Aadhaar case: An imagined appeal before the Supreme Court as it decides how we live, laugh and die

May it please the Court,

I appear on behalf of the Citizens for the Protection of Privacy Rights, who have been allowed by this Honourable Court to intervene as petitioners. As directed by the court, we have submitted detailed written arguments. I am grateful to Your Lordships for giving us the opportunity to make this very brief oral presentation.

The Supreme Court, in numerous cases, has already interpreted, defined and expanded the understanding of right to life and personal liberty. It is not my intention to go over this subject again. Moreover, the previous benches that heard cases of this nature have made it amply clear that if there is a right to privacy, it takes off from the fundamental right to life, liberty, freedom of speech and expression, etc.

In the 1996 case of People’s Union for Civil Liberties, it was held that right to privacy is a part of the right to life and personal liberty enshrined under Article 21 of the Constitution. Once the facts in a given case constitute a right to privacy, Article 21 is attracted. The said right cannot be curtailed except according to procedure established by law.

The task before this Honourable bench would be simple if it merely had to read through these previous observations and arrive at a similar conclusion.

However, the petitioners in this case want something more – that the right to privacy should be declared as a fundamental right and that the government should not make any law that violates it. And, if this were to happen, the petitioners argue that the constitutional right to directly approach the Supreme Court or the high courts would apply.

Changed circumstances

So what changed circumstances have prompted the petitioners to approach this Honourable Court? What apprehensions do citizens have about “weapons” in the state’s armoury, such as collection of personal biometric data, DNA profiling, round-the-clock CCTC surveillance, restrictions on encryption software, mobile phone tapping, etc.?

Your Lordships, the very ground beneath our feet has moved. To describe it as a tectonic shift would be an understatement. This shift has happened in three different areas and has changed the discourse on privacy and related rights.

1. The concept of privacy and understanding of what constitutes violation of privacy rights.

2. The highly sophisticated and secret technologies available with government and corporations, enabling them to violate these rights with impunity.

3. The adoption of the “national security” state, a new global cult emanating from the West.

To understand these three aspects let us take a step back and examine the nature of the allegations of violation of privacy that were at the core of the previous cases that came up before this court in previous years.

Apart from the 1996 case of PUCL of Union of India, these include 1962’s Kharak Singh vs UP Police, Govind vs State of MP in 1975, and R Rajagopal vs State of Tamil Nadu in 1994, among others.

These cases broadly dealt with physical surveillance of alleged or convicted criminals and physical wiretapping of telephones. Earlier, surveillance meant constant observation of a person’s house by a police officer, who was physically present but hidden from sight. Wiretapping meant an actual physical wiretap at a telephone exchange or telephone pole, connected to a tape recorder.

But what is the state of surveillance today?

Every year, on World Day Against Cyber Censorship, a group called Reporters Without Borders publishes the “Enemies of the Internet” Report, which focuses on government units and agencies that implement online censorship and surveillance.

The “Enemies of the Internet” Report for 2014 contains the following passage:

“The extensive Indian surveillance system has been expanded since the Mumbai attacks in 2008. The Central Monitoring System, developed by the Centre for Development of Telematics, allows the government direct, unlimited and real-time access to a wide variety of electronic communications without relying on internet service providers…”

Below is a very short list of the surveillance apparatus at the disposal of the Indian state. It has been compiled relying solely on published reports within the country and documents in the public domain.

Central Monitoring System: A covert, surveillance-related project run by the Centre for Development of Telematics. An India Today article from 2014 reads, “Forget NSA, India’s Centre for Development of Telematics is one of the top 3 worst online spies”.

DRDO NETRA: Another mass surveillance project, it is developed by the Centre for Artificial Intelligence and Robotics laboratory under the Defence Research and Development Organisation. The system can detect within seconds selective words such as bomb, blast, attack or kill from emails, instant messages, status updates and tweets. The system will also be capable of gauging suspicious voice traffic on Skype and Google Talk.

Lawful Intercept and Monitoring: These systems are used by the government to intercept records of voice, SMSes, GPRS data, details of a subscriber’s application and recharge history and call detail records. It can also monitor internet traffic, emails, web browsing, Skype and any other internet activity of Indian users.

The Lawful Intercept and Monitoring system to monitor internet traffic is deployed by the government at the international gateways of some large internet service providers. These surveillance systems are under complete control of the government, and their functioning is secretive and unknown to the ISPs.

As will be clear to Your Lordships, the main themes underlying the various mass surveillance projects of the government are total secrecy and a complete disregard for the privacy of the citizens. These projects are certainly a far cry from plainclothes policemen leaning on a lamp post opposite your front door and pretending to read a newspaper.

On October 8, the Central Bureau of Investigation submitted an affidavit to the Supreme Court in connection with a cyber porn case. It said: “It is imperative, in the interest of ensuring speedy detection and prosecution of offenders, that CBI officers of the rank of superintendent of police … are posted with Google, YouTube, Facebook, WhatsApp, Hike, Bing (Microsoft), Yahoo and other popular sites.”

The investigation agency also cited the example of the US, where Federal Bureau of Investigation officers are posted with large internet firms and ISPs.

Your Lordships, the source of our security agencies’ inspiration is now abundantly clear. The people depriving us of our right to privacy have just one argument, originally put forth by former Google CEO Eric Schmidt: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”

Others have put it even more crudely: “If you have nothing to hide, you have nothing to fear.”

