Usha Ramanathan, legal researcher who writes and speaks on the jurisprudence of law, poverty and rights, speaks to Nehmat Kaur about the collusion of State, and interests of private entities through the Aadhaar project
NK: What are your reflections on the privacy judgment?
UR: The judgment is unequivocal in recognizing privacy as a fundamental right. Prior to this judgment, privacy was developing from case to case, and its strength or weakness had to be tested in each situation. Now, this judgment is a categorical statement that privacy is not just a Fundamental Right, it is a Fundamental Right that is on the same plane as the right to life and personal liberty; that dignity needs privacy, and that privacy is part of all the fundamental rights that are in Part III of the Constitution. This sets at rest any niggling question that may existed about the constitutional standing of this right.
The judges have recognised that privacy, like life and liberty, is inalienable, a part of natural law, and is a restraint on the power of the state over the people.
Importantly, the judgment traces the jurisprudence of not just the right to privacy, but of fundamental rights. It recognises the high points and the low, and explains the evolution of fundamental rights through the decades. It sets the law straight (forgive the pun) by righting the aberrations – so, the wrongs in Section 377 (Suresh Koushal v Naz Foundation judgement) and ADM Jabalpur are squarely addressed and categorically overruled.
The understanding of dignity as a core element of fundamental rights is of great significance.
NK: What is your opposition to the Aadhaar project?
UR: Let me first clarify that my problems with the Unique Identification (UID) project are not only in the context of privacy. Privacy is certainly a significant element, but there are a range of other things that are also important.
“First, it is a project that sets out to database the whole citizenry. It is a collaborative effort in which state power and corporate ambition convert the people into subjects of the state and into data objects.”
It is interesting that Justice Chelameswar uses the word ‘subjects’ in his judgment, to indicate that he is speaking of citizens and non-citizens alike. But he has the word in capital letters all through the judgment, indicating a discomfort with the term, and seeming to say that they are subjects of the law and not subjects of the state. This is a discomfort that we should feel about the idea of the subject.
Second, the project has been carried on through practices of deceit, and the complete abandonment of the rule of law. In the beginning, it was marketed as being voluntary; but it quickly became coercive and choiceless. It was said that it was to deliver services to the poor – even the 2016 Aadhaar Act claims that in its title – but it expanded way, way beyond that. The multiple orders of the Supreme Court to protect the interests of the people have been flouted unashamedly. There was no law for the longest time. Then, when a law was enacted, it was deliberately done without allowing Parliament to debate the Bill, while rendering the Rajya Sabha redundant by classifying it as a Money Bill. In October 2015, the government had asked that the court permit the use of the UID for verifying sim cards, and the court had not acceded to this plea. Yet, in February 2017, the government used a PIL in a matter unconnected with the UID to get a 2 judge bench to take on record that they would be using the UID to get mobile connections verified. The list is long.
Third reason for opposing the UID is exclusion. This was a project that was started without testing anything. The UIDAI documents reveal that they hadn’t tested biometrics when they decided to adopt it, so they had no idea if biometrics would work in this context . Well into the project in 2015, the UIDAI said they had set up the UBCC (UIDAI Biometric Centre of Competence) to research the technology: because `the nature and diversity of India’s working population makes biometrics a challenge’, but they were already using it in PDS. It is no wonder that such large numbers of people, especially the poor and the aged and the disabled, are unable to make biometrics work for them. Cearly, exclusion was built into the project.
Fourth, is questions about what these technologies are, and who these technology providers. Companies like L1 Identity Solutions, Accenture, Morpho, are all foreign companies with close links to the intelligence establishments of those countries. L1 Identity Solutions, for instance. has had a vey close, and a `revolving door’ relationship, with the CIA. It has now been bought over by a French company in which the French government has a substantial share. In response to an RTI query about how they could s our information to such foreign companies, , they responded that they had no means of knowing that it is a foreign company because they have a registered office here, and that’s all they ask for! Such deliberate ignorance is a major issue .
I must clarify: it is not that it would be fine if the companies were Indian instead. We don’t want anyone doing this kind of databasing and profiling and surveillance.
The problems are legion. If you see the petitions in court, you will see how in how many ways the project threatens freedom, and how it strengthens corporate and state power through coercion, lawlessness and contempt.
