Po­lit­i­cal agenda

FrontLine - - COVER STORY - BY ANU­PAM SARAPH

The or­der au­tho­ris­ing 10 agen­cies to mon­i­tor and in­ter­cept com­puter re­sources is a pre­tend law meant to be an en­abler of

par­ti­san ac­tions.

DR SAU­RABH GARG, JOINT SEC­RE­TARY IN the Min­istry of Fi­nance, is­sued the no­ti­fi­ca­tion F.NO.10/ 03/2016-CY.I on Novem­ber 8, 2016, to de­clare de­mon­eti­sa­tion. He stated the or­der was “in ex­er­cise of the pow­ers con­ferred by Sub-sec­tion (2) of Sec­tion 26 of the Re­serve Bank of In­dia Act, 1934 (2 of 1934)”. Sub­sec­tion (2) of Sec­tion 26 re­quires the rec­om­men­da­tion of the Cen­tral Board of Di­rec­tors of the bank ap­pointed as per Sec­tion 8 of the RBI Act. The rec­om­men­da­tion of the Cen­tral Board, which formed the ba­sis and gave le­git­i­macy to de­mon­eti­sa­tion, has re­mained elu­sive. In the ab­sence of such rec­om­men­da­tion, de­mon­eti­sa­tion would be what is called “pre­tend law”—some­thing that has no force of law but ap­pears to be law.

The RBI’S re­port on the “Macroe­co­nomic Im­pact of De­mon­eti­sa­tion” states that de­mon­eti­sa­tion was aimed at ad­dress­ing cor­rup­tion, black money, coun­ter­feit cur­rency and ter­ror fi­nanc­ing. But there is no re­port from the RBI on the im­pact of de­mon­eti­sa­tion in ad­dress­ing cor­rup­tion, black money, coun­ter­feit cur­rency and ter­ror fi­nanc­ing.

While a year-end re­view re­leased by the Min­istry of Fi­nance in 2017 claims a 50 per cent re­duc­tion in the value of high-denom­i­na­tion notes, the RBI An­nual Re­port ac­tu­ally in­di­cates a dou­bling of high-value denom­i­na­tion sup­ply. While we seek ex­pla­na­tions about de­mon­eti­sa­tion ad­dress­ing cor­rup­tion, black money, coun­ter­feit cur­rency and ter­ror fi­nanc­ing, noth­ing fits as

well as its im­pact on the po­lit­i­cal fortunes of the Bharatiya Janata Party (BJP) in the elec­tion-bound States im­me­di­ately after de­mon­eti­sa­tion.

Ac­cord­ing to sur­vey data of elec­tion fund­ing from Bi­har, Jhark­hand and Ut­tar Pradesh, more than 46 per cent of cam­paign funds are sourced from black money. Po­lit­i­cal ob­servers and the Elec­tion Com­mis­sion of In­dia (ECI) have for long recog­nised that po­lit­i­cal fund­ing hap­pens in cash. In the re­cently con­cluded elec­tions in Mad­hya Pradesh, Ra­jasthan, Ch­hat­tis­garh, Te­lan­gana and Mi­zo­ram, the ECI seized more than Rs.200 crore.

It is, there­fore, un­sur­pris­ing that the de­mon­eti­sa­tion of 500- and 1,000-ru­pee notes hap­pened just three months be­fore the elec­tions in Ut­tar Pradesh, Ut­tarak­hand, Pun­jab, Goa and Ma­nipur.

The need for 500- and 1,000-ru­pee notes to be ex­changed with other denom­i­na­tion of any value, it ob­vi­ously chal­lenged the elec­tion fund­ing of those caught by sur­prise. Po­lit­i­cal fortunes changed as the money in cir­cu­la­tion changed.

Shake­speare ob­vi­ously un­der­stood the ways of men best when he de­clared: “Though this be mad­ness, yet there is method in ’t.”