The most resounding response to this argument was given by NSA whistleblower Edward Snowden. “Arguing that you don’t care about the right to privacy because you have nothing to hide is no different than saying you don’t care about free speech because you have nothing to say,” he said.

But it is not enough to stop at Snowden’s remarks. Because the “nothing to hide” argument implies that the right to privacy, being individual-based, has no societal implications. I may have nothing to hide. But a whistleblower may want to hide his identity. A journalist may want to hide the identity of his or her sources. We all do not want a state-installed CCTV in our homes.

In addition, this moves the burden of proof from the perpetrator to the victim. It is for the surveyor to justify why he wants to observe the victim when the victim has nothing to hide, not the victim who has to justify why he doesn’t want surveillance. And it’s not just the one victim that is being observed – it is every single citizen.

As Spiros Simitis, the world’s first data protection commissioner, argued in an influential article in 1978, “privacy considerations no longer arise out of particular individual problems; rather they express conflicts affecting everyone”.

An unholy alliance

Your Lordships, I shall now move on from the changing concepts and our understanding of privacy to the second aspect of the changed circumstances – the tectonic shift in the availability of technologies. Here, we not only have a culpable state, but also multinational corporations, whose marketing interests coincide with the state’s surveillance interests to produce one of the most unholy alliances in modern history.

On October 7, the Delhi High Court pulled up the central government for “hiding contracts” with Google, WhatsApp and Facebook from the court. “Why are you not filing the contract? Why are you hiding them from us? What is the hesitation? It’s been five months since our May 7 direction,” the bench of Justices BD Ahmed and Sanjeev Sachdeva said.

The court was hearing a public interest litigation filed by former Bharatiya Janata Party member KN Govindacharya, who raised questions about the use of social media by government departments.

“The Centre has become the biggest marketing agent for social media sites,” Govindacharya’s counsel told the court, adding that the government was transferring or surrendering all intellectual property rights of the data being uploaded on these sites.

The world’s spying agencies have tools that allow them to take over smartphones with just a text message. The set of tools involved is known as “Smurf Suite”, according to Edward Snowden. Each of the individual tools has its own name. Dreamy Smurf lets the phone be powered on and off, and Nosey Smurf lets spies turn the microphone on and listen in on users, even if the phone itself is turned off.

National security

Your Lordships, since the 9/11 attacks, the “war on terror” has transformed into the cult of “national security”. This has been the source of all mantras for governments and their security agencies. Citizens, fed on the opium of this new religion, are in no state to question the overbearing force of the state’s coercion. They are willing to fall in line in the face of these two magic words and are willing to surrender their most precious rights – the right to think and the right to question.

May I draw the attention of Your Lordships to the Report of the Standing Committee on Finance (2011-12) on the proposed National Identification Authority of India Bill (2010) as it is directly related to the present Aadhaar case before this bench?

Concerns were raised by various members of the committee on the same issues of privacy and data protection that are now before you. The responses from the ministry were all based on the same template, as stated below:

Privacy? Yes. We understand your concerns. The Privacy Act will take care of the privacy right issues. Data Protection? Yes. We understand your concerns. The Data Protection Act will take care of the data protection issues.

To date there is no Privacy Act, no Data Protection Act, no DNA Profiling Act, and no Whistle-blower Act. The implementation of Aadhaar is being pushed through without them.

The impassioned plea before this bench is to let the scheme be implemented on a voluntary basis as it will be beneficial for the millions of poor. But there can be no voluntary implementation without informed consent. As a report in Scroll.in pointed out, “Informed consent can only exist when a person is consenting to every intended use, present and future, with clear knowledge of the risks and ramifications. This is clearly not the case, and can never be,”

Your Lordships, it is pathetic that the government wants the poor to barter their fundamental rights for welfare schemes. So the government’s only argument is: Allow us to do this because it is expedient to do this.

In one order passed by the previous bench hearing this case, their Lordships were kind enough to instruct the government to advertise widely and to communicate to the people that the Aadhaar card is a completely voluntary scheme and that no one can be compelled to use it except for LPG subsidy and some other public distribution service facilities.

To the best of our knowledge, the government has done little to implement this order.

Is it then surprising that the petitioners have approached this Honourable Court to now unequivocally declare that privacy is a fundamental right? How much faith should the people and how much faith should Your Lordships place in the statements that the government makes before various courts?

Let me now quote Julian Assange, the founder of Wikileaks: “The state would leech into the veins and arteries of our new societies, gobbling up every relationship expressed or communicated, every webpage read, every message sent and every thought Googled, and then store the knowledge, billions of interceptions a day, undreamed of power, in top secret warehouses, forever. And then the state would reflect on what it had learned back into the physical world, to start wars, to target drones, to manipulate United Nations committees and trade deals, and to do favours for its vast connected network of industries, insiders and cronies.”

Before I come to the end, I wish to express my heartfelt thanks to this Honourable bench, for giving me such a patient hearing. Your Lordships, this courtroom, as on many another glorious occasions, has become the centre stage of public attention. Perhaps we are once again at that crossroads in history, when the judgement you pronounce, shall determine the lives of the millions of citizens of this country – how they live, love, laugh and die.

The writer is the coordinator and founder member of the Dharma Rain Centre for Buddhist Studies.