Home Ministry’s Population Register Worse than Prisoner Identification
Privacy Bill should precede creation of NPR, RFID & Intelligence Grid
Biometric data collection an act of “illegitimate advances of the (police) state” & businesses
New Delhi 11/11/2011: Quite like prisoners whose biometric data like finger prints can be collected only under the Identification of Prisoners Act, 1920, it is quite outrageous that National Population Register (NPR) is taking biometric data of every resident and citizen of India disregarding absence of any legislative mandate for it.
In the case of prisoners their biometric data is required to be destroyed on their acquittal but in the case of NPR and Centralized Identities Register (CIDR) of Unique Identification (UID)/Aadhaar Number, the same will be recorded for ever. Are residents and citizens worse than prisoners?
In a letter to Planning Commission, Citizens Forum for Civil Liberties (CFCL) has drawn their attention towards the relationship between NPR, UID, Radio Frequency Identification (RFID) for vehicles and identification of prisoners.
The Citizenship Act, 1955 is “an Act to provide for the acquisition and determination of Indian citizenship”. The Citizenship Rules, 2009 provides for creation of a Register of citizens saying, “The Central Government shall maintain a register containing the names and other details of the persons registered or naturalised as citizen of India”. The Act and the Rules do not provide for creation of Citizens Register based on without biometric data. As a consequence what the Union Home Ministry is through NPR is without any legal mandate. The same hold true for National Intelligence Grid (NATGRID) which is under construction. It is not meant to be accountable to the Parliament and to the citizens.
According to the Manual of Instructions for filling up of the NPR Household Schedule, 2011 prepared by the Office of the Registrar General & Census Commissioner (ORG&CCI), Union Ministry of Home Affairs, the objectives of NPR involves “Collection of personal details of all residents of the country and Capture of photograph and finger prints of all residents who are of age 15 years and above in villages/urban areas.” The data collection for preparation of NPR is undertaken along with the House listing Operations of Census 2011. It categorically states that “NPR will contain the details of all the ’usual residents’ of the country regardless of whether they are citizens or non-citizens.” If that is the case how can it qualify to be an act under the Citizenship Act and Rules given the fact that the Register will have both citizens and non-citizens?
As per the Manual, NPR’s utility lies in creation of “a comprehensive identity database in the country. This would not only strengthen security of the country but also help in better targeting of the benefits and services under the Government schemes/programmes and improve planning.” It further states, “It may be noted that nationality declared by respondent does not confer any right to Indian Citizenship”. In such a case isn’t Census itself quite sufficient for it?
In fact Census Commissioner is supposed to gather the data of population under the Census Act, 1948 on the pre-condition that it would be kept secret and it will not be revealed even to the courts.
Unlike the data collected under Census Act which is confidential as per Section 15 of the Act, the provisions of the Citizenship Act and the citizenship or nationality Rules that provides the basis for creation of the Register of citizens do not provide for confidentiality. The fact is that there is no mention of capturing biometrics in the Citizenship Act or Citizenship Rules. It is clear that the collection of biometrics is not a statutory requirement. This is not permissible under also Collection of Statistics Act. But both Unique Identification Authority of India (UIDAI) and ORG&CCI which are creating the NPR are collecting biometric data as well. It is not a question of duplication alone; it is a question of treating citizens worse than prisoners.
The Identification of Prisoners Act provides that “Every person who has been, (a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards, or of any offence which would render him liable to enhanced punishment on a subsequent conviction, or (b) ordered to give security for his good behaviour under Section 118 of the Code of Criminal Procedure, 1898, shall, if so required, allow his measurements and photograph to be taken by a Police Officer in the prescribed manner.” The Act is available on Internet.
It further provides that “Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.”
As per Section 5 of the Act, “If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to the effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:”
Providing for a dignified treatment of the citizens of India, Section 15 of the Census Act establishes that “Records of census not open to inspection nor admissible in evidence”. It reads: No person shall have a right to inspect any book, register or record made by a census-officer in the discharge of his duty as such, or any schedule delivered under section 10 and notwithstanding anything to the contrary in the Indian Evidence Act, 1872, no entry in any such book, register, record or schedule shall be admissible as evidence in any civil proceeding whatsoever or in any criminal proceeding other than a prosecution under this Act or any other law for any act or omission which constitutes an offence under this Act." Demolishing this dignity of the citizens, the Union Home Ministry is dehumanizing citizens by according them a status inferior to that of prisoners.
