Anja Ko­vacs

Will 2018 usher in a world in which the pri­vate cit­i­zen can flour­ish or will we be bur­dened by an ecosys­tem that will com­pro­mise this free­dom?

India Today - - INSIDE - By ANJA KO­VACS

HEN IN AU­GUST LAST YEAR THE SUPREME COURT ruled that—con­trary to what the govern­ment had held in court— In­di­ans do in­deed have a fun­da­men­tal right to pri­vacy, pro­tected by the Con­sti­tu­tion, a new dawn seemed to have ar­rived. For years now, ac­tivists had been spar­ring with UIDAI (Unique Iden­ti­fi­ca­tion Author­ity of In­dia)of­fi­cials and oth­ers in the govern­ment about whether or not In­dia’s Aad­haar data­base posed a threat to the pri­vacy and se­cu­rity of the state as well as its cit­i­zens. Much of the govern­ment’s ap­proach to those de­bates seemed to hinge on treat­ing pri­vacy as a sec­ondary con­cern: one subservien­t to other needs, such as those of de­vel­op­ment. The Supreme Court ef­fec­tively de­mol­ished this view in the Put­taswamy case, as it re­con­firmed the in­her­ent im­por­tance of pri­vacy for the con­sti­tu­tional val­ues of lib­erty and dig­nity, as well as for de­vel­op­ment.

Six months later, the con­crete im­pact of the judg­ment is still awaited, as re­ports of Aad­haar data breaches and unau­tho­rised use of Aad­haar num­bers, such as for fraud­u­lent with­drawals from bank ac­counts, con­tinue. Only later this month will the Supreme Court again take up the nu­mer­ous chal­lenges to the Aad­haar pro­gramme that have been pend­ing be­fore it, in what will pre­sum­ably be the fi­nal hear­ings. But how much re­lief th­ese will bring re­mains un­clear, and a pos­i­tive out­come is by no means a given.

For one thing, in other cases that touch on is­sues of pri­vacy, the Supreme Court has been sur­pris­ingly dis­re­gard­ing of the main thrust of the Put­taswamy judg­ment. In par­tic­u­lar, the judg­ment high­lights au­ton­omy and de­ci­sion-mak­ing as in­te­gral to the right to pri­vacy, en­abling ‘in­di­vid­u­als to pre­serve their be­liefs, thoughts, ex­pres­sions, ideas, ide­olo­gies, pref­er­ences and choices against so­ci­etal de­mands of ho­mo­gene­ity’. Laud­able words, yet they seemed to have been all but for­got­ten in, for ex­am­ple, the case of Hadiya, for­merly named Akhila, who con­verted from Hin­duism to Is­lam and mar­ried a Mus­lim man— out of her own choice, as she has con­sis­tently main­tained.

When Hadiya’s fa­ther filed a com­plaint al­leg­ing that her con­ver­sion and mar­riage had taken place un­der force from the Is­lamic State, the Ker­ala High Court ended up declar­ing the mar­riage null and void ‘on the grounds that bride’s par­ents were “not present or given con­sent” for the mar­riage’. The Supreme Court has not re­versed the an­nul­ment of the mar­riage so far. In­stead, it or­dered, in Au­gust 2017, a probe by the Na­tional In­ves­ti­ga­tion Agency to in­ves­ti­gate whether the mar­riage was a re­sult of a larger scheme of ‘love ji­had’. It re­port­edly will take fur­ther ac­tion only once the re­sults of that in­ves­ti­ga­tion are known.

The Put­taswamy judg­ment recog­nised that rea­son­able re­stric­tions would have to ap­ply to the right to pri­vacy. But as Hadiya’s case—and its dis­re­gard for an adult woman’s right to ‘pre­serve her pref­er­ences and choices against so­ci­ety’s ex­pec­ta­tions’ in in­ti­mate mat­ters—il­lus­trates, when the Supreme Court as­sem­bles for the fi­nal hear­ings in the Aad­haar case later this month, it re­mains to be seen to what ex­tent it will priv­i­lege au­ton­omy and de­ci­sion-mak­ing of cit­i­zens over the State’s needs and in­ter­ests in prac­tice.

More­over, when rul­ing on Hadiya’s per­sonal life, the Ker­ala High Court ex­er­cised ‘parens pa­triae ju­ris­dic­tion’, which refers to the power of the State to pro­vide pro­tec­tion to those who are un­able to care for them­selves. Gen­er­ally, this is drawn on in cases in­volv­ing mi­nors or peo­ple with se­vere men­tal dis­abil­i­ties. By tak­ing up this man­tle to make de­ci­sions for a per­fectly healthy


24-year-old—de­ci­sions, more­over, that go di­rectly against that very 24-year-old’s will—the court ef­fec­tively set it­self up as the ul­ti­mate pa­tri­arch.

This pro­vides fur­ther food for thought as to how crit­i­cal the Supreme Court will be ready to be of the govern­ment’s own at­tempt to take up the po­si­tion of the benev­o­lent pa­tri­arch in the con­text of the Aad­haar pro­gramme. In the way it is set up now, the Aad­haar scheme ef­fec­tively re­quires cit­i­zens to give up au­ton­omy and con­trol over their data to put their com­plete faith in the State and its de­ci­sion-mak­ing.

