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 state’s 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 fool’s 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 court’s 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 state’s arbitrariness is, to borrow Orwell’s words, “an act of self-hypnosis, a deliberate drowning of consciousness by means of rhythmic noise.”
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