11270 - Supreme Test - Indian Express

http://indianexpress.com/article/opinion/columns/supreme-test-4642608/

Supreme Test

Aadhaar-related cases could tell us whether our jurisprudence is fit for an age of technology

Written by Pratap Bhanu Mehta | Published:May 6, 2017 12:05 am

It will also be a test case for whether the checks and balances of our constitutional scheme stand, or whether they will get blown away at the slightest whiff of executive power.

The challenge to Section 139 AA of the Income Tax Act, otherwise known as the Aadhaar/Pan challenge, is an immensely consequential case for the credibility of the Supreme Court. This is not the occasion to rehearse the specific arguments at stake. Some of the concerns have been expressed in a previous column. The legal scholar Gautam Bhatia’s summaries are a wonderfully accessible introduction to the arguments presented in court. But it is important to remember why this case will have huge ramifications for the institutional credibility of the Supreme Court. It will also be a test case for whether the checks and balances of our constitutional scheme stand, or whether they will get blown away at the slightest whiff of executive power.

First, the court has created a credibility crisis for itself. Its mendacious evasions on the issue of privacy rights emanating from Aadhaar have eroded its credibility. In a context where the Supreme Court has found time to take over entire private bodies like the BCCI and run them, the idea that it did not have time to conduct hearings since October 2015 on an issue of such vital importance is frankly scandalous. That delay tied the petitioners’ hand even in the case at hand, where they could not invoke the privacy-based argument. Some deft lawyerly ingenuity has injected those arguments in this case anyway. But it is an Orwellian conception of constitutional justice when petitioners cannot make arguments because ostensibly, those arguments are being heard, except there are no hearings.

Second, the state has taken an aggressively anti-rights stand, one that goes way beyond what even any moderate case for well-defined uses of Aadhaar would warrant. The idea that there is no right to privacy, or that we have no absolute right over our bodies is, in the form in which the state deploys them, chilling. We can cut some rhetorical slack for the fact that this could be a way of countering some extreme arguments that would make even reasonable administrative measures impossible. But even plausible limitations to a right, or a claim that a particular administrative measure does not actually violate a right, depend upon specifying the nature and content of the right in the first place. The state is blithely acting as if no rights were at stake. By refusing to clarify the nature and scope of these rights, the court is abetting the state’s presumptuousness. This anti-rights aggression by the state, its short shrift to protections, is actually weakening trust in the state.

Third, the delay in sorting out matters relating to Aadhaar has given the executive carte blanche to go ahead and change the facts on the ground to the point where we might be just handed a fait accompli. Governance by fait accompli is neither just, nor legitimate. The Supreme Court’s own authority and orders are being subverted in the notifications for the use of Aadhaar; the amendment to the IT Act is a backdoor means of getting what the Aadhaar Act does not seem to provide. The Supreme Court needs to decide whether its word means anything at all.

The substantive merits of Aadhaar can be debated. But the most disturbing thing about the manner in which Aadhaar has been enacted is the disregard for all institutional proprieties. Aadhaar seems to be making all institutions niraadhaar. For a long time, it operated without governing legislation. Then, the legislation came in the form of a money bill that has, in effect, nullified every principle of parliamentary accountability that we know of. It has also set a dangerous precedent which is now being deployed with impunity in legislation. Historically, the courts have created legitimacy for themselves, not by meddling in policy and governance or populist grandstanding, but by making sure that the institutional forms of a democracy are respected. The courts’ increasingly monumental silence on these issues is mystifying.

Fourth, the court has come under a lot of criticism that the sophistication of its “policy jurisprudence” falls short of the requirements of a modern economy and regulatory state. Some of this criticism may be exaggerated. But there is reason to think that the court’s understanding of complex economic and regulatory issues needs to evolve. But we are now entering a world of unprecedented technological advances. And here, the gap between the needs of our time and our laws may be even wider. Many technological changes will enable new economic possibilities. These will also have a far-reaching impact on the nature of surveillance, the threats we face, our deepest sense of self, and our moral vocabulary. They are creating new forms of power relations and vulnerability that will severely test traditional institutions.

The Aadhaar-related cases are the most significant test of whether our jurisprudence is fit for an age of technology, whether it has the care, sophistication and nuance to measure up to the challenges of our era. These cases give the Supreme Court an opportunity to establish itself as an intellectual leader in this area. It can choose to pick up the mantle or become an exemplar of intellectual abdication.

