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Protect the Right to Privacy as a Fundamental Right!

August 07, 2015 13:10 IST

'The government's proposal to store citizens' data including Aadhaar data under its Digital India initiative on cloud is violative of the citizens' human rights because the cloud is admittedly beyond India's jurisdiction,' says Gopal Krishna.

IMAGE: Village women queue up to get themselves enrolled for the Unique Identification database system at Merta district in Rajasthan. Photograph: Mansi Thapliyal/Reuters

All history is contemporary history, said Benedetto Croce, the Italian philosopher. The case of the biometric Unique Identification/Adhaar number project and related schemes shows history in that light.

The collection of biometric data, personal, sensitive information which is deemed an 'asset,' is illegal and the mandatory requirement for Aadhaar is in manifest contempt of the Supreme Court's repeated orders from September 23, 2013, to March 16, 2015.

When confronted with such gross wrongful acts, adopting the posture of 'offence is the best defence' and in a stark case of misrepresentation of relevant precedents, Attorney General Mukul Rohatgi orally submitted in the biometric Aadhaar case in the Supreme Court that the Right to Privacy is not a Fundamental Right.

This assertion, ahead of the introduction of the Human DNA Profiling Bill 2015 in Parliament, is highly motivated. This Bill is aimed at creating a national DNA databank and the regulation of collection and use of genetic material among other things.

Jurists and groups working on civil liberties have long underlined the link between this Bill and the National Identification Authority of India Bill, 2010, which referred to the collection of biometric data but chose not to define it.

Interestingly, it is defined elsewhere. Biometrics means the technologies that measure and analyse human body characteristics, such as 'fingerprints', 'eye retinas and irises', 'voice patterns', 'facial patterns', 'hand measurements' and 'DNA' for authentication purposes, as per the Information Technology (reasonable security practices and procedures and sensitive personal data or information) Rules, 2011, under Section 87 read with Section 43A of the Information Technology Act, 2000.

The Human DNA Profiling Bill has been prepared which, when enacted, could require the citizen to give one's DNA to the State. What ambitions does this reveal? This would complete the journey of subjugation which started with fingerprints and is possibly ending in DNA profiling.

The fact is the Supreme Court conclusively established privacy jurisprudence on July 4, 2011, by its judgment in the Ram Jethmalani and Others vs Union of India and Others case , known as the black money case. The honourable court had then held: 'Right to Privacy is an integral part of the Right to Life. This is a cherished Constitutional value and it is important that human beings be allowed domains of freedom that are free of public scrutiny unless they act in an unlawful manner. As Constitutional adjudicators we always have to be mindful of preserving the sanctity of Constitutional values, and hasty steps that derogate from Fundamental Rights, whether urged by governments or private citizens, howsoever well meaning they may be, have to be necessarily very carefully scrutinised.'

It further held: 'We are not proposing that constitutions cannot be interpreted in a manner that allows the nation-State to tackle the problems it faces. The principle is that exceptions cannot be carved out willy-nilly and without forethought as to the damage they may cause.'

The Unique Identification Authority of India had set up a Biometrics Standards Committee which revealed that 'the biometrics will be captured for authentication by government departments and commercial organisations at the time of service delivery.' The 'commercial organisation' mentioned herein is not defined. .

Notably, the Biometrics Standards Committee had categorically stated that UID/Aadhaar is meant only for 'civilian application,' but the order on Aadhaar-enabled biometric attendance system has been extended to defence employees as well.

The fact remains the UID was first adopted by the Pentagon, and later by the North Atlantic Treaty Organisation. It has subsequently been pushed through the World Bank's eTransform Initiative in partnership with France, South Korea, Gemalto, IBM, L1, Microsoft, Intel and Pfizer. Some of them have signed agreements with UIDAI. This constitutes not only a threat to privacy, but also to national security.

Dr Manmohan Singh as prime minister distributed Unique Identification/Aadhaar numbers among the villagers of Tembhli village in Nandurbar district of Maharashtra on September 29, 2010. 'The Aadhaar number will ease the difficulties in identification, by providing a nationally valid and verifiable single source of identity proof. The UIDAI will ensure the uniqueness of the Aadhaar numbers through the use of biometric attributes (finger prints and iris) which will be linked to the number,' it was then stated.

It has now come to light as per an RTI reply of April 2015 that out of 83.5 crore (835 million) Aadhaar numbers issued so far, only 2.19 lakh (219,000) -- 0.03 per cent -- comprised those who did not have a pre-existing ID proof. It shows how Indians were taken for a ride.

It must also be noticed that even the Identification of Prisoners Act, 1920, of colonial vintage, reads: 'The object of this bill is to provide legal authority for taking measurements, finger impressions, footprints and photographs of persons convicted of, or arrested in connection with, certain offences.'

