India’s First Mass Surveillance, Mass Spying and Unending Census Case: Why No to Bio-political Tattooing through Aadhaar Number Online Database? Part 4
Dr Gopal Krishna 21 June 2024
(When INDI alliance people oppose EVM, I am not seeing it as just an election, I believe that these people are people with the thinking of the last century at heart, they neither understand the importance of technology nor are they ready to accept technology. It was seen only in EVMs, not like it was shown in UPI when we said that the people of India will do digital transactions. Today India has become famous in the world of FinTech. Not ready to accept, Aadhaar has become the identity of the country today. I am seeing that many countries are telling me that we have to move ahead with the Aadhaar system, how can you help. They have created problems by going to the Supreme Court again and again to stop that Aadhaar. Basically, we have seen that INDI Alliance is being anti-progress, anti-modernity and anti-technology.)
- Narendra Modi in his address to NDA Parliamentary Meet on 7 June 2024
 
“If you think IT is the solution to your problem, then you don’t understand IT, and you don’t understand your problem either.”
- Roger Needham, a noted computer scientist 
 
“If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.”
- Carl Schmitt, the Nazi philosopher in his essay “On Dictatorship” (1921)
 
As a caretaker prime minister, Narendra Modi referred to the controversial Aadhaar number online database case, which is pending before the seven-judge Constitution bench of the Supreme Court, in his address to the NDA parliamentary meet on 7 June 2024, disregarding the alarming findings of the audit report of the comptroller auditor general (CAG) of India regarding the functioning of the unique identification authority of India (UIDAI). By doing so, he attempted to influence the outcome of a case which is sub-judice. His silence about the action taken report on CAG’s audit report, which has not been tabled in the Parliament as yet, is deafening. His reference to the Aadhaar number online database case must be seen in the context of his government’s reply in Parliament on the subject of "Action Taken Report on CAG's audit on the functioning of UIDAI". The ministry of electronics and information technology had informed the Lok Sabha on 22 July 2022 that CAG’s audit report has been accepted and uploaded on http://apms.nic.in. The fact is that it has not been uploaded so far. Against such a backdrop, the Constitution bench is all set to decide the constitutionality of the Aadhaar Act. This law paves the way for indiscriminate surveillance of all the present and future Indians in collaboration with foreign firms and governments. 
 
A Constitution bench headed by the 50th chief justice of India (CJI), Dr DY Chandrachud has issued directions for the pre-hearing steps in various matters before the seven-judge Constitution bench and the nine-judge Constitution bench including matters related to the enactment of the Aadhaar Act as Money Bill. In its 12 October 2023 order, it instructed that the compilation of documents, pleadings, and precedents must be filed in three weeks along with written submissions.
 
It is germane to recall that the Supreme Court’s decision dated 13 November 2019 had referred the illegitimate enactment of the Aadhaar Act as ‘Money Bill’ for consideration by a seven-judge Constitution bench to hear the Roger Mathew vs South India Bank Ltd case as a consequence of the verdict by the 46th CJI led five-judge constitution bench. This 46th CJI-led bench detected an unprecedented blunder in the majority verdict dated 26 September 2018 by 45th CJI, Dipak Misra justices AK Sikri, AM Khanwilkar and Ashok Bhushan regarding Money Bill and UID/ Aadhaar being a 12-digit number, not a 'card'. As part of the blunder, justice (now retired) AK Sikri tortured the word "resident" in the Aadhaar Act/ Money Bill verdict. As the author of the majority order, he compelled the 'resident' word to confess that it has two names; its other name is 'citizen'. He empowered himself with such unlimited power he would have the world believe that the "resident" word can be tortured to confess that it is the same as 'citizen'. But such third-degree torture of words has failed to get its meaning changed in the dictionary. The seven-judge constitution bench is likely to save every 'resident' of India from automatically becoming a 'citizen; without their consent.
 
Notably, every person including the public institutions, parties, editors, donors, advertisers and judicial officers who refer to the 12-digit unique identification (UID) number branded as 'Aadhaar' as a 'card', betray their colossal ignorance about the world’s biggest data transfer project. This is a unique number that can be authenticated digitally, not a 'card'. 
 