PRE­TEND LAWS

Union Home Sec­re­tary Ra­jiv Gauba’s or­der No.14/07/ 2011-T of De­cem­ber 20, 2018, au­tho­ris­ing 10 agen­cies to mon­i­tor, in­ter­cept and de­crypt any in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored in any com­puter re­source is not dis­sim­i­lar to Garg’s no­ti­fi­ca­tion on de­mon­eti­sa­tion. Nor is it dis­sim­i­lar to Man­deep Kaur’s (Deputy Sec­re­tary in the De­part­ment of Rev­enue) no­ti­fi­ca­tion of the Pre­ven­tion of Money-laun­der­ing (Main­te­nance of Records) Sec­ond Amend­ment Rules, 2017, vide No­ti­fi­ca­tion NO.2/F No. P.12011/11/2016-ES CELL-DOR.

The Min­istry cites “the pow­ers con­ferred by Sub­sec­tion (1) read with Clause (h), Clause (i), Clause (j) and Clause (k) of sub-sec­tion (2) of Sec­tion 73 of the Pre­ven­tion of Money-laun­der­ing Act, 2002 (15 of 2003)” in for­mu­lat­ing these rules.

These rules de­clared that bank ac­counts shall cease to be op­er­a­tional un­til the ac­count hold­ers sub­mit their Aad­haar num­ber to the bank.

Since it is not pub­lic knowl­edge, it should be un­der­lined that Clause (h) of the Pre­ven­tion of Money-laun­der­ing Act, 2002 was omit­ted by Sec­tion 29 with ef­fect from Fe­bru­ary 15, 2013, and Clause (i), Clause (j) and Clause (k) of Sub­sec­tion (2) of Sec­tion 73 does not al­low for freez­ing of any as­set or mak­ing it in­op­er­a­ble.

Again, this is not dis­sim­i­lar to the gov­ern­ment’s no­ti­fi­ca­tion amend­ing the Com­pa­nies (Ap­point­ment and Qual­i­fi­ca­tion of Di­rec­tors) Rules, 2014, on July 5, 2018, which sim­i­larly at­tempts to cre­ate pow­ers not con­ferred un­der “Sub-sec­tion (1), Sub-sec­tion (4), Clause ( ) of Sub-sec­tion (6) of Sec­tion 149, Sub-sec­tion (3) and (4) of Sec­tion 150, Sec­tion 151, Sub-sec­tion (5) of Sec­tion 152, Sec­tion 153, Sec­tion 154, Sec­tion 157, Sec­tion 160, Sub­sec­tion (1) of Sec­tion 168 of and Sec­tion 170 read with Sec­tion 469 of the Com­pa­nies Act, 2013”. This no­ti­fica-

tion de­clared that the Di­rec­tor Iden­ti­fi­ca­tion Num­bers would be de­ac­ti­vated if the di­rec­tors did not un­dergo a KYC (know your cus­tomer) pro­ce­dure.

Ra­jiv Gauba’s or­der is guilty of the same pre­tence. Sec­tion 69(1) re­quires a ‘rea­soned’ or­der to en­able in­ter­cep­tion, mon­i­tor­ing and de­cryp­tion. The or­der can only be in the in­ter­est of the sovereignty or in­tegrity of In­dia, the de­fence of In­dia, se­cu­rity of the state, friendly re­la­tions with for­eign states or pub­lic or­der or for prevent­ing in­cite­ment to the com­mis­sion of any cog­nis­able of­fence re­lat­ing to the above or for in­ves­ti­ga­tion of any of­fence. The or­der is ul­tra vires of the Act.

The ref­er­enc­ing of laws that no one reads, un­der­stands or checks makes it easy to cre­ate rules that have the ap­pear­ance of le­git­i­macy. This gov­ern­ment has con­sis­tently fol­lowed the modus operandi of cre­at­ing rules and no­ti­fi­ca­tions that are il­le­gal and in­valid and are pre­tend laws as they are not in ac­cor­dance with the en­abling Acts or have failed to fol­low the due process of law.

The Par­lia­men­tary Stand­ing Com­mit­tee on Subor­di­nate Leg­is­la­tion, which is nor­mally re­quired to en­sure that orders, rules and reg­u­la­tions do not ex­ceed the pur­pose sanc­tioned by the en­abling Act, ap­pears to have mys­te­ri­ously turned a blind eye to these pieces of leg­is­la­tion. Laws are in­tended to pro­tect na­tional and pub­lic in­ter­ests. Pre­tend laws ac­com­plish par­ti­san in­ter­ests.

