Tuesday, June 29, 2010

Appraisal Of National Identification Authority Of India Bill 2010

The National Identification Authority of India Bill 2010 (Bill) has been recently proposed by the Unique Identification Authority of India (UIDAI). The Bill, if made a law, would be called National Identification Authority of India Act, 2010 (Act). Here are some of the salient features of the Bill:

(1) The Bill is still not a valid piece of legislation till it is approved by both the Houses of the Parliament, receives President’s assent and then finally notified in Official Gazette by the Government of India.

(2) The Bill is not a comprehensive one and neither has it intended to cover all the aspects of Aadhar project of India. The Bill’s main objective is to provide legitimacy to the Unique Identification Authority of India (UIDAI) renamed as the National Identification Authority of India (NIDAI) and for matters connected therewith or incidental thereto.

(3) The Bill has picked up many provisions of the Information Technology Act 2000 (IT Act 2000) for various issues. One of them also pertains to the extra territorial application of the Bill.

(4) The Bill is a good piece of work as far as administrative aspects of Aadhar project is concerned. However, it has almost nothing to offer regarding protecting civil liberties of Indians. Privacy issues, data protection issues, etc are missing from the Bill.

(5) By making the IT Act 2000 a base for many of its provisions, the Bill has incorporated the weaknesses and lacunas of the same. It seems the members drafting the Bill did not take pain to do some good research and formulate new and better provisions.

(6) The Bill’s greatest strength is its Public Private Partnership (PPP) Model through which it is seeking the expertise and assistance of various individuals, institutions, etc. The Bill is also great to the extent it catering the requirements of Research and Development regarding some of the most crucial aspects of contemporary times.

(7) The Bill has its own list of Offences and Penalties. The list though not adequate but if supported by different and supplementary legislations would strengthen the Bill. These provisions have been inspired by the IT Act 2000 with all its limitations and demerits.

(8) Provision regarding delegation of authority of the NIDAI is also incorporated to bring flexibility among the functioning of the authority. The only fact that has to be kept in mind is that this delegation must not be abused for private gains of private players.

(9) The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force. Thus, other law would supplement the provisions of this Bill and make it more effective.

In short, this is a great enabling legislation for the UIDAI/NIDAI and its administrative functions. It has taken care of most of the aspects that would allow the authority to perform its functions effectively, transparently and with accountability. Proper care has been taken to use PPP Model as well as to use the expertise of others.

On the negative side, the Act does not cater the civil liberties requirement that is also the toughest challenge before it and the first and foremost challenge for its authority. This may be due to the fact that the Act never intends to cater the civil liberties requirements and has left it for the Indian government through a separate legislation.

The NIDAI would face the challenge of “Unconstitutionality” on two counts. Firstly, the authority must be constituted by a proper law. This requirement would be fulfilled if the Bill is made an enforceable law. The second is that it must not violate the Civil Liberties of Indians. This is a tricky issues and the same has also been avoided by the present Bill. The Indian government has promised to enact laws regarding privacy and data protection very soon.

If the Bill and those laws are combined, they may take care of the constitutionality attacks and the NIDAI may proceed further for its tasks. But for the time being, both Aadhar Project and UIDAI/NIDAI are “Unconstitutional” Project and Authority.

Sunday, June 20, 2010

Protecting Children In Cyberspace

Juveniles or children dealing with cyberspace requires special attention and safeguards. This necessitates both legal and technical measures to be adopted. On the legal side we must have strong cyber law to punish the offender. On the technical side we must have effective software that can prevent potential abuse of children in cyberspace.

These days children are either perpetrator or victim of cyber crimes, cyber bullying, pornography, etc. They must be made suitably aware as well as protected from these cyber threats. After all, human rights protection in cyberspace also includes protection of juvenile’s human rights.

The Human Rights Protection Centre is the “Exclusive” Centre of India that is providing suggestions and measures for the protection of human rights in cyberspace. It is supported by the Cyber Security Research Centre of India (CSRCI) for providing additional strength of cyber security.

Both these Centres have decided to extend their expertise for protection of children in cyberspace. In due course of time we would provide techno-legal solutions for protection and empowerment of children in cyberspace.

We hope this initiative of ours would prove useful for all concerned.

Wednesday, June 16, 2010

Why A Tragedy Is Always Needed To Wake Up Indian Parliament?

Indian Parliament is not pro active regarding making suitable laws as per the contemporary requirements. Although this lethargy is not condonable yet keeping in mind the ever happy nature of Indians this has become an acceptable practice.

However, what is not condonable is that even after continuous and incessant happening of adverse and tragic events, Indian government do nothing except making false promises or empty claims. Does it mean that Indian Parliament or Indian government always needs a tragedy to temporarily wake them up?

Indian legal system and justice delivery system has completely collapsed and is in ruins. This is despite the cozy and competitive picture shown by Indian government and Indian judiciary. The trust and respect of Indians have completely shaken for the judicial system of India that has failed to provide justice to Indians.

Times again public spirited citizens have been reminding Indian government to improve the legal and judicial systems of India but the government has failed to do so. It is only after tragic event like terrorist attacks, floods, natural calamities, episodes like Bhopal gas carnage, etc that government wakes up and decides to make proper law.