Finally, one of the court’s functions is the articulation of a constitutional morality that cuts through moral cant. In the absence of that constitutional leadership, the vacuum is filled by all kinds of specious arguments. Two arguments are particularly troubling. One is the implicit contrast being set up in the Aadhaar debate between the rights of the poor and the rights of the rich: Aadhaar for poor service delivery recipients, not for the privileged. The rich and poor are differently situated. But the core issues are similar: Aadhaar was supposed to be an enabler, not a means of denying rights. What is the redress where the poor are being denied rights? The accountability of the authentication process affects everybody. This case should be about common rights as citizens, not about different classes of people. The second is the culturalist cant going around: “Privacy is not an Indian idea”, or that foreign and comparative law is not applicable for this reason.

Of course there are cultural variations. But the idea that challenges emanating from the powers of a modern state, protecting people against the denial of rights, surveillance, data sharing, invasions of the body, can be settled by culturalist arguments is plain nonsense. The Supreme Court needs to call this bluff before it becomes legal common sense.

Not since ADM Jabalapur has the Supreme Court faced such a crisis of credibility. The urgency and clarity of the court in the Aadhaar cases will decide whether it can overcome that crisis.

The writer is president, CPR Delhi and contributing editor, ‘The Indian Express’

11235 - Aadhaar: Are a billion identities at risk on India's biometric database - BBC

Aadhaar: Are a billion identities at risk on India's biometric database

Soutik Biswas

India correspondent

4 May 2017From the section India

More than a billion residents of India have a unique identity number: MANSI THAPLIYAL Image caption

"My fingerprints and iris are mine and my own. The state cannot take away my body," a lawyer told India's Supreme Court last week.

Shyam Divan was arguing a crucial petition challenging a new law that makes it compulsory for people to submit a controversial biometric-based personal identification number while filing income tax returns.

Defending this law, the government's top law officer told the court on Tuesday that an individual's "right to body is not an absolute right".

"You can have right over your body but the state can restrict trading in body organs, so the state can exercise control over the body," Attorney General Mukul Rohatgi said.

At the heart of the latest challenge are rising concerns over the security of this mega biometric database and privacy of the number holders. (The government says it needs to link the identity number to income tax returns to improve compliance and prevent fraud.)

Read more:

• Bridging India’s identity divide with a number
• Who Am I?
• Tunni Rai: A life without identity
• Will India's identity number really be a game changer?
• Why India's identity scheme is groundbreaking
• Is India's identity number scheme unravelling?

India's biometric database is the world's largest. Over the past eight years, the government has collected fingerprints and iris scans from more than a billion residents - or nearly 90% of the population - and stored them in a high security data centre. In return, each person has been provided with a randomly generated, unique 12-digit identity number.

For a country of 1.2 billion people with only 65 million passport-holders and 200 million with driving licenses, the portable identity number is a boon to the millions who have long suffered for a lack of one.

Indians will need the identity number to receive benefits from more than 500 welfare schemes

States have been using the number, also called Aadhaar (Foundation), to transfer government pensions, scholarships, wages for a landmark rural jobs-for-work scheme and benefits for cooking fuel to targeted recipients, and distribute cheap food to the poor.

Over the years, the number has taken a life of its own and begun exerting, what many say, is an overweening and stifling control over people's lives. For many like political scientist Pratap Bhanu Mehta, Aadhaar has transmuted from a "tool of citizen empowerment to a tool of state surveillance and citizen vulnerability".

People will soon need the number to receive benefits from more than 500 of India's 1,200-odd welfare schemes. Even banks and private firms have begun using it to authenticate consumers: a new telecom company snapped up 100 million subscribers in quick time recently by verifying the customer's identity through the number.

'Forcibly linked'

People are using the number to even get their marriages registered. The number, says Nikhil Pahwa, editor and publisher of Indian news site MediaNama, is "being forcibly linked to mobile numbers, bank accounts, tax filings, scholarships, pensions, rations, school admissions, health records and much much more, which thus puts more personal information at risk".

Some of the fears are not without basis.

The government has assured that the biometric data is "safe and secure in encrypted form", and anybody found guilty of leaking data can be jailed and fined.

But there have already been a number of leaks of details of students, pensioners and recipients of welfare benefits involving a dozen government websites. Even former Indian cricket captain MS Dhoni's personal information was mistakenly tweeted by an overzealous enrolment service provider.

The fingerprints and iris scans are stored in high security data centres

Now a disturbing report by The Centre for Internet and Society claims that details of around 130-135 million Aadhaar numbers, and around 100 million bank numbers of pensioners and rural jobs-for-work beneficiaries have been leaked online by four key government schemes.