According to this law, at the time of the acquittal of the prisoner, his biometric data is required to be destroyed. Since 1857, fingerprint identification methods have been used by police agencies in India and around the world to identify suspected rebels, political dissidents and criminals. The method is unfolding to indiscriminately profile citizens in general to identify them.

The UID/Aadhaar project, however, stores the biometric data forever.

Notably, the government's own draft approach paper on the privacy bill states, 'Data privacy and the need to protect personal information is almost never a concern when data is stored in a decentralised manner. Data that is maintained in silos is largely useless outside that silo and consequently has a low likelihood of causing any damage. However, all this is likely to change with the implementation of the UID project. One of the inevitable consequences of the UID project will be that the UID number will unify multiple databases. As more and more agencies of the government sign on to the UID project, the UID number will become the common thread that links all those databases together. Over time, private enterprise could also adopt the UID number as an identifier for the purposes of the delivery of their services or even for enrolment as a customer.'

It inferred that 'once this happens, the separation of data that currently exists between multiple databases will vanish.'

Unmindful of the central government's promptness to promote and support, Aadhaar is coincidentally supported by Mukesh Ambani of Reliance Industries who has expressed his support for biometric identification saying, 'Aadhaar, an initiative of the Unique Identification Authority of India, will soon support the world's largest online platform to deliver government welfare services directly to the poor.'

Ambani has written this in a chapter titled 'Making the next leap,' endorsing biometric profiling based identification in the book Reimagining India edited by McKinsey & Co and published by Simon & Schuster in November 2013. This appears to be an explicit signal to the political parties and media houses who receive direct and indirect corporate donations from companies as their clients in myriad disguises.

Meanwhile, Parliament remains a mute spectator to the illegal and illegitimate implementation of Aadhaar-related programmes.

Admittedly, the personal sensitive information of Indian residents is being stored by foreign companies for seven years. The fact is that in an electronic age, if some foreign entity stores data even for a minute, the data gets stored forever.

The government's proposal to store citizens' data including Aadhaar data under its Digital India initiative on cloud is violative of the citizens' human rights because the cloud is admittedly beyond India's jurisdiction.

What is not being realised is that it is a case of biometric profiling by international financial institutions who have a vested interest in surveillance of financial transactions. So far, central and state legislators have failed to bring the World Bank group and other IFIs under legislative oversight.

A situation is emerging where, if the pre-existing databases like the electoral database, Census and other databases which are under preparation are converged, these unaccountable and undemocratic financial institutions may never come under Parliamentary scrutiny.

Taking cognisance of this situation, there is a compelling logic to protect the Right to Privacy as an inalienable Fundamental Right which the Constitution of India affirms.

Not surprisingly, eminent jurists like the late Justice V R Krishna Iyer, the late K G Kannabiran, Professor Upendra Baxi, the late S R Sankaran, secretary, Government of India, historians like Profesor Romila Thapar and Uma Chakravarty besides Justice A P Shah, the former chief justice of the Madras and Delhi high courts and current chairman of the Law Commission of India, have demanded that Aadhaar 'the project should be halted before it goes any further and the prelude to the project be attended to, the public informed and consulted, and the wisdom of the project determined.'

Most recently, in a welcome verdict, in a case filed by the Labour member of the British parliament Tom Watson and the Conservative MP David Davis, the United Kingom's high court in July 2015 declared the Data Retention and Investigatory Powers Act 2014, as illegal. This Act provided access to everyone's data by the British police and other agencies, including permission for interception of communications. Interception of biometric data by the Government of India also falls in the same category.

It is apparent that the law officer is trying to kill several birds with one act of misrepresentation and by adopting delaying tactics. When the Supreme Court was all set to take the government to task for the violation of its order by making Aadhaar mandatory, the law officer apparently attempted to outwit them or divert the court's attention by making indefensible oral observations and an inconsistent affidavit seeking to make Aadhaar mandatory.

In the case of wherein the legality of UIDAI is to be decided, the court has been presented a fait accompli by the government.

Given the fact that the hearing is underway since July 21, all eyes are on the three-judge bench to set matters right by ensuring that its orders are complied with before addressing issues of Constitutionality.

In a situation no one has been held accountable for violating the court's previous orders on the mandatoriness of Aadhaar, wherein almost every government entity has deliberately chosen not to comply with it, how can the court be convinced that its verdict on the Constitutionality of biometric data collection and Aadhaar will be complied with?

It is germane to recall that Mahatma Gandhi had opposed the fingerprint-based identification scheme of the government in South Africa in 1906, which required Asians to report to the Registrar of Asiatics and obtain, upon the submission of a complete set of fingerprints, a certificate which would then have to be produced upon demand. Mahatma Gandhi challenged it and called it a 'Black Act'.

Had Gandhi been alive, he would have condemned biometric surveillance through biometric Aadhaar and the Human DNA Profiling Bill 2015 as Black Acts.

Gopal Krishna