The UIDAI is responsible for the processes of enrolment and authentication and 'other functions' assigned to it under the planning commission’s notification dated 28 January 2009 and subsequently the Aadhaar Act, 2016. These 'other functions' include ownership of 'central identities data repository' (CIDR), a centralised database in one or more locations containing all Aadhaar numbers issued to Aadhaar number-holders along with the corresponding "demographic information and biometric information of such individuals and other information". The 'other information' includes metadata which is under the control of UIDAI as part of its 'other functions'.
 
After the government of India, state governments, academic and media institutions, the high courts and the promoters of CIDR of Aadhaar numbers were proven wrong by the nine-judge bench of the Supreme Court with regard to their flawed claim that right to privacy was not a fundamental right, a five-judge bench led by the 45th CJI was set up. Justice Sikri (on behalf of the 45th CJI, himself and justice AM Khanwilkar), justice Dr Chandrachud and justice Ashok Bhushan pronounced three separate judgments as part of the five-judge bench. Justice Bhushan agreed with the justice Sikri-authored order on the enactment of Aadhaar Act as Money Bill. Justice Dr Chandrachud disagreed with them and termed the enactment of Aadhaar Act as Money Bill for Aadhaar number online database, as a fraud on the Constitution of India.
 
Database State, a report from the United Kingdom, revealed how the old maxim, 'If you have nothing to hide, you have nothing to fear' has been given a very public burial. The report states, 'In October 2007, Her Majesty's Revenue and Customs lost two discs containing a copy of the entire child benefit database. Suddenly issues of privacy and data security were on the front page of most newspapers and leading the TV news bulletins. The millions of people affected by this data loss, who may have thought they had nothing to hide, were shown that they do have much to fear from the failures of the database state.' Likewise biometric databasing is a giant leap towards totalitarian control by data mining companies. It turns citizens into subjects and suspected criminals who can be kept under leash by control over sensitive personal data. Through convergence, each data can be transformed into a sensitive data. 
 
If consent for it is granted by uninformed citizens then citizens become a number on a computer of a State actor or non-State actor engaged in so-called ‘welfare’ services. This automatically creates a file on each citizen. In an effort to appear harmless, it is claimed that the file would contain very little information but it has come to light that it is being linked to ‘preventing terrorism’, ‘stopping crime’ or ‘protecting children’, etc. This, in turn, creates logic for profiling and tracking citizens based on their financial transactions, mobility, religion, caste, region, orientation, health records, driving record, etc.
 
Right to privacy and freedom belong to citizens as a natural fundamental right. It is not granted by government. A government is the servant of the citizens, not its master. Governments are supposed to seek permission to limit these rights in certain circumstances. If the State and non-State actors choose to engage in indiscriminate surveillance of citizens or to impose a system of compulsory identification or to open a file on each citizen or to criminalise citizens who refuse to comply, it signals a breakdown of a democratic government. This breakdown is being naturalised and normalised with the connivance of all the ruling parties at the behest of their donors. 
 
When political candidates stood up for elections and sought votes did they seek the mandate to put the voters under unlimited and endless surveillance?   
 
The 'database state' is the tendency of the State and non-State actors to use computers and biometrics to manage society by putting people under watch by mouthing benevolent schemes and excuses. 
 
Databasing people is akin to modern-day enslavement by those who are wedded to the faith in property-based democracy. Slavery, by whatever name, is wrong.   
 
It is apparent that non-state actors have prevailed over state agencies to adopt the 'transformational government' initiative. It might sound good unless one comprehends that what is being transformed is not government but it is power over citizens under the dictates of non-state actors.
 