As per Section 7 of Identification of Prisoners Act, “Where any person who, not having been previously convicted of an offence punishable with rigorous imprisonment for a term of one year or upwards, has had his measurements taken or has been photographed in accordance with the provisions of this Act is released without trial or discharged or acquitted by any court, all measurements and all photographs (both negatives and copies) so taken shall, unless the court or (in a case where such person is released without trial) the District Magistrate or Sub-divisional Officer for reasons to be recorded in writing otherwise directs, be destroyed or made over to him.”
But if one looks at the definition of the "Biometrics" which “means the technologies that measure and analyse human body characteristics, such as ’fingerprints’, ’eye retinas and irises’, ’voice patterns’, "facial patterns’, ’hand measurements’ and ’DNA’ for authentication purposes” as per Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 under section 87 read with section 43A of Information Technology Act, 2000. It may be noted that last date of bid submission for opening of bids for biometric enrolment was 8th Nov 2011. The rural bids and urban bids for biometric enrolment were supposed to be opened on 9th Nov 2011. Even as these exercises are unfolding, the fact remains biometric data like finger print, voice print, iris scan and DNA do not reveal citizenship.
Officially, Home Ministry’s NPR which is mentioned in Column 7 of the Aadaar/UID Enrolment Form seeks NPR Survey Slip No. is aimed at creating a comprehensive database of all usual residents in India based on digitization of demographic data captured during house listing operation in 2010 and collection of biometric data (photo, 10 fingerprints, iris of both eyes) for age 5+. Census Commissioner who is ex-officio Registrar General of India (RGI) has awarded the NPR project to Department of Information Technology for 19 States and 2 Union Territories that covers a total population of 49 crores in urban and 13 crores in rural areas, 74 zones and 410 districts.
It is relevant to note that Section 2 of the Information Technology Act defines "data" as “a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.” It does not explicitly mention biometric data but given the fact that it refers to “whatever can be processed in a computer system or computer network, and may be in any form or stored” it seems implicitly included.
It may be noted that these exercises precede the proposed enactment of 36 page Privacy Bill, 2011 that defines "Record" as "any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or photograph or DNA" in its Section 2 (p). The Bill defines "surveillance as covertly following a person or watching a person, placing secret listening or filming devices near him, or using informants to obtain personal information about him" in Section 2 (o). Section 60 (1) refers to “National Data Controller Registry” that is proposed to be established as “an online database” and “appropriate electronic authentication protocols”. It may be noted that DNA Profiling Bill is also in the pipeline.
It is not made clear as to how is “Central Identities Data Repository” being prepared by UIDAI and also proposed by NIAI Bill related to "National Data Controller Registry" which is envisaged under Privacy Bill, 2011. The NIAI Bill defines CIDR as "a centralised database in one or more locations containing all aadhaar numbers issued to aadhaar number holders along with the corresponding demographic information and biometric information of such individuals and other information". Illustrating how right to privacy is being reduced to electronic services, Section 48 of the Information Technology Act and Section 2 of the Privacy Bill provide for the Cyber Regulations Appellate Tribunal.
With the information infrastructure related instruments unfolding, “This government will end the culture of spying on its citizens. It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop. So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports,” UK’s Deputy Prime Minister Nick Clegg said in a speech in British House of Commons. He added, “We won’t hold your internet and email records when there is just no reason to do so. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question. Schools will not take children’s fingerprints without even asking their parent’s consent. This will be a government that is proud when British citizens stand up against illegitimate advances of the state.” The speech of the British Deputy Prime Minister is available on the internet; the India’s Union Home Minister ought to take note of it to avoid the fate of Tony Blair and his UK’s Identity Cards Act, 2006. Both have been abandoned.
Unlike UK, as per ORG&CCI, NPR process include collection of details including biometrics such as photograph, 10 fingerprints and Iris information for all persons aged 15 years and above. This is be done by arranging camps at every village and at the ward level in every town. Each household is required to bring the Acknowledgement Slip to such camps. In the next step, data is printed out and displayed at prominent places within the village and ward for the public to see. After authentication, the lists are sent to the UIDAI for de-duplication and issue of UID Numbers. The cleaned database along with the UID Number will then be sent back to the ORG&CCI and form the NPR.