More than 230 million people nationwide are accessing welfare benefits using their numbers, and potentially, according to the report, "we could be looking at a data leak closer to that number". And linking the number to different databases - as the government is doing - is increasing the risk of data theft and surveillance.

The chief law officer believes that the outrage over the leaks is "much ado about nothing".

"Biometrics were not leaked, only Aadhaar numbers were leaked. It is nothing substantial. The idea is biometrics should not be leaked," Mukul Rohtagi told the Supreme Court on Tuesday.

The government itself has admitted that it has blacklisted or suspended some 34,000 service providers for helping create "fake" identification numbers or not following proper processes. Two years ago, a man was arrested for getting an identification number for his pet dog. The government itself has deactivated 8.5 million numbers for incorrect data, dodgy biometrics and duplication. Last month, crop loss compensation for more than 40,000 farmers was delayed because their Aadhaar numbers were "entered incorrectly by banks".

'Mass surveillance'

There are also concerns that the number can be used for profiling. Recently, authorities asked participants at a function in a restive university campus in southern India to provide their Aadhaar identity numbers. "This is not only a matter of privacy. The all pervasiveness of the Aadhaar number is a threat to freedom of expression, which is a constitutional right," Srinivas Kodali, who investigated the latest report on data leaks, told me.

Critics say the government is steaming ahead with making the number compulsory for a range of services, violating a Supreme Court order which said enrolment would be voluntary. "The main danger of the number," says economist Jean Dreze, "is that it opens the door to mass surveillance."

Details of millions of Aadhaar number holders have been leaked

Nandan Nilekani, the technology tycoon who set up the programme popularly known by its acronym UIDAI, believes concerns about the safety of the biometric database are exaggerated.

He says the identity number has cut wastage, removed fakes, curbed corruption and made substantial savings for the government. He insists that the programme is completely encrypted and secure. "It's like you are creating a rule-based society," he told Financial Times recently, "it's the transition that is going on right now."

Abused

More than 60 countries around the world take biometric data from its people, says Mr Nilekani. But then there are nagging concerns worldwide about these databases being abused by hackers and state intelligence.

In 2016, personal details of some 50 million people in Turkey were reportedly leaked. (Turkey's population is estimated at 78 million.) In 2015, hackers stole more than five million fingerprints after breaching US government networks. In 2011, French experts discovered a hack involving the theft of millions of people's data in Israel.

Pratap Bhanu Mehta has written that the lack of a "clear transparent consent architecture, no transparent information architecture, no privacy architecture worth the name [India doesn't have a privacy law], and increasingly, no assurance about what exactly you do if the state decides to mess with your identity" could easily make Aadhaar a "tool of state suppression".

So a lot of lingering doubts remain. How pervasive should an identity number be? What about the individual freedom of citizens? How do you ensure the world's biggest biometric database is secure in a country with no privacy laws and a deficient criminal justice system?

In many ways, the debate about Aadhaar is also a debate about the future of India. As lawyer Shyam Divan argued forcefully in the top court, "people are reduced to vassals" when the state controls your body to this extent.

10833 - Big Brother is winning - Indian Express

Big Brother is winning

The enhancement of state powers without control or transparency is not being done against our wishes

Written by Pratap Bhanu Mehta | Published:February 8, 2017 2:20 am

The writer points out that the more serious issue involves the conversion of Aadhaar from a tool of citizen empowerment to a tool of state surveillance and citizen vulnerability. (Photo for representational purpose)

The clamour for security, accountability and transparency is leading to unfettered increase in the power of states. We are enacting law after law, introducing technology after technology, to render citizens transparent to the state. But at the same time, we are weakening protections and consenting to technologies in a way that makes the state less transparent to us. Totalitarian states often do this against the wishes of their citizens; in our democracy, our consent is being mobilised to put an imprimatur over more control and arbitrariness. And in a fit of distraction, we have come to believe that giving the state more powers will conjure up all the goodies we need. All it will produce is a disciplinarian society more under the state’s control.

Just witness the latest exhibit. The Finance Bill amended Section 132 of the Income Tax Act to say that a tax authority will not have to disclose to any person or any authority or the Appellate Tribunal why it has “reason to believe” that there is a basis for conducting a search and seizure operation. Admittedly, the technical issues involved in this amendment are complex. There seems to be a desire to protect the anonymity of tips, for example. In principle, more internal checks are being created by making the issue of notices more centralised, presumably to reduce randomness. But after all the technical arguments are laid out, it is still difficult to blunt the chilling effect of the idea that the income tax authorities do not have to disclose any reason to anyone.