This was attempted by the Tony Blair-led Labour Party government which misled the world and its own citizens about Iraq having nuclear, chemical, and biological weapons programmes although he knew that it was not true. Not surprisingly, the UK citizens could see through the fraudulent misrepresentation and voted for the coalition of David Cameron-Nick Clegg. As the UK's deputy prime minister, Mr Clegg said, “This government will end the culture of spying on its citizens. It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop. So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports,” in the British House of Commons. Mr Clegg added, “We won't hold your internet and email records when there is just no reason to do so. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question. Schools will not take children's fingerprints without even asking their parent's consent. This will be a government that is proud when British citizens stand up against illegitimate advances of the state.” But coalition governments in India of all shades choose to follow the discredited path of Tony Blair and his UK's Identity Cards Act, 2006. Both have been abandoned.  
 
Given the fact that ‘radical restructuring of the security architecture at the national level’ is underway, Nandan Nilekani, the then-chairman of the unique identification authority (UIDAI) was asked about endless tracking of citizens by converging different databases like the national population register (NPR), national intelligence grid (NATGRID), national technical research organisation (NTRO), crime and criminal tracking network system (CCTNS), multi-agency centre (MAC), central monitoring system (CMS), socio economic and caste census (SECC), national investigation agency (NIA), national cyber coordination centre (NCCC), national critical information infrastructure protection centre (NCIIPC), telecom security directorate, public information infrastructure and innovations and UID/Aadhaar number online database. He responded saying, “I don't want to talk about that.” His silence and the silence of his collaborators is deafening. But intelligence agencies, be it UIDAI or any of its incarnations, are known for adopting such stances.
 
Under NATGRID, 21 sets of databases are being networked to achieve quick, seamless and secure access to desired information for intelligence/ enforcement agencies. It is quite clear that the biometric databases under creation are meant for such agencies in India and elsewhere. The rules made under the Information Technology Act, 2000 in April 2011 provide access to any data held by any "body corporate" in India. This does not apply to body corporate of foreign origin.
 
In such a backdrop, there is a compelling logic for the election commission of India to rescind the dangerous proposal of the Union ministry of home affairs “to merge the election ID cards with UID”. Such an exercise would mean rewriting and engineering the electoral ecosystem with the unconstitutional and illegal use of biometric technology in a context where corporate electoral finance remains a source of corruption and black money, despite the Supreme Court’s judgement against the electoral bond because corporate electoral finance enjoys bipartisan support. Even organisations like the Association for Democratic Reforms appear tight-lipped about it. This is paving the way for linking of electronic-biometric UID/ Aadhaar number, voter ID number and the UID number of electronic voting machines (EVMs) which is not as innocent and as politically neutral as it has been made out to be. It is noteworthy that all EVMs have a UID number as well. It results into total electoral surveillance. 
 
Surveillance is a “shameful act” of supervising and imposing discipline on a subject through a hierarchised system of policing. Michel Foucault, the author of Discipline and Punish: The Birth of the Prison, examined the systems of social power through the lens of the 18th century philosopher Jeremy Bentham, the originator of the now iconic panopticon. This panopticon was/ is a design for a prison in which the inmate's cells are arranged in a circular fashion around a central guard tower. The architectural configuration allows for a single guard's gaze to view all inmates, but prevents those inmates from knowing exactly when they are being watched. It was aptly observed, “The major effect of the panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.” 
 
This design is a “generalised model of functioning and a way of defining power relations in terms of the everyday lives of men.” In initiatives like biometric identification, the subject, the citizen, is seen but he/ she does not see. He/ she is the object of information, but never a subject in communication. Foucault's panoptic model is a quite valid biometric database because these databases are meant to ensure real time tracking and profiling of citizens and turns them into subjects and in a slave-like situation. The tumultuous colonial history of the technologies associated with surveillance reveals that the origins of surveillance happened during the free trade of slaves. 
 
Biometric identification treats Indian citizens worse than slaves. It is an act of identification prior to any act of omission and commission. It normalises the deepening of everyday surveillance. It is similar to what was done under Britain's Habitual Criminals Act of 1869. It required police to keep an “alphabetical registry” and cross-referenced “distinctive marks registry”. The first held names, and the latter descriptions of scars, tattoos, birthmarks, balding, pockmarks, and other distinguishing features. This registry of marks was systematically disaggregated into nine general categories pertaining to regions of the body. Therefore, there were files for the head and face; throat and neck; chest; belly and groin; back and loins; arms; hands and fingers; thighs and legs; feet and ankles. 
 
