The UID: Why is the UPA Reluctant to Debate and Legislate- I?

“What is so wrong about the UID project? It isn’t like the Government is asking for details that are not publicly available or which we haven’t furnished to tax authorities or for getting a driving license. In these days of social media where all our details are there for everyone to see, don’t you think we are being unnecessarily suspicious of a project which merely seeks to create an identity database?“…

This is the standard reaction whenever anyone questions the legitimacy of the UID project. And the problem is most people; even the educated ones find these questions fair enough to not probe the issue any further. They draw a sense of security from the fact that these details are sought, not by a private player who wants to pester you with constant calls about insurance plans or housing loans, but by the Government.

Despite all the scams and scandals that have plagued the UPA regime, people do not seem to be asking a few basic questions:

1. I don’t care what you need my details for, but what is your power to ask for these details? Quo Warranto?
2. Why are these details being sought through a simple notification? Why is there no legislation to govern this exercise?
3. Assuming I am satisfied that you have the power to seek the information through a notification, what use will the information be put to? Is the use/objective a specific one, or is it as vague as it gets?
4. Is there enough co-relation between the amount of information sought and the objective it is sought for?
5. Are the means for collection of the information reasonably fool-proof? Or are you relying on hearsay to verify/authenticate my details?
6. Is the technology used to verify my identity, robust enough to distinguish between me and an inanimate object?
7. How are you going to keep the information safe? Do you have enough technological and legislative safeguards to protect my privacy?

Before I proceed to address some of these issues, here’s bit of history on the UID project. The concept of national identification is not the brainchild of the UPA. This was conceived of by and under the NDA regime, and was christened the Multipurpose National Identity Card (MNIC) scheme as part of the BJP’s IT vision. The BJP’s proposed method was to amend the Citizenship Act to make it mandatory for citizens to have the ID card as proof of citizenship.

Clearly the object was to stem the rot of illegal immigration into the country and prevent the creation of a lebensraum. Little did the BJP realize that the very same project would be employed by the UPA to further the cause of illegal immigration and consolidation of vote banks? How exactly does the UID aid this patently anti-national agenda will be discussed, among other things, as part of this series of posts.

Based on the material available publicly, it appears that once the UPA smelled yet another opportunity to increase the numbers of its most pampered vote bank, it went about the issue of national identification in the most surreptitious way possible, which only the UPA is capable of.

In stark contrast to the BJP’s proposal to amend the Citizenship Act to provide for a national identification scheme, the UPA chose to constitute an executive body called the Unique Identification Authority of India (UIDAI) without mooting a legislation or debate. To lend respectability to the UIDAI, Mr.Nandan Nilekani was appointed as the Chairman of the UIDAI (who will probably be the fall guy if things go wrong with the UIDAI, which I expect them to.)

The UIDAI was expected to function as an extension of the Planning Commission, and was charged with the duty of drawing up policies and plans for the UID scheme, implementing the scheme and was to “own and operate the UID database and be responsible for its updating and maintenance on an ongoing basis“.

The question is why was the executive route opted for without a thought being spared for parliamentary processes which ought to be the option of first choice on topics which have serious implications for privacy, demographics and consequently national security?

When the same question was put to the Ministry of Planning by the Parliamentary Standing Committee chaired by Shri Yashwant Sinha, following was the response from the Ministry:

“Based on the proposal that formation of the UIDAI under the Planning Commission would ensure better coordination with different departments, it was decided that initially the UIDAI may be notified as an executive authority under the Planning Commission and the issue of investing the UIDAI with statutory authority and the reconciliation of such statutory role with National Registration Authority (NRA) can be considered at an appropriate time.”

What on earth is this supposed to mean? Are considerations, such as ease of administration and coordination, supposed to prevail over fundamentals such as the need for legislative approval and statutory safeguards to protect identities of the citizens?

