[Reader-list] News Items posted on the net on Multipurpose National Identity Cards-115

[Taha Mehmood]

http://www.hrdc.net/sahrdc/hrfeatures/HRF169.htm

 Multi-Purpose National Identity Cards

Protection or restriction of rights?

In May 2007, the Indian Government launched a pilot project on
Multi-purpose National Identity Card (MNIC) and issued cards in select
regions of the country in contemplation of later implementing a
nation-wide identification system. The Ministry of Home Affairs (MHA)
claims the identification system will strengthen national security
while facilitating efficiency in e-governance. The system will gather
the personal data of Indian citizens—including gender, age, marital
status, permanent address, names of family members—into a national
register, the maintenance of which will be outsourced to a group of
technology corporations. Each citizen will be assigned a specific
number that will be used as a reference for various socio-economic
databases including passports, driving licenses, and for accessing
health care and education. The government hopes that the MNICs, which
will require regular editing and maintenance, will ease interactions
between the State and the citizen, and keep track of illegal
immigrants. However, upon further examination of the MNIC system, it
is clear that it has flaws that could jeopardise the fundamental
rights of India’s citizens.

Impact on the right to privacy

The right to privacy of citizens will be greatly compromised if MNICs
are made compulsory. Although there is sometimes a tension between
individual privacy rights and national security, international law and
India’s domestic law expressly set a standard in tort law and through
constitutional law to protect an individual’s privacy from unlawful
invasion. Under the International Covenant on Civil and Political
Rights (ICCPR), ratified by India, an individual’s right to privacy is
protected from arbitrary or unlawful interference by the state. The
Supreme Court also held the right to privacy to be implicit under
article 21 of the Indian Constitution in Rajgopal v. State of Tamil
Nadu. Moreover, India has enacted a number of laws that provide some
protection for privacy. For example the Hindu Marriage Act, the
Copyright Act, Juvenile Justice (Care and Protection of Children) Act,
2000 and the Code of Criminal Procedure all place restrictions on the
release of personal information.

Privacy is a key concern with respect to the MNIC scheme as all of an
individual’s personal information will be stored in one database where
the possibility of corruption and exploitation of data is far greater
than when having the information disbursed. Risks that arise from this
centralisation include possible errors in the collection of
information, recording of inaccurate data, corruption of data from
anonymous sources, and unauthorised access to or disclosure of
personal information. Other countries with national identification
systems have confronted numerous problems with similar risks such as
trading and selling of information, and India, which has no generally
established data protection laws such as the U.S. Federal Privacy
Statute or the European Directive on Data Protection, is ill-equipped
to deal with such problems. The centralised nature of data collection
inherent in the MNIC proposal only heightens the risk of misuse of
personal information and therefore potentially violates privacy
rights.

In consideration of the risks involved in the creation of a
centralised database of personal information, it is imperative that
such a programme not be established without the proper mechanisms to
ensure the security of each individual’s privacy rights.
Unfortunately, India’s proposed MNIC programme lacks any provision for
judicial review at the present time. Without credible and independent
oversight, there is a risk of ‘mission creep’ for MNICs; the
government may add features and additional data to the MNIC database
bureaucratically and reflexively, without re-evaluating the effects on
privacy in each instance.
Discrimination as an outcome

Furthermore, the implementation of a national identification system
represents a vast increase in police power—a troubling prospect given
the state of Indian policing and the excessive control of the
Executive in its functioning. Indian police and other security forces
have a history of abusing their power, from torturing those in their
custody and setting up fake ‘encounter deaths’ to more mundane abuses
like petty corruption and harassment. Such police abuses typically go
unpunished. Thus it does not take a large leap of imagination to
expect that some in the security services would abuse the MNIC
programme—whether to discriminate against minorities, carry out
arbitrary arrests and detentions, facilitate the targetting of
opposition groups by political parties in power, and perhaps even
blackmail people. According to Simon Davies of Privacy International,
national ID cards in virtually every country where they have been
introduced have facilitated discrimination. India need only consider
the history of national identity cards in other countries and the
history of police misconduct within its own borders to realise the
potential threats that the MNIC scheme poses. Any perceived advantages
of the MNIC programme must therefore be weighed against these very
real costs.

