If the aggressive anti-rights stand of the government in the Aadhaar case triumphs, the march towards an authoritarian state will be swift.
The Indian attorney general has argued that there is no fundamental right to privacy. Credit: Nick Youngson, Creative Commons
“It’s clear, isn’t it?—to assert that “I” has certain “rights” with respect to the State is exactly the same as asserting that a gram weighs the same as a ton. That explains the way things are divided up: To the ton go the rights, to the gram the duties. And the natural path from nullity to greatness is this: Forget that you’re a gram and feel yourself a millionth part of a ton.”
∼ Yevgeny Zamyatin, We
Attorney general Mukul Rohatgi’s argument to the Supreme Court that “citizens do not have absolute right over their bodies” elicited justified outrage. More revealing though, was his claim that the state is like a corporation, individuals are its members and therefore the “collective might of the state” could be deployed in the interest of an “orderly life, peace and tranquility”. This doctrine – with its origins in the writings of Jean-Jacques Rousseau, later perfected by G.W.F. Hegel – conceives the state and other corporate and legal entities as ‘social organisms’ that exist logically prior to, and have rights over and above, their constituent parts. The state, so conceived, has a life of its own, cares most for its own preservation and is the source and basis of all rights. Since it emerges from a mythical union of its members, it is the embodiment of the social and moral ‘whole’ and the realisation of the ‘common will’. Freedom then is the freedom to do what the state prescribes; greatness, in the readiness to subordinate oneself in the service of the state.
‘The state will not forget you’
If this is the theory, it follows that such a state must be all seeing, all knowing and all pervasive to enforce an “orderly, peaceful and tranquil life” for all. It is hardly surprising that the Indian state has been gradually building a stupendous machine to identify and profile, intercept, track and monitor its population. While it is common for bureaucracies to collect information on citizens, databases produced by various departments and agencies remain safely isolated from each other, making it difficult to monitor and profile people. The Aadhaar programme’s most important function is to create ‘linkage’ between databases, by attaching identification data – biometric and demographic – with behavioural data – bank transactions, communications, locational information or anything that can be picked up by surveillance systems. When ready, this Argus Panoptes will grow a billion eyes, sprout a billion ears and record in a boundless ledger of statistics the thoughts, desires and deeds of all. In an ominous tone, Rohatgi announced in the Supreme Court, “Even if you want to be forgotten, the state is not willing to forget you.”
Having run out of credible pretexts, the Narendra Modi administration has gradually become more honest about the Aadhaar programme. It is now common knowledge that the true purpose of Aadhaar is surveillance and profiling of ‘residents’. With big data on citizens, big corporations like Microsoft and Google have already begun to look for ways to tap into its commercial possibilities. What is frightening is the general indifference to all this, perhaps a reflection of our acquiescence to – even willing participation in – a culture of surveillance where every aspect of our lives can be observed, measured and commodified by corporate and state power. The founder of Facebook could even declare recently that “privacy is no longer a social norm”. And more and more, we have internalised the line that ‘those who have done nothing wrong have nothing to hide’. We also buy the excuse that privacy needs to be ‘balanced’ (compromised) with security and other concerns.
‘Nothing to hide, hence nothing to fear’
B.R. Ambedkar once pointed out that a fundamental right”‘means that the majority [or the state] has no right to do a certain thing” and it places “an absolute limitation upon the power of the majority”. As a liberal, he would argue that for citizens, the presumption must always be in favour of liberty and the burden of justification always on those who seek to restrict liberty. Conversely, for the state, the presumption must always be in the direction of tyranny. The assumption – rightly – is that the state is likely to encroach upon freedoms unless its actions are significantly restricted. For instance, if the police want to search your home, they must first back up their suspicion with credible evidence to obtain express legal authorisation to do so. This process ought to be a painstaking process, and the burden of justification heavy, since liberal societies carefully circumscribe the extent of intrusion by the state. In other words, enforcing the law must not be easy.
Consider this: almost all of us at some point have knowingly or unknowingly broken laws – bribed a clerk, jumped a light, ‘negligently’ flown a kite (yeah, it’s illegal), indulged in ‘indecent behaviour’ in public or made love ‘against the order of nature’. To land in jail, one has to first be ‘found out’ and identified, then be apprehended, tried and convicted. The harm caused by these minor ‘infractions’ often does not justify the trouble and effort required to punish them. In a Surveillance State, this trouble and effort is reduced effectively to zero. An omniscient and omnipresent state will have enough on everyone to ‘frame’ them whenever it chooses to. And when the whole society lives in violation of some or the other law, and the state ‘knows’ all of it, who will it decide to punish? Clearly, you will be put away the moment you become a threat to the ruling order. Law enforcement in such a regime would become targeted and selective, not principled or rule bound. As it turns out, we all may have something to hide after all.
