Opinion

The end of privacy: Aadhaar is being converted into the world’s biggest surveillance engine

Privacy is essential to a democracy and the rights of citizens. An undemocratic way is being used to take away this right.

Democracies survive on the delicate balance of power between the ruling class – the executive, generally known as the government – and the citizens. The more power citizens get, the more robust the democracy. As the ruling class accrues more power to itself, it erodes democracy to a point where it ceases to exist.

This axiom has always held true. The fast expanding remit of the Unique Identity number project, Aadhaar, has now taken a giant leap with an amendment to the Finance Bill making it a mandatory requirement for filing Income Tax returns.

The way the move was sought to be pushed in Parliament is part of a trend that is now becoming a clear and present danger to India’s democracy.

Erosion of Parliament

In many ways, the policy decisions around Aadhaar could be seen as illustrative of the erosion of Parliament as an institution. Meghnad S, a policy analyst working with Tathagat Sathpathy, Odisha Member of Parliament from the Biju Janta Dal, brought this out as he live tweeted how the amendments to the Finance Bill making Aadhaar mandatory were introduced in Parliament.

First, the government “cleverly let MPs from major parties give their speeches before they dropped the amendment bomb. Kept it for the last minute,” tweeted Meghnad.

Second, when Finance Minister Arun Jaitley had introduced the Bill, it had 150 clauses, Meghnad pointed out. “Yesterday, Jaitley added 33 more without warning. This is unprecedented,” he tweeted, quoting member of Parliament Saugata Roy from the Trinamool Congress.

The members of Parliament as a result had no idea about what these clauses meant, let alone understand the import of the amendments that were eventually passed.

This, however, was not the first time Aadhaar had undermined Parliament. When first introduced by the Congress-led United Progressive Alliance government, the National Identification Authority of India Bill, 2010 had been sent to a Standing Committee of Finance of the 15th Lok Sabha. The all-party Committee was caustic about the project in its report.

For instance, when the Committee referred to the failed identification project in the United Kingdom, the UPA government attributed the failure to the designing of the framework and structure to a “security perspective”.

“The UID scheme is envisaged as a mean to enhance the delivery of welfare benefits and services,” it said in defence. It also said that unlike the UK identification project the Aadhaar project would not be made mandatory. This was the assurance given to Parliament.

The committee also made the following observations:

  • The UID scheme has been conceptualised with no clarity of purpose…and is being implemented in a directionless way.
  • The UID scheme is ladled with serious lacunae.
  • The scheme was being implemented in an “overbearing manner”.
  • The enactment of legislation of a data protection and privacy law was a “pre-requisite” for the Aadhaar scheme. 
  • The Aadhaar numbers were being issued to all residents of India, virtually giving certain rights and benefits to “illegal immigrants” while burdening citizens with new restrictions.

The Chairman of this committee was none other than senior BJP leader Yashwant Sinha, with representation from all parties. But in this session of Parliament, BJP has ignored all the issues flagged by the Standing Committee, while also ensuring that the MPs never had a chance to see and debate the amendments.

Worse, by including the amendments as a Money bill, it has also effectively deprived the Rajya Sabha to stall it and send it back to Lok Sabha for further deliberations.

Parliament has thus been rendered ineffectual by the sheer force of numbers that the government currently enjoys in Lok Sabha, along with a procedure that was deliberately put in place to ensure that MPs did not get the time to read the amendments.

Erosion of the Supreme Court

It is not only Executive and Legislature that have failed Aadhaar.

For months, the Supreme Court has not had the time to set up a Constitutional bench to hear a Aadhaar-related case that will adjudicate whether privacy is a fundamental right or not.

But the Supreme Court has had time to deal with a case related to the Board of Cricket Control of India, and even hold regular hearings.

In October 2015, the Supreme Court made it clear that Aadhaar was voluntary and could not be made mandatory.

“The Aadhaar card scheme is purely voluntary and it cannot be made mandatory till the matter is decided by the Court one way or another,” the order had stated.

In September 2016, the Supreme Court once again reiterated this position. In fact, it sought an explanation from the government and asked it to remove a condition making it mandatory for the students to give their Aadhaar numbers for various scholarship schemes, despite a five-bench order that had restrained the Central government.

Making Aadhaar mandatory to file IT returns ensures that this order is wilfully ignored and in fact seems to hold the Supreme Court’s order in contempt.

This is how it played out in Lok Sabha:

After the Executive has ensured that the Legislature is undermined, will the Judiciary – the Supreme Court – come to the rescue?

How does a citizen, dependant on the three pillars of democracy, interpret this? Particularly when the fourth pillar seems to be abdicating its duty as well?

Erosion of Citizen’s Rights

On April 8, 2014, just a month before he took over as prime minister, Narendra Modi had this to say about Aadhaar:

Today, under Prime Minister Modi’s government, the rules promulgated under the Aadhaar Act 2016, the Unique Identification Authority of India can file a first information report against any citizen who questions its security. What he called a political gimmick, a scheme without vision, has now become his government’s signature scheme.

The Right to Information Act has been in place for over a decade. It is a right given to citizens to ensure that they can exercise the power of transparency over those they elect to govern. But this is an Act that has been steadily eroded to ensure that governments can act with impunity and not bother about explaining to citizens why they are taking such decisions.

Take the case of demonetisation. A number of RTI applications have been turned down on how or why this decision was taken in the first place. Citizens are expected to accept political statements in lieu of facts. This ensures that the government can and will get away with any decision, as long as it enjoys political might. This is exactly how totalitarian regimes work.

Surveillance regime

The Aadhaar scheme has failed spectacularly on all these metrics. Nandan Nilekani, who joined the UPA government as the first chairman of the scheme, seems to have succeeded in creating the world’s biggest surveillance engine, ensuring that any government will have complete access to all the data of the citizen, and can use it to manipulate any one at will. Citizens have no protection against this surveillance any more. Section 33 of the Aadhaar Act ensures that under the guise of “national security”, the government can access any information without providing any explanation to anyone. It does not define what is “national security” so any reason can be used to access and use this data.

In Nazi Germany, this kind of a surveillance regime was used to isolate Jews and other minorities and exterminate them. And this was done with the approval of the majority.

Privacy is essential to a democracy and the rights of citizens. Four arguments underscoring the need for privacy in a democracy were advanced by Professor Alan Westin, whose work has shaped some of the biggest debates on the subject.

Privacy, Westin pointed out, provides for personal autonomy. Without autonomy, individuals cease to exist and lose all productivity. Communist and fascist regimes thrived on depriving citizens of their autonomy.

Privacy gives people an opportunity for emotional release. Without this, citizens will be constantly under watch, unable to express themselves. Such a situation undermines the very basis of a society and leads to perennial conflicts.

There is a need to engage in self evaluation and that is endemic to the need for privacy. Imagine having to constantly be under the gaze, where every action is minutely examined. With the right to self evaluation in private taken away, not only does society break down, it ends productivity, leading to chaos, Westin pointed out.

Finally, the need to share confidence and intimacies is critical for any healthy society to flourish. In the absence of privacy, societies fail to share such intimacies, leading to a social break down that are at the heart of successful and progressive societies.

For a party that promised minimum government and maximum governance, the BJP has done exactly the opposite. Through brute force and guile, it is ensuring an omnipotent and omnipresent government that will have suspicion of its citizens as the default option. This is exactly how democracies come to an end – by giving the ruling oligarchy unbridled power to keep the citizens under watch so that they are rendered incapable of questioning them.

Corrections and clarifications: In an earlier version of this story Section 33 of Aadhaar Act was mistakenly referred to as Section 32.

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