There is a considerable case law on search and seizure in an income tax raid. The Finance Bill euphemistically argues that the purpose of these amendments is to clear the ambiguity arising out of judicial interpretations. Clearing ambiguity means “the judiciary should not be allowed to hold the state accountable.” There is irony in this, since the judiciary does seem to grant considerable leeway to the executive in this matter. Distinguishing between a malafide and bonafide raid is not easy in any case. But think of what this amendment signals. Contrary to all promises, the powers of tax authorities are being made even more arbitrary. It also confirms what many suspected, that the pressure on government to now use income tax to scrape out non-existent windfall gains from demonetisation is immense. But there is little ambiguity that in the name of holding citizens accountable, we are opening the door to legalised authoritarianism.

But the more serious issue involves the conversion of Aadhaar from a tool of citizen empowerment to a tool of state surveillance and citizen vulnerability. In the original debate over Aadhaar, there were broadly three positions: Aadhaar sceptics who saw it largely as a tool of surveillance and commercial profit; Aadhaar zealots who saw this as the key to energising the economy, and were willing to cut corners on privacy and process; and finally, Aadhaar moderates, who thought that with appropriate and deep safeguards, it could provide portable identities and deliver some government benefits to citizens.

This column was in the moderate camp. But it has to be admitted that the moderate position is looking increasingly untenable. Instead of a means, Aadhaar is becoming an end; instead of strengthening safeguards, we are weakening them and the focus of commercial applications will far outpace the need for citizen delivery. In short, the warnings of Aadhaar sceptics like Usha Ramanathan are increasingly coming to pass. We should have taken them more seriously.

There are technical issues around the security of data bases, the problems of misidentification and so forth that experts can discuss. But even assuming all of them to be fixable problems, the four central issues relevant to preventing Aadhaar from becoming a tool of state suppression are simply not being addressed. There is still no clear transparent consent architecture, no transparent information architecture (which agency or vendor shares what information with whom), no privacy architecture worth the name, and increasingly, no assurance about what exactly you could do if the state decides to mess with your identity.

The project of force-feeding digitisation, now with the help of commercial players whom we can hold even less accountable, and giving short shrift to all concerns of dignity, autonomy and privacy, should cause worry. The moderate position was premised on an institutional hope that now looks like a fool’s errand. It was premised on enacting laws that would be commensurate with the scope of the challenge this technology poses. But governments, of all political parties, have more or less abdicated that role.

The fact that there is no political contestation on issues of privacy and liberty is frightening. But the courts have also managed to avoid all privacy-related issues by postponing them beyond any reasonable cause. Increasingly, the court’s track record is sending shivers down our spine. Courts that are offended by a few lawyers being lampooned are unlikely to be great defenders of liberty.

By allowing the short-circuiting of processes, by giving so much leeway to executive power, they have decreased our confidence in safeguards. In fact, the passing of issues pertaining to Aadhaar as a money bill has become a perfect metaphor for what our system has become. We have made rights instrumental to outcomes. The idea that we can institute sophisticated checks and balances seems a pipe dream. No one wants to watch the watchers.

This moment in the enhancement of state powers without control or transparency is not being done against our wishes: It is being done by mobilising them. The allure of convenience, the clamour for a punitive accountability, an impatience with processes and checks and balances are empowering the state beyond measure. We have sold ourselves a collective diagnosis. The reason there is no accountability is because the state does not have enough power. This is a dangerous delusion. Lots of small things need to be fixed with safeguards if you want an accountable system, not more centralisation and unaccountable power.

You just have to look at those whose lives have been wrecked by wrongful prosecution to be reminded of what the state can do to innocent people under the guise of law. “The innocent have nothing to fear”, are not words of reassurance; they are the patronising ruse of an authoritarian state. My having nothing to fear cannot be an excuse for exempting state action from scrutiny. Our abdicating to the state’s arbitrariness is, to borrow Orwell’s words, “an act of self-hypnosis, a deliberate drowning of consciousness by means of rhythmic noise.”

The writer is president, CPR Delhi and contributing editor, ‘The Indian Express’

9951 - Aadhaar Act as Money Bill: Why the Lok Sabha isn’t Immune from Judicial Review - The Wire

Aadhaar Act as Money Bill: Why the Lok Sabha isn’t Immune from Judicial Review

BY VANYA RAKESH AND SUMANDRO CHATTAPADHYAY ON 09/05/2016 • 

The Supreme Court can not only review the decision by the Lok Sabha speaker, but should also ask the government to draft the Aadhaar Bill again, with greater parliamentary and public deliberations.