However, even such promises are mere declarations and there is no law enacted at all. This process is repeated years after years and tragedy after tragedy but Indians are all happy and contended to ask for any explanation. This may be because they have themselves elected the representatives that do not represent them at all in the legislative process of India.

I hope India would not wait for another tragedy to happen and subsequently another promise would be made that would never be fulfilled.

Friday, June 11, 2010

Security, Corruption, Myopic Vision, E-Surveillance And Indian Projects

Law enforcement and anti terrorism concerns are the sure shot formula for converting a welfare society into an orwellian state. Our Home Minister Mr. P Chidambaram is also following the same formula. He is leaving no stone unturned in this regard. Whether it is National Intelligence Grid (NATGRID) Project or Aadhar Project/UID Project, the end objective is the same, i.e. making India an endemic e-surveillance society.

India is so blinded by the concept of Orwellian State that it fails to realise what is happening to countries that have tried similar projects and have failed miserably. The only justification for sticking to these projects even if they are Unconstitutional, illegal and bound to fail can be either attributed to lack of insight or corruption. Let us discuss few failed projects of the role models on whose basis India is committing these blunders.

The Central Government is working upon a Rs 2,000-crore ambitious project titled Crime and Criminal Tracking Network and Systems (CCTNS). A similar initiative undertaken by the US Government to modernise the FBI’s crime tracking system known as the Virtual Case File failed miserably due to lack of planning and effective strategies. The same would happen in case of India.

The Cabinet Committee on Security (CCS) has put on hold the Natgrid project of India temporarily due to absence of safeguards to protect civil liberties of Indians. Natgrid is still at hold as privacy protection safeguards have not yet been established by the project coordinators.

Experience from countries like UK and US has shown that projects similar to Natgrid and Aadhar have been great failures and were ultimately scrapped off completely. These countries have learnt this hard way by spending crores of money before saying a final good bye to these projects.

For instance, recently, UK scraped National ID project as it was too expensive and an infringement of civil liberties. The Aadhar project/UID project of India would also face similar fate as it is also violative of civil liberties of Indians and is unconstitutional and illegal.

The latest to join this list is the declaration by the British Government that it will review counter-terrorism laws. This review has been triggered after it came to government’s notice that security and law enforcement forces across the country have misused the controversial powers. There is no reason why projects like Aadhar, Natgrid, CCTNS, etc would not be violated by Indian intelligence agencies and law enforcement. This is more so when they are practically governed by no law in India and have indulged in such acts in the past.

In a welcome move the United Nations Human Rights Council (UNHRC) last week presented a new set of institutional and policy practices for intelligence agencies that it said would help to improve accountability and protection of human rights in intelligence policy. It seems the entire world is moving in the direction of protection of civil liberties and India is deliberately engaging in activities that are clearly Unconstitutional and illegal.

When Mr. Nandan Nilekani joined the Aadhar Project of India, I was very happy to know that at least we have a person of character and strength who can actually accomplish the task assigned to him. I was also optimistic that he would take care of the Civil Liberties issues as well. Although he has promised civil liberties protection but he has not yet delivered any protection for the same. I hope he would not fail India and join the breed of our incompetent politicians and bureaucrats.

Mr. Nandan where is the law you promised to formulate or have been promising to formulate for months? You are more known to us by your deeds than by your words and you must leave the promise or noise culture for our politicians and bureaucrats.

Tuesday, June 1, 2010

UID Project Of India Is Still Violating Civil Liberties Of Indians

Indian projects are characterised by lots of noises with no results and outputs. If this is not enough they also bring there own share of civil liberty violations teasing and making the constitutional guarantees just legal jargon. There is no sense of empty constitutional safeguards if they cannot be enforced. India is presently in full swing to ride upon and ignore constitutional rights like right to privacy.

Aadhar project of India/UID project of India has been imposed upon citizens of India by direct as well as indirect calculations and strategies. So far there is neither a legal sanctity nor a requirement based justification for hushing up Aadhar project. In fact, there cannot be any way Aadhar can be proceeded with unless there is a constitutionally sound law supporting the same.

The UIDAI realising the gravity of the situation just declared that it would come up with the concerned law. This was intended to silent the critics of Aadhar project. The fact is that till now Aadhar project is illegal and unconstitutional and the government of India is spending upon a project that is going to fail in the near future.

There is no performance appraisal, no feasibility report, no planning and coordination and still the government is willing to impose Aadhar upon Indians. By clubbing it with other projects like national intelligence grid (Natgrid), Population Census, CCTNS, etc the government has shown the real purpose and intention of the Aadhar project.

Aadhar project is nothing but a fa├žade to hide the unconstitutional acts of Indian government and its agencies. Unfortunately, even the Delhi High Court and Supreme Court of India have also failed to take a suo-motu action against this patently unconstitutional act of Indian government.

In these circumstances, it is not the right thing to give your crucial biometric details and make your privacy more vulnerable. It is better to protest against the Aadhar project right now than subsequently feeling sorry about the same.