What surprises me is the sequence of events:

1. The UIDAI is constituted on January 28, 2009 under the stewardship of Nandan Nilekani, and the process of issuing “Aadhaar” numbers/Unique ID numbers was kick-started.
2. In December 2010, almost 2 years after the UIDAI was set up, the National Identification Authority of India Bill, 2010 (NIDAI Bill) is introduced in the Rajya Sabha.
3. During the pendency of the Bill, Aadhaar numbers continue be issued. In fact, the scope of the activity was expanded from Below Poverty line families to include all residents and categories of individuals.

If the intention behind introducing NIDAI Bill was to seek the Parliament’s imprimatur, where was the need to continue issuing Aadhaar numbers, considering the Bill could be rejected by both houses of the Parliament? What about the taxpayers’ money that was being spent on an exercise which could ultimately be held unconstitutional by the Parliament, and hence rejected? Also, what was the legal basis for setting up of UIDAI and issuance of Aadhaar numbers?

When these questions were posed to the Ministry of Planning by Shri Yashwant Sinha, Chairman of the Parliamentary Standing Committee, the buck was passed on to the legal clearance given by the Ministry of Law and Justice through the Attorney General of India. Below is the opinion of the Attorney General:

“The competence of the Executive is not limited to take steps to implement the law proposed to be passed by Parliament. Executive Power operates independently. The Executive is not implementing the provisions of the Bill. The Authority presently functioning under the Executive Notification dated 28th January, 2009 is doing so under valid authority and there is nothing in law or otherwise which prevents the Authority from functioning under the Executive Authorisation.

The power of Executive is clear and there is no question of circumventing Parliament or the Executive becoming a substitute of Parliament. On the contrary, what is sought to be done is to achieve a seamless transition of the authority from an Executive Authority into a statutory authority.

All the expenditure which is being incurred is sanctioned by Parliament in accordance with the financial procedure set forth in the Constitution. If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued. This contingency does not arise.

The present Bill being implemented without Parliament’s approval does not set a bad precedent in the Parliamentary form of Government. On the contrary, the fact that the Authority is sought to be converted from an Executive Authority to a statutory authority; it underlines the supremacy of Parliament.”

Let’s demystify the response. The Attorney General was of the opinion that the UIDAI could legitimately function under “Executive Authorisation” without legislation. Assuming this is the correct position of the law (which I will explore in detail in the next post), where was the need to introduce the NIDAI Bill? Simply put, if the Government was of the opinion that it was well within its rights to create the UIDAI without having to approach the Parliament, then why introduce a Bill subsequently?

The opinion of the Attorney General is inherently contradictory. On one hand, he categorically states that UIDAI’s creation and functioning under “Executive Authorization” was within the bounds of the Constitution. And on the other, he states- “If the Bill is not passed by any reason and if Parliament is of the view that the Authority should not function and express its will to that effect, the exercise would have to be discontinued”

How can both these views hold water simultaneously? Clearly, something is wrong somewhere and the mandarins in the Ministry of Law and Justice did not think this through.

As for the expenditure, the answer is really baffling and cryptic. What did the Attorney General mean when he said “This contingency does not arise”? Was he saying that the NIDAI Bill was so watertight that the Parliament would not reject it? What was the basis for such confidence? If he was cognizant of the possibility of the Bill being rejected, doesn’t this mean the expenditure incurred in the UIDAI’s functioning and issuance of Aadhaar numbers was a total waste, which could and ought to have been avoided?

Extracted below is the observation and recommendation of Shri Yashwant Sinha on the Bill:

“13. In view of the afore-mentioned concerns and apprehensions about the UID scheme, particularly considering the contradictions and ambiguities within the Government on its implementation as well as implications, the Committee categorically convey their unacceptability of the National Identification Authority of India Bill, 2010 in its present form. The data already collected by the UIDAI may be transferred to the National Population Register (NPR), if the Government so chooses. The Committee would, thus, urge the Government to reconsider and review the UID scheme was also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament.”

I will discuss these “concerns and apprehensions” in the next post.