies. Reports of the Department of Food & Public Distribution put the number of ration cards (BPL, APL and AAY cards) at almost 25 crores. Survey data of the Ministry of Health and Family Welfare puts the average size of a household at 4.9 (Page 23, National Family Health Survey-3, 2005-06, Vol. I). This means that data of about 120 crore people, who are the beneficiaries of ration cards, is available with government. 

Further, according to the “Report to the People” of Ministry of Rural Development, over 13 crore job cards have been issued till 2^nd February 2014. Published data of the Reserve Bank of India show that 1.3 crore Kisan Photo Cards have been issued.

Making ample provisions for redundancy and duplication in data (due to fraud or otherwise), it can be safely assumed that (photo-based) identification information of at least 80-90 crore people is available. Besides, data of all residents and households is available in the National Population Register of the Census Organisation of India.

Where then was the need to reinvent the wheel by initiating the Unique Identification Project? Mystifying indeed! 

Financial Impact of UIDAI 

Sri Nandan Nilekani-ji in his blog-post claims that the total expenditure of UIDAI has been just Rs. 3,813 crores as of December 2013.

However, it has been estimated that the Indian government will end up paying Rs. 113 per person for enrollment. Keeping in mind that about 60 crore Aadhar cards have been issued till date, the total cost works out to almost Rs. 7,000 crores. This clearly does not include expenditure on organization, advertising, equipment, infrastructure, overheads, operations, etc. of UIDAI.

What then is the actual (accurate) investment till date on the Aadhar Project? Well, your guess is as good as mine.

Conclusion

In view of the above, it seems Sri. Anant Kumar-ji has enough grounds to validly dub Aadhar as “Niraadhar”!