What, then, is the pur­pose be­hind au­tho­ris­ing 10 agen­cies of the gov­ern­ment to in­ter­cept, mon­i­tor and de­crypt any in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored in any com­puter re­source?

THE ELEC­TION STRAT­EGY

BJP leader Nitin Gad­kari launched a book by the BJP psephol­o­gist G.V.L. Narasimha Rao on elec­tronic vot­ing ma­chines (EVMS) and their sus­cep­ti­bil­ity to tam­per­ing in 2010. He in­sisted that reser­va­tions about EVMS were not con­fined to the BJP and that many other po­lit­i­cal par­ties were wary of their use. The fore­word to this book, Democ­racy At Risk! Can We Trust Our Elec­tronic Vot­ing Ma­chines?, billed as a “shock­ing ex­pose of the Elec­tion Com­mis­sion’s fail­ure to as­sure the in­tegrity of In­dia’s elec­tronic vot­ing sys­tem”, is writ­ten by se­nior BJP leader L.K. Ad­vani. G.V.L. Narasimha Rao says: “It is a bla­tant lie that EVMS are tam­per-proof. I think the use of EVMS on a na­tional scale is il­le­gal.”

Dr Subra­ma­nian Swamy’s book, Elec­tronic Vot­ing Ma­chines: Un­con­sti­tu­tional and Tam­per­a­ble, also pub­lished in 2010, “brings to­gether a panel of po­lit­i­cal, con­sti­tu­tional and tech­ni­cal ex­perts and makes a pow­er­ful and sub­stan­tive case for the dis­con­tin­u­a­tion of EVMS in In­dian elec­tions if these can­not be safe­guarded to pub­lic sat­is­fac­tion”.

The BJP’S con­cerns about EVMS were trig­gered when, in May 2009, Anu­pam Saraph, at the time Chief In­for­ma­tion Of­fi­cer for the city of Pune, and Prof. M.D. Nala­pat, Vice-chair of the Ma­ni­pal Ad­vanced Re­search Group, dis­cov­ered, and re­ported to the ECI, spread­sheets with en­crypted data on the ECI’S web­site that seemed to show votes polled by a can­di­date days be­fore the votes were ac­tu­ally cast and counted.

The 2009 Lok Sabha elec­tion was held in five phases, run­ning from April 16 to May 13. Count­ing was not sup­posed to be­gin un­til all the phases were com­plete. Be­fore the vot­ing started, Saraph and Nala­pat had cre­ated a pub­lic wiki with pages for each con­stituency and can­di­date in or­der to track the elec­tions. They sourced the data from an Ex­cel spread­sheet pub­licly avail­able on the ECI web­site.

The ECI spread­sheet con­tained what you would ex­pect: can­di­date’s name, gen­der, ad­dress, party, etc. But, start­ing on May 6, the spread­sheet changed and some­thing un­ex­pected was added. From May 6 on­wards, the can­di­dates’ names were “coded”, based on their po­si­tion on the EVM, and the num­ber of “votes polled” were added, even though vot­ing had yet to take place in many con­stituen­cies and even where vot­ing had taken place but votes were yet to be counted. Even more con­found­ing, the “votes polled” num­bers were found to be ad­justed in sub­se­quent down­loads of the spread­sheet on dif­fer­ent days be­fore the re­sults were an­nounced.

The EVM pro­vides no re­ceipt to the voter. The voter has been con­di­tioned to be­lieve that when they press a but­ton a vote is cast, and that vote stays with the per­son for whom it is cast. Also, un­like in the case of money de­posits, it is not pos­si­ble to ver­ify if every vote in favour of a can­di­date comes from a gen­uine voter. The voter makes a leap of faith by ac­cept­ing the out­come of an unau­dited process. This ab­sence of trans­parency has been ex­ploited by hack­ers to ma­nip­u­late votes cap­tured by EVMS. The en­crypted “votes polled” spread­sheet dis­cov­ered sug­gested that hack­ers had found a means to trans­fer pre­de­fined re­sults to count­ing units.