Three terms were used by the project proponents even in 2009 to describe the ambitions of the project: unique, universal, and ubiquitous- all three have been problematic. Unique, because this was based on technologies that hadn’t been tested and, as we can see now, there are insuperable hurdles that biometrics is posing. Ubiquitous, because they want it in every database. Across the world the idea of function creep is recognized, that you start with intending to use something for a particular purpose and then the function just expands into a whole host of other things. Except that here, it is not accidental at all, but deliberate. The purpose is to make it possible to profile us, tag us, to track us, and a discourse is being produced to make this appear legitimate.
“One of the most offensive things about this project is the characterisation of the people in this country as people who have to keep proving that they are not corrupt, they are not tax evaders, not money launders, not black money hoarders, not terrorists, not ghosts, not duplicates.”
So at every stage, we are being told that if we don’t report to … well, all manner of agencies, that must be because we are doing something we shouldn’t be doing, and the state has a right to get after us. This is not an age of irony, yet it must be said that it most ironic that RTI, which was made into a law in 2005 to make the state transparent to the people, is being inverted, not just making people transparent to the state, but having to report regularly to the state and be punished as offenders if we don’t.
Increasingly, we have been witness to another phenomenon — the propelling of corporate interest. Data, they say, is the new oil. Personal information is being viewed as property that can be transacted, and transferred and made into business opportunity. Mr. Nilekani calls it the ‘trickle up theory’, where people have little wealth, but they have data about themselves, and that data has to be made to trickle up to create wealth for those who make business out of it. In return for leaving digital footprints everywhere, the individual may get credit if the record reads well! . This, they say, is their idea of how we benefit from making transferring property in our data. So it is surveillance for the state, and money from our data for the corporate.
NK: Is privacy an elitist concept?
UR: This is interesting. You will remember that Mr. Venugopal argued in court that even if the court were to recognize privacy as a right, let there be a welfare exception. After all, the UIDAI process has been promoted and marketed as if it were for delivering services to the poor. And to do that, the AG says, the court should declare that the poor do not have certain rights. They are, in other words, rights that the poor can ill afford; and will care for even less. Interestingly, there were other cases going onat the same time that had privacy attheir core – viz., the WhatsApp case, the defamation case. In those courts, the Government argued that privacy is a fundamental right that needs state protection. It is only in the UIDAI case that they were saying, not just that the state does not have a responsibility to protect that right, but that we don’t have that right at all. Just take a look at what this denial of privacy means: the number is being demanded as a prelude in the provision of all manner of services. Women who are “rescued” from prostitution before they can be rehabilitated, they have to put their number into the rehabilitation database, otherwise they are not going to get rehabilitated. The first thing such a woman needs is anonymity, if you are serious about it. Bhopal gas victims, after all these years of maltreatment and neglect are now being told that for their right to rehabilitation to be acknowledged, they have to put their number into the database. Persons who are HIV+ are having to give their number to the database, and that is driving them away from ART treatment.
“When persons engaged in manual scavenging are to be assisted in being rehabilitated, they have to embed their number in the data base. Elite concept? Really? Privacy, anonymity and the ability to erase their previous work from their lives and records is a basic right of persons who have faced stigma and discrimination because of their work!”
As for leaving the number with mobile phone operators and banks, this is going way beyond what the 2016 Act permits – no private company can make parting with the number mandatory, but the state is mandating companies mandate us. And the penalty if we don’t? . Our bank accounts are to be frozen! This is not about denial of service; it is about denying us access to our own money! The government is demanding that all agencies act as its agent and collect and keep and pass on information about the people. This is why the emerging scenario is not just about the `surveillance state’, but also about a `surveillance society’.
NK: How would you reply to the question that one shouldn’t care about invasion of privacy if they have nothing to hide?
UR: There are various ways of answering this question. First of all the thing to recognize is the circumstance where it is raised. When someone wants to violate my privacy right, I have a right to ask them, why would you think it is alright for you to violate my right. Here, they are inverting it- I am going to invade your privacy, what do you have to hide? If you have nothing to hide, why should I not invade your privacy?
