Parliament’s Standing Committee on Finance dismissed with scathing comments an attempt by the Manmohan Singh government to give the UIDAI project the sanction of law. No effort has been made to remedy this serious shortcoming in the huge exercise launched by Nandan Nilekani with the blessings of Montek Singh Ahluwalia’s Planning Commission. In effect, there is no law that makes it mandatory for a citizen to possess the Aadhaar number (or card) and yet we are being railroaded by some states – notably Delhi – to accept its inevitability. ~ Usha Ramanathan
There is currently no law that covers the UID project.
On 28 January 2009, an executive notification set up the UIDAI. It was to be the responsibility of the UIDAI to lay down plans and policies to implement the UID scheme, which would include giving UID numbers to residents, interlinking UID with partner databases on a continuous basis, to keep the database updated, and "take necessary steps to ensure collation of National Population Register (NPR) with UID (as per approved strategy)". It was also to "identify new partner/user agencies"; to "issue necessary instructions to agencies that undertake creation of databases… (to) enable collation and correlation with UID and its partner databases". The Planning Commission would be the nodal agency and the UIDAI “shall own and operate the database".
Since at least September 2009, concern about the consequences of enrolling and databasing people began to be voiced. At a meeting on 23 November 2009, Mr. Nandan Nilekani said that state governments, who were being approached to act as Registrars, that is those who would collect the data and pass it on to the UIDAI, were asking how they were to respond if queried about the authority under which they would hand over enrolment data to the UIDAI. Then there was the vacuum in law on privacy which no one denied was going to be impacted by a project such as this.
It was at a meeting called by the Planning Commission on 6 May 2010, that Mr. Nilekani conceded that a law would be drafted to govern the project. On 30 June 2010, a draft Bill was uploaded on the UIDAI website, and kept there for 14 days for comments. On 3 December 2010, the National Identification Authority of India Bill 2010 was introduced in the Rajya Sabha with scarcely any changes from the UIDAI’s June 30 draft. The finance minister had apparently objected to a clause that would exempt the UIDAI from all taxes and duties, and that was deleted; and the definition of ‘resident’ was reworked with the Registrar General of India. By this time, enrolment, the issuing of numbers and databasing had already begun, from 29 September 2010.
The NIAI Bill was referred to the Parliamentary Standing Committee on Finance (SCF) which, after yearlong consideration of the Bill, and necessarily of the project, rejected both- the proposed law and the project itself. ‘The Committee’, the SCF concluded, "would, thus, urge the Government to reconsider and review the UID scheme as also the proposals contained in the Bill in all its ramifications and bring forth a fresh legislation before Parliament."
In July 2011, when some of us deposed before the SCF, its members were only talking about tweaking the law and seeing how they could help it reach a legally acceptable form. By December 2011, after they had had time to study the project and hear both proponents and detractors, the SCF had had a total reversal of opinion. What was it about the project, and the Bill, that led the SCF to this rejection?
For a start, the SCF was scathing about the UIDAI proceeding with the project when the law was still in the process of being devised; this is "unethical and violative of Parliament’s prerogatives", the SCF said.
Then, they were concerned that the UID is for all residents, not only citizens.
The UID scheme, the SCF said, "is riddled with serious lacunae and concern areas". The UID scheme "has been conceptualised with no clarity of purpose …. it is being implemented in a directionless way with a lot of confusion… [It has] failed to take concrete decisions on important issues such as identifying the focused purpose of the resident identity database; methodology of collection of data; … conferring statutory authority to the UIDAI since its inception …" Without a law, how would the UIDAI address key issues of security and confidentiality of information, the SCF asked, and how would it initiate proceedings and penalise breaches?
Overlapping of various initiatives, duplication of efforts and lack of coordination raised concerns about cost, and that it was being done in an "overbearing manner without regard to legalities and other social consequences". The committee was also "unhappy", they said, "to observe that the UID scheme lacks clarity on many issues such as even the basic purpose of issuing `aadhaar’ number." And, "although the scheme claims that obtaining aadhaar number is voluntary, an apprehension (has) developed .. that, in future, services/benefits including food entitlements would be denied in case they do not have aadhaar number."
The United Kingdom had disbanded its ID cards project for reasons including the huge costs, the complexity, because it is "untested, unreliable and unsafe technology", and the possible risk to the safety and security of citizens. The SCF was impatient about the unwillingness to draw lessons from this, and related, global experience.
Reflecting the concerns that had been brought before the SCF, they were categorical that "considering the huge database size and possibility of misuse of information, the committee are of the view that enactment of national data protection law … is a prerequisite for any law that deals with large scale collection of information from individuals and its linkages across separate databases. In the absence of data protection legislation, it would be difficult to deal with issues like access and misuse of personal information, surveillance, profiling, linking and matching of databases and securing confidentiality of information, etc."
On 28 September 2010, 17 eminent citizens including Justice VR Krishna Iyer, Prof Romila Thapar, SR Sankaran, Aruna Roy, Justice AP Shah, KG Kannabiran, Bezwada Wilson and Prof Upendra Baxi had released a statement of concern in which they had spoken of the no-law status of the project, and of the disconcerting fact that no feasibility study had been done before launching the project. The SCF iterated these concerns.
Further, "despite adverse observations by the UIDAI’s Biometrics Standards Committee," the SCF said, "the UIDAI is collecting the biometric information …. Considering the possible limitation in applications of technology available now or in the near future, the committee would believe that it is unlikely that the proposed objectives of the UID scheme would be achieved."
This severe report on the proposed law and the project provoked no response from the government. Except for a document from the UIDAI defiantly claiming that all was well with biometrics, there has only been silence. On 31 January 2013, confusion was manifest when ministers in the Union cabinet said that they were unclear about the project, whether it is a number or a card, and what its link was with the National Population Register. This was four years after the project had been set off, and a year and two months after the SCF report.
(The author is an academic activist. She has researched the UID and its ramifications since 2009)