File photo of parliament. Credit: PTI

The Aadhaar Act 2016, passed in the Lok Sabha on March 16, 2016, faced opposition ever since it was tabled in parliament. In particular, the move to introduce it as a money bill has been vehemently challenged on grounds of this being an attempt to bypass the Rajya Sabha completely. A writ petition has been filed by former Union minister Jairam Ramesh on April 6 challenging the constitutionality and legality of the treatment of this Act as a money bill. The Supreme Court heard the matter on April 25 and invited the Union government to present its view.

It is our view that the Supreme Court can not only review the Lok Sabha speaker’s decision, but should also ask the government to draft the Aadhaar Bill again, this time with greater parliamentary and public deliberation.

The money bill question

M.R. Madhavan has argued that the Aadhaar Act contains matters other than “only” those incidental to expenditure from the consolidated fund, as it establishes a biometrics-based unique identification number for beneficiaries of government services and benefits, but also allows the number to be used for other purposes beyond service delivery. While Pratap Bhanu Mehta calls this a subversion of “the spirit of the constitution”, P.D.T. Achary, former secretary general of the Lok Sabha, expressed concern about the attempts to pass off financial bills like Aadhaar as money bills as a means to circumvent and erode the supervisory role of the Rajya Sabha. Arvind Datar has further emphasised that when the primary purpose of a bill is not governed by Article 110(1), then certifying it as a money bill is an unconstitutional act.

Article 110(1) of the Constitution identifies a bill as a money bill if it contains “only” provisions dealing with the following matters, or those incidental to them:

1. imposition and regulation of any tax,
2. financial obligations undertaken by Indian Government,
3. payment into or withdrawal from the Consolidated Fund of India (CFI) or Contingent Fund of India,
4. appropriation of money and expenditure charged on the CFI or receipt, and
5. custody, issue or audit of money into CFI or public account of India.

However, the link of the Act with the Consolidated Fund of India is rather tenuous, since it depends on the Union or state governments declaring a certain subsidy to be available upon verification of the Aadhaar number. The objectives and validity of the Act would not actually change if the Aadhaar number no longer was directly connected to the delivery of services. The use of the word “if” in section 7 explicitly leaves scope for a situation where the government does not declare an Aadhaar verification as necessary for accessing a subsidy. In such a scenario, the Act will still be valid but without any formal connection with any charges on the Consolidated Fund of India.

A case of procedural irregularity?

The constitution of India borrows the idea of providing the speaker with the authority to certify a bill as money bill from British law, but operationalises it differently. In the UK, though the speaker’s certificate on a money bill is conclusive for all purposes under section 3 of the Parliament Act 1911, the speaker is required to consult two senior members, usually one from either side of the house, appointed by the committee from amongst those senior MPs who chair general committees. In India, the speaker makes the decision on her own.

Although article 110 (3) of the Indian constitution states that the decision of the speaker of the Lok Sabha shall be final in case a question arises regarding whether a bill is a money bill or not, this does not restrict the Supreme Court from entertaining and hearing a petition contesting the speaker’s decision. As the Aadhaar Act was introduced in the Lok Sabha as a money bill even though it does not meet the necessary criteria for such a classification, this treatment of the bill may be considered as an instance of procedural irregularity.

There is ample jurisprudence on what happens when the Supreme Court’s power of judicial review comes up against Article 122 – which states that the validity of any proceeding in the parliament can (only) be called into question on the grounds of procedural irregularities. In the crucial judgment of Raja Ram Pal vs Hon’ble Speaker, Lok Sabha and Others (2007), the court evaluated the scope of judicial review and observed that although parliament is supreme, unlike Britain, proceedings which are found to suffer from substantive illegality or unconstitutionality, cannot be held protected from judicial scrutiny by article 122, as opposed to mere irregularity. Deciding upon the scope for judicial intervention in respect of exercise of power by the speaker, in Kihoto Hollohan vs Zachillhu & Ors. (1992), the Supreme Court held that though the speaker of the house holds a pivotal position in a parliamentary democracy, the decision of the speaker (while adjudicating on disputed disqualification) is subject to judicial review that may look into the correctness of the decision.

Several past decisions of the Supreme Court discuss how the tests of legality and constitutionality help decide whether parliamentary proceedings are immune from judicial review or not. In Ramdas Athawale vs Union of India (2010), the case of Keshav Singh vs Speaker, Legislative Assembly (1964) was referred to, in which the judges had unequivocally upheld the judiciary’s power to scrutinise the actions of the speaker and the houses. It was observed that if the parliamentary procedure is illegal and unconstitutional, it would be open to scrutiny in a court of law and could be a ground for interference by courts under Article 32, though the immunity from judicial interference under this article is confined to matters of irregularity of procedure. These observations were reiterated in Mohd. Saeed Siddiqui vs State of Uttar Pradesh (2014) and Yogendra Kumar Jaiswal vs State of Bihar (2016).