It is evident that ORG&CCI has amalgamated its two independent mandates using two Forms for each household in India. The first form relates to the House listing and Housing Census that has 35 questions relating to Building material, Use of Houses, Drinking water, Availability and type of latrines, Electricity, possession of assets etc. The second form relates to the NPR that has 14 questions including name of the person, gender, date of birth, place of birth, marital status, name of father, name of mother, name of spouse, present address, duration of stay at present address, permanent address, occupation, nationality as declared, educational qualification and relationship to head of family. There are 10 columns in the Aadaar/UID Enrolment Form.
ORG&CCI admits that “all information collected under the Census is confidential and will not be shared with any agency - Government or private.” But it reveals that “certain information collected under the NPR will be published in the local areas for public scrutiny and invitation of objections. This is in the nature of the electoral roll or the telephone directory. After the NPR has been finalised, the database will be used only within the Government.”
While dual work of Census and NPR has blurred the line between confidential and non-confidential, UIDAI has gone ahead to seek consent for “sharing information provided…to the UIDAI with agencies engaged in delivery of welfare services" as per Column 9 of the UID/Aadhaar Enrolment Form. Unmindful of the consent given by residents of India (which is being ticked automatically by the enroler in any case as of now), the fact is this information being collected for creating CIDR and NPR is being handed over to private foreign biometric technology companies like Safran group, a French corporation with 30 % stake of French government.
It has come to light that Safran has opened an office in the Hindustan Times building in New Delhi. On July 19, 2011, L-1 Identity Solutions which has been awarded contract by UIDAI and is part of World Bank’s eTranform Initiative (for transformational government in 14 developing countries including India, Indonesia, Pakistan, Nepal, Bangladesh and others) has been bought over by Safran after Committee on Foreign Investment in the United States resolved their national security concerns.
Earlier, a Statement of Concern by eminent citizens including former judges of the Supreme Court and High Court and academicians had sought halting of NPR and UID/Aadhaar like identification exercises that has been rejected in countries like UK, China, USA, Philippines and Australia citing national security concerns and grave violation of civil liberties.
In such a context, the enactment of Privacy Bill, 2011 should precede initiatives like Public Information Infrastructure, NPR and UID/Aadhaar else the very purpose of the proposed legislation is defeated. Before the creation of Data Protection Authority of India (DPAI) as envisaged under Section 49 of the Privacy Bill and Central Electronic Services Delivery Commission (CESDC) under Section 8 of the Electronic Delivery of Services Bill, 2011 with proven impeccable judicial competence, the implementation of all biometric data collection related programs must be stopped both in private as well as in the government. The supersession of the adjudication by DPAI and CESDC in the proposed legislations compromises their independence and does not inspire confidence.
A Washington Post news report "Supreme Court worries that new technology creates ‘1984’ scenarios" published on November 9, 2011 that records the deliberation in the US Supreme Court on November 8, 2011 merits attention. “You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month. No problem under the Constitution?” asked John G. Roberts Jr, Chief Justice of US Supreme Court.
In an elaborate exchange in which the Big Brother of George Orwell’s novel “1984” was referenced six times and the nine judge bench wondered about a person’s reasonable expectation of privacy in such context. GPS device is a tracking device that utilizes the Global Positioning System (GPS) technology. The issue before the court is: Whether the US Constitution or any democratic constitution allows the Government to put a tracking device on a car without either a warrant or the owner’s permission. It is quite clear that NPR, RFID, UID/Aadhhar and proposed DNA Database is meant for tracking citizens for ever. Undertaking a surveillance or identification exercise on all the citizens of India is indeed a matter of judicial concern. Aren’t fellow citizens and Indian judiciary listening?
India’s National Human Rights Commission (NHRC) too has expressed grave concerns regarding discrimination, protection of information and identity theft in its written submission to the Parliamentary Standing Committee on Finance in the matter of biometric date based identification. It is reported in NHRC newsletter of August 2011. NHRC’s views are relevant for NPR as well.
Meanwhile, newspapers are flooded with advertisements of Election Commission of India, UIDAI and NPR for providing ID proof. The former provides proof of citizenship the latter ones merely identifies their existence for commercial purposes. Informed and enlightened citizens know which identity proof to adopt and which ones to reject.
For Details: Gopal Krishna, Citizens Forum for Civil Liberties (CFCL), Mb: 9013754587,