As the Parliamentary Standing Committee on the draft Data Protection Bill continues its deliberations over the future of the proposed legislation, one of the issues getting very little public attention is the delicate balance between privacy and transparent governance. These are prima facie opposing values. While privacy aims to shield information from public scrutiny, transparency seeks to put information into the public domain for everyone to scrutinise.
In India, the enactment of the Right to Information Act in 2005 has helped to usher in a transparency revolution, which may now be under a threat with declaration of privacy as a fundamental right. One interesting example in this regard that may help highlight the difficulty of this debate is the Jan Soochna Portal, which was launched by the Rajasthan government in September 2019.
The Jan Soochna Portal was conceptualised as a means of operationalising Section 4(2) of the Right to Information Act, 2005. This provision of the RTI Act requires all government departments to proactively publish all of their records on the internet so as to reduce the need for citizens to file applications under the RTI Act. The Jan Soochna Portal does exactly that by making available granular data to citizens about the disbursal of public funds under a range of social welfare schemes. There has never been a governmental effort that comes close to the Jan Soochna Portal.
Nikhil Dey of the Mazdoor Kisan Shakti Sangathan explains the working of this portal in this video.
The information being made available on the portal is stunning from a transparency perspective. Anybody from across the world can log on to the portal and access the ration records, pension records and public health insurance records for every citizen in Rajasthan who has availed of any one of the above schemes.
The portal offers a drill down of data for each ward and panchayat in Rajasthan and the granularity of data on the portal is quite amazing. For example, it is possible to track the consumption of rations from each family in a ward because the portal displays data for withdrawals made by each ration card owner from the public distribution system. This data includes the kind of food grain/kerosene/sugar that was withdrawn, including the quantum and additionally the date and time on which the transaction was conducted.
The address of the ration card holders along with the names of the card holder and the person conducting such transactions are also publicly displayed on the website. Similarly, granular data regarding the disbursal of pensions under various state government schemes and reimbursements being made to beneficiaries of the health insurance scheme offered by the state government is also made available for each citizen. The names of all the beneficiaries along with the addresses and the amounts reimbursed are available on the portal.
Since its launch last year, there has been an outpouring of public praise for the Jan Soochna Portal. Retired Justice Madan Lokur and the Hindu
wrote editorials praising the transparency ushered in by this portal and called for it to be replicated across the country. Several others have since followed suit explaining how this portal has empowered the people of Rajasthan in getting their due from the state.
The rather surprising aspect about the public discourse around the Jan Soochna Portal is the utter silence of the privacy activists who have opposed on the Aadhaar programme on the grounds that it was an assault on the fundamental right to privacy. While the Aadhaar programme collected plenty of sensitive personal information such as fingerprints, iris scans and personal details ranging from names to addresses, it was designed in a way that such information was never published. Thus apart from unauthorised access to the data by rogue actors or court orders, none of the Aadhaar data is proactively published.
One of the key privacy concerns with the Aadhaar project, apart from its collection of biometrics, is that it would enable the state to create a 360-degree profile of a citizen since a citizen’s Aadhaar number could be embedded in various databases thereby allowing the state to build a profile of the citizen with relatively little difficulty. The Jan Soochna portal offers the same possibility by allowing the state, and by implication civil society, the ability to track the expenditure of public funds on individual citizens.
So how then, should we classify the Jan Soochna Portal? Is it an instrument of state surveillance or is it an instrument of accountability for expenditure of public funds?
The aim of making all of this information publicly available on the Jan Soochna Portal is to make it easier for citizens to access records and conduct social audits. It has long been the contention of Right to Information activists that the best way to ensure accountability of the ration shop that administer distribution of rations under the Public Distribution System, is to give people the right to access the records of the shop owner in order to conduct “social audits” aimed at identifying “ghost beneficiaries” and missing rations.
The idea is that if all of this information is made publicly available it will help communities to root out “ghost payments” and siphoning of funds by public officials. For other programmes like the Mahatma Gandhi National Rural Employment Guarantee Scheme, the Mazdoor Kisan Shakti Sangathan pioneered the idea of “transparency walls” where the details of all beneficiaries under the scheme, including the days of employment and money received were painted on a wall of the village.
The Jan Soochana Portal is merely a digital replication of this idea, except now the entire world can view the information that was otherwise visible to only fellow villagers.
So why is it that nobody is raising privacy concerns about this gigantic public database that contains the addresses, ration details, pension payments, caste details, health insurance details of most Rajasthanis? Is it because the portal is publishing information about primarily poor Rajasthanis or is it because the poor are willing to forgo their right to privacy in favour of transparent governance that guarantees them their food, work and health?
An even more important question is whether the Jan Soochna Portal will survive a constitutional challenge to its legality? Post the Puttaswamy judgment of the Supreme Court where “informational privacy” was declared a fundamental right, it is unlikely that the Jan Soochna Portal will withstand a privacy challenge before the court.
This is because of the proportionality test adopted by the court. One of the prongs of this test is whether the government has adopted the least intrusive measure to achieve its policy goal. If the primary policy goal of the Jan Soochna Portal is described as guaranteeing access to public records, it can be easily argued that the choice to make all the information publicly available without any access controls is a vastly disproportionate measure that infringes on privacy.
The court could just order the government to put in place access controls that disallow one citizen from viewing the records of another. Such an order would destroy the very logic of the database.
Strangely not many appear to be talking about this tension between transparency and privacy and the manner in which the Draft Personal Data Protection Bill can negotiate this tension to ensure the survival of transparency oriented databases. Rather the entire debate is focussed on the implications of the Bill for the private sector. In its current form, the Bill works on the assumption that information collected by the state will not be publicly disclosed, without anticipating databases like the Jan Soochna Portal where the entire intent of the state is to make public all the information generated through its systems. Thus it is not very clear whether the Bill would even apply to the Jan Soochna Portal.
However in the interests of abundant caution, transparency movements like the National Campaign for People’s Right to Information should pressure the Standing Committee to include language into the Bill that will shield transparency oriented databases like the Jan Soochana Portal from interference by any future Data Protection Authority.
The writer is an advocate.