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Mainstream, VOL 61 No 52 December 23 & 30, 2023

UID/Aadhaar and the politics of digital totalitarianism - an Interview with Gopal Krishna

Saturday 23 December 2023


The below interview with Gopal Krishna was conducted by Boerries Nehe, a sociology researcher and the coordinator of the International Research Group on Authoritarianism & Counter-Strategies (IRGAC), Berlin. It was submitted for publication by the interviewee in understanding with IRGAC

1. Your research focuses on “data mining”, especially in the Indian context. What exactly do you refer to with this notion?

Answer: Data mining or analysis is a clumsy exercise in defining. Data and the outcome of data mining are probable expressions, translation, or symbolic representation of being and reality. Data analysis is not an equivalent of intuition of lived reality but data determinism treats it to be equal to being and reality. The difference between atom (commoditiy) and bit is at the core of the digital landscape and the e-commerce based on data mining. A “bit” which is the smallest atomic element in the DNA of information, is the key to the ongoing merger between cyberspace has colonised the physical space. A bit is a 1 or a 0 skipping all other numbers wherein numerals like 1, 2, 3, 4, 5 is symbolised by binary representations of 1, 10, 11, 100, 101. All types of information has been rendered into simiar reduction of 1s and 0s. The number of bits that can be transmitted per second through a channel like optic fiber is the bandwidth of the channel. A fiber of the size of human hair can deliver almost infinite anount of data and datafied memory. Data mining is an excercise in mining of static memory. Data mining processes create facts about individuals. It is impossible for law makers, law enforcers and law interpreters to conceive of all the possible uses of information or its consequences because it involves information the individual did not possess and could not disclose, knowingly or unknowingly. This paves the way for the emergence of an “information State” relying on information.

2. You’re specifically looking at Adhaar, a unique identity number for all residents of India which is considered to be “the world’s largest biometric ID system”. Can you tell us a bit about how this project developed? And who’s pushing it forward?

Answer: Aadhaar is the brand name of 12-digit biometric Unique Identification (UID) number. It is not a proof of citizenship. India’s world’s largest biometric ID project, the Central Identities Data Repository (CIDR) of 12-digit biometric Unique Identification (UID) numbers that creates a single database of technical metadata, business meta data and process meta data of all present and future residents of India originated in response to abandonment of UK’s National ID project. UK’s ID card scheme was cited in India by Wipro Ltd, a consultant by Government of India to push for India’s CIDR of UID/Aadhaar number project.

In UK, Tony Blair-led Labour Party government was providing National Identity Cards based on demographic and biometric details. David Cameron-Nick Clegg coalition of Conservative Party and Liberal Democartic Party announced that the scheme would be scrapped if they came to power. When they came to p ower Cameron led government stopped the ID project on the recommendations of a study by London School of Economics (LSE). The LSE study concluded that “It is inappropriate for government to model the design of a national ID card infrastructure for citizens after architectures for enterprise identity management that centrally house the capability to electronically trace and profile all participants”. UK’s ID card scheme was cited in India by Wipro Ltd to push for India’s UID/Aadhaar project. The LSE report further asserted that “Panoptical identity management architectures would also eliminate the ability of government and private sector service providers to function autonomously, requiring a transformation of their own systems for integration purposes. It would introduce enormous security risks to citizens, companies and government alike….”. Although the LSE report was published in June 2005, Wipro’s Strategic Vision: Unique Identification of Residents’ submitted in July 2006 feigned ignorance about it while recommeding UID scheme to the Government of India.

In a related development, a Task Force for preparation of the Policy Document on Identity and Access Management under National e-Governance Programme (NeGP) was constituted in October 2006, which was supposed to submit its report by December 2006. The report of the Task Force talked about “Citizen Identities” and “Owner of identities”. It states, “The Identity Information is stored by multiple agencies in multiple documents like Ration card, Driving License, Passport, Voter’s card, Birth Certificate etc. The purpose of the Project unique ID (UID) initiated by the Planning Commission of India is to create a central database of resident information and assign a Unique Identification number to each such resident.” J Satyanarayana, the last Chairman of the Unique Identification Authority of India (UIDAI) was member of this Task Force in his capacity as Director General, National Institute for Smart Government (NISG). It is noteworthy that there were eleven technology solution providers including IBM, Microsoft and HP as members of the Indian Task Force. This report reveals that each registered judicial court has a unique identification (UID) number at Subordinate Courts, High Court and Supreme Court. It is apparent that it is part of profiling and surveillance of judicial institutions as well in a context where judicial data, prison data and police station data is being converged in breach of the doctrine of separation of powers among different organs of the state.