Thus, the decision of the Lok Sabha speaker to pass and certify a bill as a money bill is definitely not immune from judicial review. Additionally, the Supreme Court has the power to issue directions, orders or writs for enforcement of rights under Article 32 of the constitution, therefore, allowing the judiciary to decide upon the manner of introducing the Aadhaar Act in parliament.

National implications demand public deliberation

As the provisions of the Aadhaar Act have far reaching implications for the fundamental and constitutional rights of Indian citizens, the Supreme Court should look into the matter of its identification and treatment as a money bill and whether such decisions lead to the thwarting of legislative and procedural justice.

The Supreme Court may also take this opportunity to reflect on the very decision making process for classification of bills in general. As Smarika Kumar argues, experience with the Aadhaar Act reveals a structural concern regarding this classification process, which may have substantial implications in terms of undermining public and parliamentary deliberative processes. This “trend,” as Arvind Datar notes, of limiting legislative discussions and decisions of national importance within the space of the Lok Sabha must be swiftly curtailed.

Apart from deciding upon the legality of the nature of the bill, it is vital that the apex court ask the government to categorically respond to the concerns red-flagged by the Standing Committee on Finance, which had taken great exception to the continued collection of data and issuance of Aadhaar numbers in its report, and to the recommendations passed in the Rajya Sabha recently. Further, the repeated violation of the Supreme Court’s interim orders – that the Aadhaar number cannot be made mandatory for availing benefits and services – in contexts ranging from marriages to the guaranteed work programme should also be addressed and responses sought from the Union government.

Evidently, the substantial implications of the Aadhaar Act for national security and fundamental rights of citizens, primarily privacy and data security, make it imperative to conduct a duly balanced public deliberation process, both within and outside the houses of parliament, before enacting such a legislation.

Vanya Rakesh and Sumandro Chattapadhyay work with the Centre for Internet and Society, Bangalore.

9672 - Privacy After Aadhaar - The Quint

Privacy After Aadhaar

While the Aadhaar itself has great potential, the fact that it was treated as a money bill should be a matter of great concern, writes Pratap Bhanu Mehta in The Indian Express. The Aadhaar bill has far-reaching implications and if it counts as a money bill, then nearly any legislation can be treated as a money bill as well, he writes. Also, it does not adequately address the issues of privacy in the age of technology.

On that score, the bill is an exercise in bad faith. The first reason is architectural. The national security exceptions in the bill are too broad. It negates all protections the bill seemingly provides. But, more importantly, let us say you do want a national security exception. Should the determination of this be left entirely to the bureaucracy and executive when they themselves will not be under any system of accountability? Admittedly, even our current safeguards are very weak. But as the risks of surveillance grow, we need to strengthen them rather than rely on specious arguments about the past.

9666 - Privacy after Aadhaar - Indian Express

Privacy after Aadhaar

If this bill with far-reaching implications for rights, accountability and the powers of the state is a money bill, then practically any legislation can be converted into a money bill.

Written by Pratap Bhanu Mehta | Updated: March 26, 2016 2:25 pm

Aadhaar is a potentially useful instrument for delivering benefits and reducing fraud. But even its staunchest defenders should worry about the crude instrumentalism that has surrounded the passage of the Aadhaar bill. This instrumentalism has run roughshod over two values: Constitutional propriety and privacy. There should be great disquiet at the fact that the bill was treated as a money bill. This was a subversion of the spirit of Article 110, the provision that deals with money bills. If this bill with far-reaching implications for rights, accountability and the powers of the state is a money bill, then practically any legislation can be converted into a money bill.

Article 110(3) does say that the speaker is the final authority on what constitutes a money bill. But it was always assumed that the speaker would make this determination in light of the definition of money bills laid down in the article. To arbitrarily declare something a money bill is to subvert the spirit of the Constitution. This bill will set a horrendous precedent for ways of bypassing the Rajya Sabha. The solution to legislative logjam cannot be subversion of the representative scheme bequeathed to us. Many politicians are privately salivating at the prospect of rendering the Rajya Sabha powerless. The Aadhaar bill has been born in this constitutional perfidy.