Politi­cians across par­ties were shocked, as this im­plied any strat­egy of ad­just­ing the winnabil­ity of can­di­dates by tam­per­ing with in­di­vid­ual EVMS would be of no con­se­quence if some­one could con­trol the re­sults.

The then Tamil Nadu Chief Min­is­ter Jay­alalithaa al­leged in 2009 that by can­vass­ing the count­ing of­fi­cials, vot­ing ma­chines were ma­nip­u­lated by for­mer Fi­nance Min­is­ter P. Chi­dambaram to re­verse the votes cast for her can­di­date. The al­le­ga­tions about EVM tam­per­ing have spread across par­ties as what used to be a covert strat­egy has be­come in­creas­ingly overt and di­rect. Like black money, tam­per­ing with elec­tron­ics used for cap­tur­ing votes is spo­ken of as the cost of do­ing busi­ness.

This De­cem­ber, three per­sons, re­port­edly em­ploy­ees of Re­liance Jio, were nabbed by Congress work­ers from a stron­groom with EVMS in Ch­hat­tis­garh’s Bas­tar. The Congress has also al­leged EVM tam­per­ing in Mad­hya Pradesh, Te­lan­gana, Ch­hat­tis­garh and other States.

Re­spond­ing to Subra­ma­nian Swamy’s pe­ti­tion in Oc­to­ber 2013, Jus­tice P. Satha­si­vam or­dered for Voter Ver­i­fied Pa­per Trail (Vvpat)-en­abled new EVMS. The idea of VVPAT is to al­low a pa­per bal­lot of the vote cast to serve as a means of ver­i­fy­ing the votes cap­tured by the EVM when­ever doubts are raised about an EVM.

The Min­istry of Law and Jus­tice, after con­sult­ing the

ECI, ex­er­cised its pow­ers un­der Sec­tion 169 of the Rep­re­sen­ta­tion of the Peo­ple Act and amended the Con­duct of Elec­tions Rules to in­clude VVPAT. The then United Pro­gres­sive Al­liance (UPA) gov­ern­ment al­legedly de­layed the process of switch­ing to VVPAT and slowed fund­ing to the ECI to buy new pa­per-slip-pro­duc­ing EVMS. Prof. Alex Hal­der­man from the Uni­ver­sity of Michi­gan and his col­leagues, in­clud­ing Hari Prasad from Net In­dia (Pvt.) Ltd in Hy­der­abad, with guid­ance and ad­vice from G.V.L. Narasimha Rao, have demon­strated elec­tronic at­tacks that can steal votes for the life­time of the ma­chines. In a bid to re­place Upa-era EVMS, a Cab­i­net meet­ing chaired by Prime Min­is­ter Naren­dra Modi on July 20, 2016, took the ma­jor de­ci­sion to dump the EVMS pur­chased from 2000 to 2005. The new EVMS are ex­pected to be VVPAT ma­chines.

While VVPAT ma­chines are not with­out their own se­cu­rity con­cerns, they could po­ten­tially usher in trans­parency and clear the air if they en­sure that pa­per bal­lots are counted. How­ever, the de­ci­sion to count pa­per bal­lots in re­sponse to an ap­pli­ca­tion made un­der Rule 56(D)(2) is at the dis­cre­tion of the re­turn­ing of­fi­cer. This means that how many pa­per bal­lots are counted, if at all, is not au­to­matic. Manub­hai Chavada of the Gu­jarat Jan Chetana Party had chal­lenged Rule 56(D)(2) as “ex-fa­cie il­le­gal, ar­bi­trary and an in­frac­tion of the fun­da­men­tal rights of the cit­i­zens”.

Clearly, in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored in any com­puter re­source plays an im­por­tant, if not crit­i­cal, role in the out­come of elec­tions.

PUR­POSE OF THE OR­DER

The acts of gov­ern­ments are rarely with­out a pur­pose. The pur­poses of gov­ern­ments, how­ever, are rarely those that they make ex­plicit. The pur­pose of the act is not what it says, but what it does. The mon­i­tor­ing or­der does not state whether its pur­pose, as re­quired by law, is to ad­dress any threat to the sovereignty or in­tegrity of In­dia; to en­sure the de­fence of In­dia, the se­cu­rity of the state and friendly re­la­tions with for­eign states; or to cre­ate pub­lic or­der or pre­vent in­cite­ment to the com­mis­sion of any cog­nis­able of­fence. Does this or­der do any­thing to serve these pur­poses?

