The earnestness with which the Modi government has guaranteed revenue flow for transnational automatic biometric data based identification companies from US and France is quite intriguing. Yashwant Sinha, SS Ahluwalia and Ananth Kumar, the vocal critics of Aadhaar from BJP appear to be tongue-tied on the issue
The Central Information Commission (CIC)’s interim order dated 26 July 2013 had asked Unique Identification Authority of India (UIDAI) to provide “written submissions, justifying non-disclosure of the information sought by the appellant under the provisions of Section 8 (1) (d) of the Right to Information (RTI) Act”. The UIDAI failed to do so on 10 September 2013, and instead agreed to share the copy of the contract agreements. It is manifestly insincere on the part of UIDAI to unsettle what was already settled matter as per its own letter of 10 September 2013 and the final order of CIC dated 21 October 2013.
The irony of UIDAI’s reasoning becomes quite stark when one pays heed to Clause 15.1 of the contract agreement with Accenture Services Pvt Ltd. It reads: “By virtue of this Contract, Accenture Services Pvt Ltd/ Team of Accenture Services Pvt Ltd may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable.” The purchaser has been defined and stated as the President of India through UIDAI.
The clause 15.3 reads: “The Data shall be retained by Accenture Services Pvt Ltd not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future.”
The contract agreement with L1 Identity Solutions Operating Company at clause 15.1 also reads: “By virtue of this Contract, L1 Identity Solutions Operating Company/ Team of L1 Identity Solutions Operating Company may have access to personal information of the Purchaser and/or a third party or any resident of India, any other person covered within the ambit of any legislation as may be applicable.”
The clause 15.3 of this agreement also reads: “The Data shall be retained by L1 Identity Solutions Operating Company not more than a period of 7 years as per Retention Policy of Government of India or any other policy that UIDAI may adopt in future.” The purchaser is President of India through UIDAI.
In his record of the hearing dated 3 September 2014, Sharat Sabharwal, Information Commissioner, CIC wrote: “Having considered the records and submissions by both the parties, the Registry is directed to examine the matter concerning compliance with the order dated 21 October 2013 within two weeks of the issuance of this order.”
The matter pertained to UIDAI’s contracts with two foreign companies L1 and Accenture. Notably, L1 was a Delaware, US-based Corporation when the contract was signed. L-1 has since been bought over by French corporate conglomerate, Safran Group after the Committee on Foreign Investment in the United States (CFIUS) was convinced that there are no unresolved national security concerns with respect to the transaction. L-1 Identity Solutions announced agreement to be acquired by Safran on 20 September 2010.
Sagem Morpho, a unit of Safran already had a contract with UIDAI. As to Accenture Services Pvt Ltd, it is a “Biometric Solution Provider”, a subsidiary of Dublin, Ireland based Accenture plc, a US company. Till 1 January 2001 it was known as Andersen Consulting. Both the contract agreements have been signed in the name of the Presidentof India. While L1 was a US corporation, its Indian subsidiary had a registered office at 2, Frontline Grandeur, 14, Walton Road, Bangalore. Now that it has become a French company, it is not clear whether its Bangalore address is intact or not.
Vijay Bhalla, Deputy Registrar, CIC wrote a letter on behalf of Sharat Sabharwal, Information Commissioner, CIC to Central Public Information Officer (CPIO) & Deputy Director, UIDAI wrote, “As regards the remaining information concerning Technical Bid and Commercial Bid, it was observed that your decision (conveyed to the Appellant Mathew Thomas by letter No. F-12013/096/2012/RTI-UIDAI dated 20.12.2013) to deny this information to the Appellant after following the third party information procedure laid down in Section 11 (1) of the RTI Act was in conformity with the decision of High Court of Delhi in BSNL vs Chander Sekar; LPA N. 900/2010; date of decision 23 March 2012; Commission’s Full Bench decision dated 20 May 2013 in Kuljit Singh and Anr. vs. PFCL; and Commission’s decision dated 1 September 2014 in Ajay Chadha vs Charak Palika Hospital, NDMC; date of decision 1 September 2014; Appeal No. CIC/DS/A/2013/001664-YA and CC/DS/A/2013/001684-YA. Moreover, the Appellant has not established any larger public interest warranting the disclosure of information in question. Therefore, there shall be no disclosure with regard to the information concerning Technical Bid and, Commercial Bid as it falls under the exemption category of Section 8 (1) (d) of the RTI Act.”
