Garima Sharma
| 25 February, 2016
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Illustrations: Partho
Recent events in the country have raised a host of issues pertaining to the values of individualism, liberty, free expression and association. Focused particularly on the Rohith Vemula suicide and the state’s face-off with Jawaharlal Nehru University, the opposition will converge on these principles to determine the agenda of the upcoming budget session of the Parliament. Yet an issue closely related to claims over freedom that has received much less attention is the proposed expansion of Aadhaar services and the government’s bid to push a pending bill, in the Rajya Sabha, in the upcoming session to provide statutory status to the Aadhaar scheme.
Even though the government states that it will address the necessary privacy and data security concerns in the bill, the fundamental problem of increasing state profiling of individual citizens will remain unaddressed unless a separate privacy legislation is put in place. The critical question is what should be the scope of such legislation. Herein, there is an urgent need to expand the current discourse on privacy which has, for far too long, been circumscribed within the context of the data protection paradigm. This paradigm has dominated the central arguments of the critics of the Aadhaar system as well, besides the whole non-privacy related problematic assumption of subversion of identity in exchange for access to welfare schemes.
Privacy, as argued out in the context of the data protection paradigm focuses on espionage or the clandestine use of citizen information from a database by the state. There has certainly been contention over the legitimacy of such a process. And now with the government planning to expand the scope of Aadhaar services to private companies and individuals for a ‘small’ fee, the Right to Privacy has emerged as an important concern that needs renewed reassurance and legitimacy.
Even though the government has stated that it is planning to deploy third-party agencies to facilitate this service and will withhold critical citizen data by simply verifying rather than giving access to information, the plan will result in putting the service at the discretion of the government in the absence of a privacy law.
The recent move by the government stands in direct contravention of the Supreme Court order which, in August 2015, had directed the government to restrict the use of Aadhaar to five to six welfare schemes amid concerns of privacy and referred the matter to an as yet unconstituted Constitutional bench. The suspect nature of the process is revealed by the fact that there has been no concomitant proposal by the government for ensuring that the aforementioned expansion comes under the ambit of the penal provisions of the Information Technology Act, 2000, wherein, a breach of information by anyone other than the authorized personnel is subject to a prison term of up to 10 years. Neither have any alternative penalizing provisions been stipulated.
The critical issue that is at stake here is that privacy cannot be envisaged as a saleable or transferable commodity which can be violated through the simple transaction of a small fee. Yet this is precisely what the current government directive presumes.
Whether the government claims to institute a system whereby third-party access to citizen data will be limited is not the issue at hand, since the larger shift that is being signalled is the one where the privacy discourse transits from merely painting the state as a violator of privacy to one where a collaborative arrangement ensures that such violations become acceptable part of institutional norms. The assumption that underpins such an idea is that of an individualistic-liberal society that accepts and even engages in such mutual routine violations of privacy on the argument of ensuring their safety and security.
This access to safety and security is not seen as a transgression by the state even if the privacy of other citizens is breached, since an inclusive and participatory effort will ensure the legitimacy of the process. What is more – from simply macro-level violations of privacy, it will now even facilitate micro-level violations in which the private individuals and companies become collaborators of the government.
Furthermore, as is the rising trend now, in the name of collective or national interest, we have ceased to condemn the public profiling of citizens through a violation of their privacy, through instruments such the national sex offenders’ registry and arbitrary surveys in states like Jammu and Kashmir that are rife with border tensions, seen to be occurring at two levels.
First, at the level of explicit public profiling, the registry not only seeks to include all individuals charge-sheeted for all cognizable and non-cognizable sexual offences under a sex offender register, but the Minister for Women and Child Development (WCD) also suggested that even a 10 year old juvenile, “should have to report to the police where he is, and a watch should be kept on him for the rest of his life. He should report to the police every month, he should be required to say where he is working, where he is travelling.”
Second, at the level of implicit institutional profiling what is seen are the recent attempts to conduct an intrusive survey exclusively in the Kashmir region of J&K, seeking personal details such as specific details of married daughters and sectoral affiliations within a religious community, to gauge ties with militant groups.
The implementation of the pending Right to Privacy Bill, 2014, which penalizes non-consensual collection of personal information, would have prevented such exercises. And certainly, incorporating the recommendations of the Justice AP Shah Committee Report of 2012 will yield a multi-pronged approach to protecting personal information and data, and will be substitute to the weak penalizing provisions of the Information Technology Act, 2000 and the Information Technology Rules, 2011.
But in a system where institutional bias results in exclusive targeting, merely tweaking the data and personal information protection laws in a separate legislation will not ensure that privacy as a concern is addressed. A system of laws will remain inadequate if the government continues to institute a parallel regime whose moral implications facilitate the explicit and implicit violations of privacy and public and clandestine profiling of citizens.
The writer is a Research Associate at the Rajiv Gandhi Institute of Contemporary Studies.
Read more at http://www.thestatesman.com/news/law/under-big-brother-s-eye/125875.html#FlpqzL6y3llXjbou.99