The govern­ment’s ap­proach was per­haps best ex­em­pli­fied by the then At­tor­ney Gen­eral Mukul Ro­hatgi’s claim, in a hear­ing of the Aad­haar case in the Supreme Court last May, that the In­di­ans’ right to their body is not ab­so­lute. What was re­mark­able was not so much Ro­hatgi’s claim as such. Af­ter all, women, as well as many other non-dom­i­nant groups, are con­tin­u­ously con­fronted with re­stric­tions on their bod­ies that are not nec­es­sar­ily of their own choice—from whether or not they wear cer­tain cloth­ing to whether or not they bear a preg­nancy to full term (and whether to bear that child for some­one else or not).

More­over, the con­cern with women’s bod­ies has also en­sured that the pri­vacy accorded to women, too, is fre­quently re­stric­tive: even if pri­vacy as bod­ily in­tegrity gets recog­ni­tion, where women are con­cerned this is of­ten driven by no­tions of moral­ity and con­cerns about fam­ily rep­u­ta­tion, lead­ing to un­der­stand­ings of pri­vacy that priv­i­lege ideals of cov­er­ing up, of with­draw­ing into the pri­vate sphere. In fact, such read­ings are so com­mon that even the ex­am­ples from an­cient In­dian re­li­gious texts that Jus­tice Sharad Arvind Bobde cited in his opin­ion in the Put­taswamy case take this form. Thus, in prac­tice, both pri­vacy and bod­ily in­tegrity have never been fully avail­able to all In­di­ans.

What was re­mark­able about Ro­hatgi’s claims, then, is that the State, in its de­fences of the Aad­haar scheme, sought to proac­tively en­dorse and fur­ther gen­er­alise this pre­car­i­ous state, hith­erto par­tic­u­larly poignant for its more vul­ner­a­ble cit­i­zens, rather than en­hanc­ing cit­i­zens’ au­ton­omy, con­trol as well as bod­ily in­tegrity. The govern­ment, too, wants to take up the man­tle of the pa­tri­arch, in­clud­ing in the dig­i­tal age.

To be fair, it is not only the In­dian govern­ment that is try­ing to get cit­i­zens to ac­cept a state in which they put their faith in the hands of cen­tralised au­thor­i­ties. Large swathes of In­ter­net-en­abled in­dus­try, whether they are es­tab­lished global gi­ants or In­dian stars or start-ups, too, would like us to hand over our au­ton­omy and de­ci­sion­mak­ing and con­trol as much as pos­si­ble to them. It is true that the con­se­quences of pri­vate busi­nesses do­ing so are not quite the same—af­ter all, Face­book or Flip­kart do not have the same power over your life as your govern­ment does. But the un­der­ly­ing par­a­digm driv­ing their ac­tions is very sim­i­lar—and, as the dis­cus­sions around dis­in­for­ma­tion and on­line ma­nip­u­la­tion ex­em­plify, for the world’s demo­cratic coun­tries, in­creas­ingly is a threat.

In ad­di­tion, and im­por­tantly, the ex­tent and shape of this threat, and of the pro­tec­tions needed to en­sure that it can be con­tained, is fre­quently not yet fully un­der­stood. Thus, when it comes to the dig­i­tal sphere, the Put­taswamy judg­ment has an im­por­tant short­com­ing in that it con­tin­ues to see pri­vacy pro­tec­tions re­lat­ing to cy­berspace as be­ing a mat­ter mostly of ‘in­for­ma­tion pri­vacy’ and of ‘data pro­tec­tion’ as con­ven­tion­ally un­der­stood. But that may no longer be suf­fi­cient, as the line we draw be­tween our body and in­for­ma­tion about our body has slowly started to dis­ap­pear.

Take, for ex­am­ple, the re­ports of star­va­tion deaths fol­low­ing the de­nial of ra­tions to peo­ple be­cause of Aad­haar fin­ger­print au­then­ti­ca­tion fail­ures. In th­ese in­stances, the fail­ure to match fin­ger­prints—the phys­i­cal body—to the set in the Aad­haar data­base—the data body—lit­er­ally has had life-and-death con­se­quences. Merely fo­cus­ing, in the con­text of Aad­haar, on data pro­tec­tion as con­ven­tion­ally un­der­stood will not do any­thing to pre­vent such se­vere harms for bod­ily in­tegrity from oc­cur­ring again in the fu­ture.

This, then, is why the out­come of the Aad­haar case is so im­por­tant. When the Supreme Court as­sem­bles for the fi­nal hear­ings in that case later this month, it will not merely be de­ter­min­ing what can be con­sid­ered some of the rea­son­able re­stric­tions on the right to pri­vacy, and what are their lim­its: it will ef­fec­tively be de­ter­min­ing what shape our world and fu­ture in the dig­i­tal age will take. Will it be a world in which cit­i­zens’ au­ton­omy, de­ci­sion-mak­ing ca­pac­ity and bod­ily in­tegrity are fur­ther fos­tered or will we be sad­dled with ar­chi­tec­tures and ecosys­tems that fun­da­men­tally and con­tin­u­ously un­der­mine th­ese? 2018 will bring an im­por­tant part of the an­swer.

Dr Anja Ko­vacs di­rects the In­ter­net Democ­racy Project in Delhi


Illustrati­on by TANMOY CHAKRABORT­Y

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