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The second value is privacy, a key concern. In an age of technology, this is a tricky issue, with complicated risks and tradeoffs. It is precisely for this reason that this should not have been a money bill. A short oped is not a place to settle institutional issues but the responses of the defenders of Aadhaar to the privacy question have not been reassuring. They argue that this bill is an improvement on the UPA’s bill. That is true. But it is hardly reassuring to be told that a hole through which you might fall has gotten marginally smaller if there is a high probability that you can still fall through it. The question is whether the bill demonstrates a good-faith attempt to address as many privacy concerns as it reasonably can.

On that score, the bill is an exercise in bad faith. The first reason is architectural. The national security exceptions in the bill are too broad. It negates all protections the bill seemingly provides. But, more importantly, let us say you do want a national security exception. Should the determination of this be left entirely to the bureaucracy and executive when they themselves will not be under any system of accountability? Admittedly, even our current safeguards are very weak. But as the risks of surveillance grow, we need to strengthen them rather than rely on specious arguments about the past. But as PRS Legislative Research pointed out, the term “national security” is much wider than public emergency or public safety, the traditional grounds on which the state got tapping authority. But the most important point is that there is no effective independent, credible mechanism for holding accountable those who will be making determinations on this exception. Essentially, a small group of bureaucrats can render your privacy irrelevant. Privacy may not be absolute, as the finance minister says, but that is no reason to make bureaucratic power nearly absolute, as this bill does.

Second, the real issue with Aadhaar is not only going to be the privacy of the information with the UIDAI itself. If lots of different agencies link their information to Aadhaar numbers, what will be the protocols governing the sharing of that information? What will be the norms governing data mining? Will we have agency-specific protocols on what information can be shared with whom and under what conditions? Aadhaar will give the ability to link different databases biometrically. As Partha Mukhopadhyay had argued, “To protect privacy, each such database will need additional locks. Linking databases should need consent from multiple key-holders subject to legislative oversight and judicial redress.” This is, in principle, a problem that could be addressed. But it is why Aadhaar required embedding in the context of a comprehensive privacy legislation, not a perfunctory exercise as is carried out in this bill. This bill has no meaningful protection against abuse.

But the broader ideological mystification around privacy should be resisted. This government, like the previous one, is consistently mendacious on the right to privacy, outright denying it on some occasions. Then there is the canard of the “private sector”. Since we freely give in to Google and Facebook, what is wrong in giving in to the state? There are two responses. This argument may actually be a case for regulating big private companies more, rather than lowering protection standards in the state. But, most importantly, it elides an important distinction: The state can use coercive power in a way in which private entities cannot. Private entities are not inconsequential in the exercise of power, but that power operates differently. The reason we worry about the state is that it can coerce you, imprison you, deprive you of your rights. So the standards of accountability have to be correspondingly adjusted.

States have also used a generalised state of insecurity to make surveillance normal. Our fears trump our quest for autonomy. This is a Faustian bargain we have struck with the state. But the political sustainability of this bargain depends upon trust in the state. A good-faith attempt to give as many safeguards as possible should not be seen as coming in the way of the state. It rather enhances its ability to exercise power when it truly matters. But a state that rides roughshod over privacy from the start will not be a state that will elicit trust. What is at stake is not just a right to privacy but the building of a trustworthy state.

Finally, we are in an age where we live in what the Columbia legal theorist, Bernard Harcourt, has in his book, Exposed: Desire and Disobedience in the Digital Age, called the “expository society”. We not only crave exposure but the better satisfaction of our desires requires us to give up privacy. But even the craving for the satisfaction of our desires should not make us immune from worrying about how power is exercised over us. In its crude instrumentalism about constitutional propriety and privacy, the Aadhaar bill is a demonstration of just how easily state power can become arbitrary. Even though the bill has been passed, it is important to keep up the pressure so that we can frame better regulations and seek judicial protection.

The writer is president, Centre for Policy Research, Delhi, and contributing editor, ‘The Indian Express’

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5849 - Maximum mistrust - Indian Express

Maximum mistrust - Indian Express

In India, the application of surveillance seems to have more to do with discipline than with mitigating risk. 

Written by Pratap Bhanu Mehta | Posted: October 10, 2014 1:06 am

Our society is gripped by two overlapping tendencies. On the one hand, there is a pervasive culture of mistrust. On the other hand, this mistrust is ideologically deployed for all kinds of surveillance, from biometric attendance to GPS tracking of politicians. The clamour for accountability is manifesting itself in the form of a desire for greater discipline, but the line between reasonable discipline and a disciplinary society that colonises our self is a very thin one. Are we sleepwalking into forms of discipline that will diminish rather than elevate us?