What does the no­ti­fi­ca­tion en­abling 10 in­sti­tu­tions to in­ter­cept, mon­i­tor and de­crypt do? These in­sti­tu­tions are gov­erned by in­de­pen­dent Acts and have di­verse sets of pow­ers. If these in­sti­tu­tions were to be­gin mon­i­tor­ing, in­ter­cep­tion and de­cryp­tion of in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored on all com­put­ers, they will be crip­pled.

Most of the in­sti­tu­tions listed nei­ther have the man­date, nor the ma­chin­ery, to un­der­take the task of mon­i­tor­ing, in­ter­cep­tion or de­cryp­tion. They are part of in­de­pen­dent Min­istries and re­port to dif­fer­ent Min­is­ters. The one com­mon thing these agen­cies will do, as does most gov­ern­ment ac­tion, is re­spond to in­struc­tions to mon­i­tor, in­ter­cept and de­crypt spe­cific tar­gets.

Clearly, pre­tend laws and dik­tats are an en­abler of par­ti­san ac­tions. The mon­i­tor­ing or­der is no ex­cep­tion.

With just about three months left for the Lok Sabha elec­tion, does any­one have to spell out par­ti­san ac­tions that ben­e­fit from mon­i­tor­ing, in­ter­cept­ing and de­crypt­ing elec­tronic com­mu­ni­ca­tions?

The an­swer lies in look­ing at the tar­get of the de­mon­eti­sa­tion ex­er­cise. Like black money fi­nanc­ing the up­com­ing elec­tions was the covert tar­get of de­mon­eti­sa­tion, what will be the tar­get of the mon­i­tor­ing or­der? Com­put­ers, mo­biles, com­puter net­works and, of course, EVMS are the com­puter re­sources that are now be­ing pre­pared and de­ployed for elec­tions.

Like black money that funds can­di­dates and con­trols elec­tions, the in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored in these com­puter re­sources de­ployed by can­di­dates al­ters their winnabil­ity and con­se­quently the out­comes of elec­tions. The com­puter re­sources used in elec­tions will be the ob­vi­ous tar­gets for mon­i­tor­ing, in­ter­cep­tion and de­cryp­tion.

If the na­tional in­ter­est and pro­tect­ing the sovereignty of the peo­ple of In­dia were the pur­pose, would not an in­de­pen­dent body like the ECI, and not gov­ern­ment­con­trolled bod­ies, be em­pow­ered to mon­i­tor, tar­get and de­crypt? Does the 2009 elec­tion his­tory not re­quire that the ECI be em­pow­ered to mon­i­tor, tar­get and de­crypt? Or that un­less they are con­ducted with­out EVMS, the 2019 Lok Sabha elec­tion may just favour the com­puter re­sources of par­ti­san in­ter­ests? Is it not ev­i­dent that this or­der is to the 2019 elec­tion what de­mon­eti­sa­tion was to the 2017 elec­tions?

The an­swer to the real pur­pose of this mad­ness lies in who will be the ben­e­fi­cia­ries of this or­der. Dr Anu­pam Saraph is a Fu­ture De­signer, Pro­fes­sor of Sys­tems and De­ci­sion Sciences and a renowned ex­pert in gov­er­nance of com­plex sys­tems. He can be reached on Twit­ter at @anu­pam­saraph.

EVM AND VVPAT ma­chines be­ing checked be­fore be­ing sent to polling cen­tres dur­ing the Mad­hya Pradesh As­sem­bly elec­tions, in Bhopal on Novem­ber 27.

Source: Data files ac­cessed on re­spec­tive dates from http://eci.nic.in/can­di­date­info/frm­can­di­date.aspx; Data files archived at: http://www.scribd.com/col­lec­tions/2319591/can­di­date-info

CUS­TOMERS wait­ing out­side a bank in Chen­nai to ex­change their old 500- and 1,000-ru­pee notes, on Novem­ber 11, 2016, fol­low­ing the gov­ern­ment’s de­mon­eti­sa­tion de­ci­sion.

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