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News Reports |
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Multi-Purpose National Identity Cards
Protection or
restriction of rights? |
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Human Rights Features July 13, 2007 |
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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 jeopardize the
fundamental rights of India's citizens. |
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Impact on the right to privacy
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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 Tamilnadu. 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. |
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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 centralization include
possible errors in the collection of information, recording of
inaccurate data, corruption of data from anonymous sources, and
unauthorized 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 centralized
nature of data collection inherent in the MNIC proposal only heightens
the risk of misuse of personal information and therefore potentially
violates privacy rights. |
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In consideration of the risks
involved in the creation of a centralized database of personal
information, it is imperative that such a program not be established
without the proper mechanisms to ensure the security of each
individual's privacy rights. Unfortunately, India's proposed MNIC
program 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. |
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Discrimination as an
outcome
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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 program-whether to discriminate against minorities, carry out
arbitrary arrests and detentions, facilitate the targeting 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 realize the potential
threats that the MNIC scheme poses. Any perceived advantages of the MNIC
program must therefore be weighed against these very real costs. |
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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. |
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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. |
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Issue
of access
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Although a widely-implemented MNIC program risks violating individual privacy rights and
facilitating security forces' violation of other fundamental rights, an MNIC program 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. |
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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 program was created over a
decade ago. |
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Proponents of the MNIC program
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 program 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. |
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Conclusion
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The concerns mentioned
above do not necessarily mean that India's planned MNIC program 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 program nationwide. |
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