The question of surveillance is a tricky one. But, broadly, a distinction must be made between forms of surveillance that are designed to protect us from genuine risks and forms that are mainly disciplinary in their effects. This is not a sharp distinction but it is heuristically useful. Modern societies, like all societies, face complex risks. But the self-image of modern society is that these risks can be mitigated by the application of surveillance and technology. No modern government can be seen not to be doing things to mitigate these risks, even if the net effect is not always to make us safer. After every crime, government has to answer what it could have done to prevent it. And often, the easy answer is surveillance. What risks we should mitigate, when does the invocation of risk merely become a pretext for more surveillance — these questions require careful empirical argument.

But in India, the application of surveillance seems to have more to do with discipline than with mitigating risk. In a country with great contempt for government officials (but great clamour for government), it is heretical to even suggest that biometric tracking of the daily attendance and routine of government officials might actually be counterproductive in the long run. 

Universities are clamouring for biometric tracking of teacher and student presence on campus, subtly transforming the character of these spaces. The idea that party leaderships can track their subordinates in a kind of surveillance enterprise is bound to have effects on the very idea of a political party. And then there is, of course, the massive recorded and unrecorded surveillance that the Indian state carries out. To what effect, one does not know.

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Many of these forms of surveillance satiate our demand for discipline. But their long-term effects are likely to be very corrosive. They are often justified on debatable assumptions. Often, the first assumption is that a society that can produce these forms of disciplining can dispense with trust; it can rely on this artificially induced trust, as it were. Since we know we are monitoring them, we can now have more confidence in government officials. This assumption is debatable. It is often said that if you cannot measure or track, you cannot hold someone accountable.

There may be some truth to this. But it is equally true that a society that is structured largely around tracking and measuring will probably produce more gaming of the system than genuine performance. It is a mistake to think that discipline can replace the need for trust. At most, it displaces trust. But the harm that it produces is to create a culture of suspicion, where distrust becomes the norm. Do these artificial practices of disciplining institutionalise distrust? And is institutionalised distrust more harmful in the long run?

Second, a disciplinary society is always a more hierarchical one. Leaders use our clamour for discipline to increase their own power over subordinates. It is no accident that party leaderships or governments often exult at the prospect of instituting more disciplinary measures. In fact, a disciplinary society produces a need to trust fewer people, with more concentration of power.

Third, the debate over mistrust and discipline is often presented as a debate over two views of human nature. On one side, there is Confucius, who famously said that a ruler needs three things: food, weapons and trust. The ruler who cannot have all three should give up weapons first, then food, but he should never give up trust. “Without trust we cannot stand.” On the other side is the Machiavellian idea that we are wretched creatures and fear can only be sustained by the dread of punishment: surveillance is the foundation of danda. But this debate is misconceived in two respects.

First, it depends on how high your aspirations are. It is arguable that fear can induce a certain kind of performance in government. But if you want a government or a set of professionals to be genuinely creative, they have to, in a sense, identify with their vocation, make it their identity and take ownership. But this is exactly what a discipline-induced identity militates against. You can be pretty sure that a government founded on fear, or an institution like a university run through surveillance, is setting the bar very low: it is using external inducement to produce a simulacrum of performance. The biggest reason for our institutional failures is not that we are wretched. It is that these institutions are designed in such a way that those who inhabit them have no ownership of what goes on. And the wider culture of distrust has now reinforced the idea that since you will be condemned anyway, you might as well not perform.

Second, as Foucault presciently noted, the effect of modern forms of surveillance is not to compensate for a pre-identified wretchedness in our natures. Rather, it is to transform us in ways we have no control over. The surveillance gaze transforms us, making us largely effects of the disciplinary techniques that shape us. This is not a world that prizes freedom or individuality. Nor is it a view that understands that the world is less alienating when we can acquire social relationships and professional identities without a presumption of hostility.

Short-term discipline is being secured at the price of entrenching a long-term culture of suspicion. No society can flourish on such a foundation.

If a government is only as good as its system of biometric attendance, if the credibility of a teacher depends largely on the effectiveness of a third party tracking what she does and if a political party and the distribution of power in it are largely a function of its GPS systems, we will be in great trouble as a society. Somewhere, this fascination with surveillance-based discipline has nothing to do with performance: it has to do with a possibly reactionary culture of control. There is a deep disconnect between Modi’s faith in the dispositions and abilities of people and the message that the only way we can induce performance is through maximum government control over them.

The writer is president, Centre for Policy Research, Delhi, and a contributing editor for ‘The Indian Express’
express@expressindia.com

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