What is being said is that those who value privacy have something to hide, and those who have something to hide are the corrupt. And that explains why the petitioners opposing the UID project in court are a source of embarrassment- how brazen would they need to be to say that Bezwada Wilson, Shantha Sinha, Aruna Roy, Nikhil Dey, and two army men, and a host of other regular people (but with extraordinary resolve) have an interest in opposing the project, because they have evil designs and that’s why they don’t want to be tied down by this number!
Secondly, the ability to converge data is about causing surveillance. Literature and history tells us that this has to be assiduously avoided. So if somebody hasn’t read 1984, they should read it, or Brave New World, or IBM and the Holocaust, and Glenn Greenwald’s No Place to Hide – for the reason that these are people who have engaged with what it means when somebody else has power over you. Privacy is the contestation of that power. And it is very important to retain that ability to contest that power.
Remember also, that this kind of project is something that is not about one point in time. It wants to retain information about you from before you are born till after you die. That is the kind of power they are talking about.
NK: A Committee has been formed to draft a Data Protection Framework for the country. What do think are some key features that should be incorporated in this bill?
UR: There is already the 2012 report of the Justice Shah committee, I was a member so I know how much went into putting it together and the centrality of the interest in protecting citizens’ interest. If you look at the Data Protection Committee that has been set up under Justice Srikrishna’s lead, there are at least two people who have openly said to the court that they believe that the people of this country do not have a right to privacy. One of them is the UIDAI chairperson. I don’t know what kind of value to attribute to this committee if the chief of the UIDAI is on the data protection committee, when its main interrogation and challenge is to the UIDAI database and the way it is being used. If the purpose of the committee is to serve the purpose of those who are on the committee, and not serve the purpose of the people of this country, then I think it is a useless committee. The AP Shah Committee already has 9 privacy principles and a lot of that is about data protection. I think it is important to draw this distinction between privacy and data protection, in the sense that we need a data protection law because there are multiple databases that are being created in various kinds of sites. The 2011 Information Technology Rules are an absurd set of rules that say that even sensitive personal data, if it is electronically held, the government can ask and get it. This idea of state power is extraordinary!
At a recent conference, a speaker made an observation that I think always needs to be remembered. She said, when we say data protection, it is not just about protecting data; it is about protecting people. This is what this committee will have to remember.
NK: Any other comments?
UR: When the Attorney General in 2015 made the comment that privacy is not a right for the people of this country, the idea seemed to be to kick it upstairs so that the case will not get heard in the longest time; and the government did get a long period, of over 700 fays, when they could carry on heedless of court order or law or people’s problems and protests. They have been using that time to keep on building up the database, through coercion, threat and bullying. Now, even after the privacy judgment, the compulsion to put this number in various databases continues with ferocity. The court has been approached to hear the UID case now that the privacy judgment is done and delivered, but now the court says that there is no urgency because the date to link to various databases is not yet upon us! Yet, it is no secret that the pressure on the people Is immense, as close to harassment as anything else we have experienced in public policy.
I also think that if you read the 6 judgments, and read the two judges who have heard the UID matter before, and who therefore have an understanding of what has been happening, you will find that their depiction of how they view privacy includes an understanding of how technology, including biometrics, is attempted to be used to rip our identities apart and have it taken over by the state. I think when judges hear what the project is actually about, their attitude to it is very different from judges who have not heard and who are then led to think that this is about technology, innovation, and the delivery of services. It is only a full hearing that will help sift myth from fact.
If it was the challenge to privacy that was used to defer an hearing in 2015, now it is the Srikrishna Committee’s work. The AG says that the court should wait for that report before hearing the case. The truth is that no rational data protection framework can save the UID project. Also, it is the court’s judgment of the UID project that would be binding on the committee; not the other way around. What then is the logic of waiting for the report?
It seems, again, that all they want is to create a fait accompli, and say oh, it is already everywhere, so it is difficult to dismantle, so even if it is unconstitutional, the court should accept that it cannot be undone and pass orders accordingly. I honestly don’t think there is such a thing as not being able to dismantle the UID, especially given the threat to constitutionalism that it poses, the failures of untested technology that is already finding its victims among those unable to get the food to which they are entitled, and the threat it poses to personal security and national security; but the court needs to recognize this, and set the case going really fast.
Nehmat Kaur is a Lawyer working at Lawyers Collective