Under the Right to Information (RTI) Act, the Public Information Officer (PIO) cannot deny information citing commercial confidence for agreements between a public authority and private party. While giving its judgement in this regard, the CIC said “The claim of ‘commercial confidence’ in denying access to agreements between private parties and the masters of the public authorities—citizens—runs counter to the principles of the RTI. “Any agreement entered into by the government is an agreement deemed to have been entered into on behalf of the and in the interest of ‘We the people’. Hence, if any citizen wants to know the contents of such an agreement he is in the position of a principal asking his agent to disclose to him the terms of the agreement entered into by the agent on behalf of the principal. No agent can refuse to disclose any such information to his principal,” the CIC said in its order dated 27 July 2009.
The Commission was of the view that “The objectives of the RTI Act would be defeated if public authorities claim exemption based on a claim that ‘terms and condition were much more favourable to the government’, and therefore these must be kept away from the Public. In fact, public feels that quite often the contrary is the case,” the Commissionnoted. The CIC observed, “Any so called imaginary moral or reciprocal obligation cannot be permitted to subvert a solemn constitutional and legal obligation” and directed the PIO to provide copy of the agreement.
Now the issue is should UIDAI comply with the letter of CIC’s Deputy Registrar or the order of Sushma Singh, Information Commissioner at the CIC? The latter gave her final order saying, “In the view of the above, the Commission hereby directs the respondent (UIDAI) to provide a copy of the two contracts to the appellant within two weeks from the receipt of the order.” It is quite clear that the letter of Deputy Registrar, CIC is pandering to the defeated argument of UIDAI but come what may this letter cannot override the final order of Information Commissioner, CIC. The Deputy Registrar supposedly acting on behalf Sharat Sabharwal, the Information Commissioner, has failed to consider public interest and is indulgent towards UIDAI’s reluctance to share complete information in violation of CIC’s order.
The earnestness with which the Narendra Modi government has guaranteed revenue flow for transnational automatic biometric data based identification companies from US and France is quite intriguing. Likes of Yashwant Sinha, SS Ahluwalia and Ananth Kumar, the vocal critics of Aadhaar from BJP appear to have become tongue tied on the issue.
The Supreme Court’s inertia in the face of violation of its order in the Aadhaar matter is equally baffling. The most astounding is the deafening and complicit silence of the non-Congress opposition parties.
Incidentally, states of Uttar Pradesh and Bihar, which are ruled by vocal opposition parties tops the priority of the new government for Aadhaar enrolment but their leaders’ political and legal imagination is yet to come to terms with the ramifications of UIDAI’s Centralized Identities Data Repository (CIDR) and Home Ministry’s National Population Register (NPR), which is one and the same. It appears that India has become a Parliamentary democracy without opposition.
Like the previous regime, this regime too has failed to take the Parliament, States and citizens into confidence on the justification for storage of personal sensitive information of residents of India by foreign companies in US and France for eternity. It is a case of mankind’s biggest data robbery in broad day light.
It will be interesting to see if there is any legislator either from the ruling party or from the opposition party who can defend the indefensible act of transferring the personal data of India’s civilian and defence population including future legislators, judges, Prime Ministers and Presidents besides intelligence officials to these countries with impunity in parliament’s winter session which commences from 24th November.
(Gopal Krishna is member of Citizens Forum for Civil Liberties (CFCL), which is campaigning against surveillance technologies since 2010)
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