The convergence of biometric information with financial and personal data such as residence, employment, and medical history heralds the beginning of the demolition of one of the most important firewalls in the structure of privacy. Such convergence of databases poses a threat to minorities, political opponents and dissidents of all shades as they can be targeted in a situation where government is led by any Nazi party-like political formations. 
 
The late Roger Needham, a British computer scientist, aptly said, “If you think IT is the solution to your problem, then you don’t understand IT, and you don’t understand your problem either.” It sounds like he was addressing the gullible citizens, political class and docile journalists. 
 
Safeguarding of citizens' privacy and their civil liberties, in the face of an unprecedented onslaught from a collection of biometric data and other related surveillance measures that are being bulldozed by unregulated and ungovernable technology companies by overawing the governments through its marketing blitzkrieg, is emerging as a fight between David and Goliath. Database state cannot be the aim of any democratically healthy government. It is an exercise in outsourcing of governmentality to admittedly undemocratic corporate entities by making biometric identification a pre-condition for citizens to have any right. 
 
In effect, the right to have rights is being made dependent on being electronically and biometrically profiled and not on constitutional guarantees and the Universal Declaration of Human Rights. This is a regressive step that takes citizens to pre-Magna Carta days (1215 AD) or even earlier to the days prior to the declaration of Cyrus, the Persian King (539 BC) that willed freedom for slaves.
 
Giorgio Agamben, the noted octogenarian philosopher and the author of State of Exception (2005), wrote: “The West's political paradigm was no longer the city state, but the concentration camp, and that we had passed from Athens to Auschwitz. It was obviously a philosophical thesis, and not historic recital, because one could not confuse phenomena that it is proper, on the contrary, to distinguish. I would have liked to suggest that tattooing at Auschwitz undoubtedly seemed the most normal and economic way to regulate the enrolment and registration of deported persons into concentration camps. The bio-political tattooing the United States imposes now to enter its territory could well be the precursor to what we will be asked to accept later as the normal identity registration of a good citizen in the state's gears and mechanisms. That's why we must oppose it.” 
 
The electronic-biometric identification and profiling-based social control experiment, which is unfolding in India, is a result of lobbying by firms from the US and its allies from the 32-member North Atlantic Treaty Organization (NATO). It is aimed at total control of the human population by transcending the rule of law in the name of the “public good”. The firms and ideologies which were involved in Nazi Germany are driving these efforts as well. Admittedly, Aadhaar number online database is aimed at bio-political tattooing which is fraught with genocidal consequences. 
 
Shouldn’t the citizenry resist the negation of the democratic principle of limited government, limited by the Constitution of India and constitutionalism? Will the Supreme Court’s seven-judge constitution bench be prompt in defending citizens’ natural fundamental rights from endless unlimited surveillance using bio-political tattooing before it becomes too late?      
 
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(The author is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism. He has appeared before Supreme Court’s committees, parliamentary committees of Europe, Germany and India and UN agencies on the subject of national and international legislation. He is the co-founder of East India Research Council (EIRC). He is convener of Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar/NPR and DNA profiling through criminal identification procedure since 2010. He had appeared before the parliamentary standing committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar. He is also the editor of www.toxicswatch.org. He is an ex-Fellow, Berlin based International Research Group on Authoritarianism and Counter Strategies (IRGAC).) 
Comments
mediavigil
1 month ago
Faith in a “judicial audit” is eroded when even before the constitutionality of Aadhaar Act is decided by a 7-judge constitution bench almost all the 32 judges of Supreme Court & 766 judges of High Courts get coerced to join Aadhaar Number Online Biometric Database System.
ppindia18
1 month ago
I am against Aadhar being used to control peoples life, but this article seems to be a jumbled mess written by a drunk or delusional author, published without oversight by editor.
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