As the former Privacy Commissioner for the Australian state of
Victoria Paul Chadwick argued, the responsibility of proving whether
one is acting lawfully or not should be on the state, not on the
citizen. He gives examples of precautions taken to prevent abuse of
police power in countries with centralised personal identification
databases including parliamentary scrutiny, judicial review, statutory
regulators, and protection for whistleblowers, but he argues that even
these mechanisms are not enough to completely keep bureaucracies
honest.

In the United States, there is at present a debate concerning the
implementation of the REAL ID Act, which is meant to regulate all U.S.
state-issued identification cards at a national level. As Professor
Mark Rotenberg of Georgetown Law Center explained in a report to the
Electronic Privacy Information Center, new stronger precautions are
needed because of evidence of abuse of police power through security
measures such as the REAL ID Act and the Patriot Act. Rotenberg
suggests that an effective way to monitor how government uses the
information it collects is to have entities independent of the
government conduct oversight, and he adds that the potential abuse of
police power will remain until there is effective judicial oversight
of the use of the collected information.
Issue of access

Although a widely-implemented MNIC programme risks violating
individual privacy rights and facilitating security forces’ violation
of other fundamental rights, an MNIC programme that leaves some people
outside its reach carries its own risks of denying human rights. The
MHA seeks to make the possession of the card a prerequisite for
citizens who wish to avail of certain governmental schemes, such as
passports, driving licenses, health care, school enrolment and the
like, in order to encourage all citizens to obtain one. Thus, no card,
no services.

Switching to an MNIC system for the delivery of social services could
result in the denial of fundamental rights of equality to Indians left
without a card. Under Articles 13 and 14 of the Indian Constitution,
the fundamental rights of citizens must be protected by the state, and
the government is required to follow a policy consistent with the
goals of equal opportunity and justice for all. Millions of Indians
are at risk of never receiving MNICs and therefore may be excluded
from accessing certain services, denied the freedom to travel, or
prohibited from certain employment opportunities. The likelihood that
MNICs will not reach all of India’s one billion plus citizens is high
considering the government’s historic inability to account for
everyone within the national borders. This is illustrated by the
shortcomings of India’s electoral photo identity card (EPIC).
According to records obtained from the Election Commission by the
Hindustan Times, over 186 million Indian citizens eligible to vote do
not posses EPICs even though the programme was created over a decade
ago.

Proponents of the MNIC programme argue that people without MNICs could
use alternative means of identification in order to obtain benefits
until they are incorporated into the MNIC system. But those without
MNICs—most likely the poor and members of tribal groups—would almost
certainly also lack other sufficient forms of identification for the
simple reason that they have never needed any. There is also the
related issue concerning directive principles of the state policy in
Part IV of the Indian Constitution. Among other things, the directive
principles provide that the government should make laws with a view to
ensuring for each citizen equal rights to an adequate livelihood, and
social and economic equality and justice. Denying minority tribal
groups or the rural poor certain government services and entitlements
based on the lack of an MNIC is contrary to the guidelines set out by
the directive principles. The net result of the MNIC programme may be
a denial of access to government services in such a disproportionate
and discriminatory manner that it would amount to violation of the
fundamental right to equality.
Conclusion

The concerns mentioned above do not necessarily mean that India’s
planned MNIC programme must be discarded, but they signal a need for
oversight to protect the privacy and equality rights of India’s
citizens from the inherent risks of a national database for personal
information. Implementing and maintaining the MNIC system will
generate high costs along with risks to safety, security, privacy,
freedom, and liberty. MNICs should not become compulsory until there
is an established judicial overview to ensure that the privacy rights
of India’s citizens are not unlawfully violated. It is important that
India confront and manage these risks and consider all alternatives
before implementing the MNIC programme nationwide.

 Human Rights Features