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Big Brother is winning

The enhancement of state powers without control or transparency is not being
done against our wishes

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Written by Pratap Bhanu Mehta | Published:February 8, 2017 2:20 am

The writer points out that the more serious issue involves the conversion of Aadhaar from a tool of
citizen empowerment to a tool of state surveillance and citizen vulnerability. (Photo for
representational purpose)
The clamour for security, accountability and transparency is leading to unfettered increase in the
power of states. We are enacting law after law, introducing technology after technology, to
render citizens transparent to the state. But at the same time, we are weakening protections and
consenting to technologies in a way that makes the state less transparent to us. Totalitarian states
often do this against the wishes of their citizens; in our democracy, our consent is being
mobilised to put an imprimatur over more control and arbitrariness. And in a fit of distraction,
we have come to believe that giving the state more powers will conjure up all the goodies we
need. All it will produce is a disciplinarian society more under the states control.
Just witness the latest exhibit. The Finance Bill amended Section 132 of the Income Tax Act to
say that a tax authority will not have to disclose to any person or any authority or the Appellate
Tribunal why it has reason to believe that there is a basis for conducting a search and seizure
operation. Admittedly, the technical issues involved in this amendment are complex. There
seems to be a desire to protect the anonymity of tips, for example. In principle, more internal
checks are being created by making the issue of notices more centralised, presumably to reduce
randomness. But after all the technical arguments are laid out, it is still difficult to blunt the
chilling effect of the idea that the income tax authorities do not have to disclose any reason to
anyone.
There is a considerable case law on search and seizure in an income tax raid. The Finance Bill
euphemistically argues that the purpose of these amendments is to clear the ambiguity arising out
of judicial interpretations. Clearing ambiguity means the judiciary should not be allowed to hold
the state accountable. There is irony in this, since the judiciary does seem to grant considerable
leeway to the executive in this matter. Distinguishing between a malafide and bonafide raid is
not easy in any case. But think of what this amendment signals. Contrary to all promises, the
powers of tax authorities are being made even more arbitrary. It also confirms what many
suspected, that the pressure on government to now use income tax to scrape out non-existent
windfall gains from demonetisation is immense. But there is little ambiguity that in the name of
holding citizens accountable, we are opening the door to legalised authoritarianism.
But the more serious issue involves the conversion of Aadhaar from a tool of citizen
empowerment to a tool of state surveillance and citizen vulnerability. In the original debate over
Aadhaar, there were broadly three positions: Aadhaar sceptics who saw it largely as a tool of
surveillance and commercial profit; Aadhaar zealots who saw this as the key to energising the
economy, and were willing to cut corners on privacy and process; and finally, Aadhaar
moderates, who thought that with appropriate and deep safeguards, it could provide portable
identities and deliver some government benefits to citizens.
This column was in the moderate camp. But it has to be admitted that the moderate position is
looking increasingly untenable. Instead of a means, Aadhaar is becoming an end; instead of
strengthening safeguards, we are weakening them and the focus of commercial applications will
far outpace the need for citizen delivery. In short, the warnings of Aadhaar sceptics like Usha
Ramanathan are increasingly coming to pass. We should have taken them more seriously.
There are technical issues around the security of data bases, the problems of misidentification
and so forth that experts can discuss. But even assuming all of them to be fixable problems, the
four central issues relevant to preventing Aadhaar from becoming a tool of state suppression are
simply not being addressed. There is still no clear transparent consent architecture, no
transparent information architecture (which agency or vendor shares what information with
whom), no privacy architecture worth the name, and increasingly, no assurance about what
exactly you could do if the state decides to mess with your identity.
The project of force-feeding digitisation, now with the help of commercial players whom we can
hold even less accountable, and giving short shrift to all concerns of dignity, autonomy and
privacy, should cause worry. The moderate position was premised on an institutional hope that
now looks like a fools errand. It was premised on enacting laws that would be commensurate
with the scope of the challenge this technology poses. But governments, of all political parties,
have more or less abdicated that role.
The fact that there is no political contestation on issues of privacy and liberty is frightening. But
the courts have also managed to avoid all privacy-related issues by postponing them beyond any
reasonable cause. Increasingly, the courts track record is sending shivers down our spine. Courts
that are offended by a few lawyers being lampooned are unlikely to be great defenders of liberty.
By allowing the short-circuiting of processes, by giving so much leeway to executive power,
they have decreased our confidence in safeguards. In fact, the passing of issues pertaining to
Aadhaar as a money bill has become a perfect metaphor for what our system has become. We
have made rights instrumental to outcomes. The idea that we can institute sophisticated checks
and balances seems a pipe dream. No one wants to watch the watchers.
This moment in the enhancement of state powers without control or transparency is not being
done against our wishes: It is being done by mobilising them. The allure of convenience, the
clamour for a punitive accountability, an impatience with processes and checks and balances are
empowering the state beyond measure. We have sold ourselves a collective diagnosis. The
reason there is no accountability is because the state does not have enough power. This is a
dangerous delusion. Lots of small things need to be fixed with safeguards if you want an
accountable system, not more centralisation and unaccountable power.
You just have to look at those whose lives have been wrecked by wrongful prosecution to be
reminded of what the state can do to innocent people under the guise of law. The innocent have
nothing to fear, are not words of reassurance; they are the patronising ruse of an authoritarian
state. My having nothing to fear cannot be an excuse for exempting state action from scrutiny.
Our abdicating to the states arbitrariness is, to borrow Orwells words, an act of self-hypnosis,
a deliberate drowning of consciousness by means of rhythmic noise.
The writer is president, CPR Delhi and contributing editor, The Indian Express