But more importantly, constructive change can only occur in a system that tacitly or explicitly accommodates deviance. People often experiment and explore living alternatively – often outside the law – for societies to learn and change what it considers acceptable and thereby to transform or temper the codes that govern it. Law breaking is often a conscious risk, even a tactic, that people employ to shed light on a greater injustice or sometimes simply to oppose unjust laws. They do this with the understanding that law, as a system of formal rationality, must serve as an instrument of social adjustment and evolution. When one-sided and moralistic, it becomes a mask for despotism. A society of perfectly obedient ‘lawful’ subjects is one that is incapable of imagining another.
‘Why do you want civil rights?’
Though mass surveillance programmes have had very little success in anticipating and thwarting major terror attacks abroad, for a moment, let’s take the argument in favour of such programmes seriously. Imagine a condition of total surveillance, the dream of surveillance mongers. This, they hope, will create a perfectly law-abiding world. The impossibility of escaping the law would make everyone obedient – citizens would be transparent to the authorities, their behaviour would be predictable and orderly, and society would run like a well-oiled machine.
This is a conception of law transformed into an instrument of political power. In this world, the actions of those who undertake surveillance programmes are always self-justifying, while the acts of those they watch over are always suspect. To the watchers, every technological breakthrough provides enhanced tools for intrusion into the private lives of people and they often devise new legal contrivances to launch fresh assaults on civil liberties. After all, if you have done nothing wrong, the watchers will ask, why do you need civil rights to protect you?
Sure enough, Rohatgi has argued that “there is no fundamental right to privacy”. More recently, he dismissed privacy concerns as the “luxury of the rich”, ergo the poor, “who need benefits”, cannot afford (and therefore deserve no) privacy. When the attorney general talks about trading rights with (often illusory) promises of ‘benefits’, one must be deeply alarmed.
What was once called liberty, we now call privacy
The philosophical and legal debates over privacy has an interesting history and can be traced back to the elementary distinction between the public and private spheres. Proponents of privacy speak of it as a value or domain where one can be free from interference of others – ‘the right to be left alone’ – or, as a concept that is essential for human dignity. Critics of privacy, on the other hand, consider it at worst a redundant concept, at best ‘derivative’ of other rights.
However, privacy is much more than the right to be left alone. It is freedom to determine how much of, and in what manner, we wish to share ourselves with others. Far from being derivative of other rights, it is implicit in many of our other freedoms, but is not exhausted by them. There are laws that protect our bodies, enable us to isolate ourselves, protect our right to associate with others, ensure that our conversations remain private and so on, all of which presuppose privacy. But privacy is also a social norm, where we constantly negotiate our varying assessments and and expectations of privacy with others, and enforce it through a range of social regulations and practices.
The direct effect of widespread surveillance is to be deprived of the freedom to determine and protect what we regard as private, or the possibility of negotiating it with others. But the indirect effect of privacy is even more pernicious, where simply the possibility of being watched makes people less likely do things that they think might arouse suspicion. Under the public eye, people behave as they would like to be seen, which is often at odds with how they actually are or would like to be. Perhaps the first empirical study of such ‘chilling effects’ in the context of online surveillance was published recently by Jonathon Penny of Oxford university. Penny’s paper confirms a long-held belief, that being watched creates a tendency towards conformity and self-censorship. The French philosopher Michael Foucault popularised the image of the Panopticon, a circular prison building designed by the 19th-century British jurist Jeremy Bentham (whose spirit still haunts the Indian Penal Code) to efficiently control inmates who think they are under the watch of an ‘omnipresent inspector’. To Bentham, his prison was a “new mode of obtaining power of mind over mind”. Being watched makes people more docile, conformist and deferential, and less likely to think and act independently. The attack on privacy is therefore, most of all, an attack on the domain of creative thought, activity and dissent.
As the Supreme Court faces the challenge of curbing the voracious ambitions of the executive, it must recall John Stuart Mill’s ‘most cogent reason’ for objecting to governmental interference: “the great evil of adding unnecessarily to its power”. Generalised surveillance will greatly enhance the power of the state by being able to inspect over and intrude into the lives of all citizens. If the aggressively anti-rights stand of the government triumphs in the Aadhaar/PAN debate, the descent towards authoritarianism could be quick, and perhaps unstoppable.
Hussain Indorewala teaches at the Kamla Raheja Vidyanidhi Institute of Architecture in Mumbai.