This Task Force seems to have been constituted in India to draft a made-to-order report, as a response to LSE’s report, which was a huge setback for identification technology solution companies across the globe.
Biometric unique identification (UID) initiative has its roots in USA. The National Biometric Test Centre, San Jose State University was set up by the Biometric Consortium, which is the US government interest group on biometric authentication. It emerged from a meeting of Biometric Consortium held in 1995, at the FBI training facility. This test centre has defined biometric authentication as “the automatic identification or identity verification of an individual based on physiological and behavioural characteristics”. The Centre was asked to testify before the hearing on “Biometrics and the Future of Money” conducted by Subcommittee on Domestic and International Monetary Policy, Committee on Banking and Financial Services, U.S. House of Representatives in May 1998. This testimony of has been reprinted under the title, “Biometric Identification and the Financial Services Industry”. The Committee deliberated on the biometric identification technologies based on facial recognition, finger imaging, iris scans, voice recognition, DNA profiling and signature which has potential applications that extend beyond banking, financial transactions, protection of individual data from identity theft and other forms of fraud to securing secret intelligence, protecting strategic commercial data and law enforcement. At the outset, inspired by the Peruvian economist Hernando de Soto Polar’s 2000 book The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else. Even before taking charge as India’s first chairman of Unique Identification Authority of India (UIDAI), Nandan Nilekani drew on this book and began arguing that a national ID system that would be a big step for land markets to facilitate the fundamental right to property and to bring down poverty! He never explained the rationale for this unique proposition. In the post-capitalist and the post-socialist era, such assumptions of triumph of capitalism have been found to be deeply flawed.

In fact, even the title of the book sounds weird in the post-financial crisis era. Nilekani published these arguments in his book, Imagining India. Hernando de Soto’s work on informal sector is aimed at dismantling what he calls ’extra-legal economies’. In 2003, USA’s Depratment of Defense adopted the UID policy. Amidst bitter opposition from the Democratic Party, the REAL ID Act of 2005 was enacted in USA during Geoerge W.Bush era.

World Bank’s e-Transform Initiative (ETI) formally launched on April 23, 2010, in Washington for converging private sector, citizen sector and public sector, and the Interpol’s e-identity database project. UID related initiatives of North Atlantic Treaty Organisation (NATO), a military alliance whose role is at the centre of Russia-Ukraine war. The UID related initiatives for voluntarily seeking the full-fledged Financial Sector Assessment Programme by the International Monetary Fund and the World Bank in January 2011 appear to be linked. The e-identity of the Bank and UID/Aadhaar-related projects are part of the same Washington-based initiative. The World Bank’s ETI seeks to leverage ICT to build a knowledge-sharing network that helps governments of developing nations to leverage best practices and improve the delivery of social and economic services. The knowledge-sharing network will focus on areas such as electronic Identification (eID), e-procurement, e-health and e-education, areas vital to promoting the participation of citizens in democratic processes such as voting, and helping undocumented citizens get access to health and welfare programmes. The World Bank reported is funding 14 projects related to e-government and e-ID around the world. The CIDR of UID/aadhaar is one of these projects.

A book Reimagining India edited by McKinsey & Company has a chapter by Mukesh Ambani, the richest corporate donor of India’s ruling parties titled ‘Making the Next Leap’ endorsing biometric profiling based identification. Ambani writes, “Aadhaar, an initiative of Unique Identification Authority of India (UIDAI), will soon support the world’s largest online platform to deliver government welfare services directly to the poor.” Eric Schmidt as executive chairman of Google co-authored The New Digital Age: Reshaping the Futures of People, Nations and Business wherein he says, “The government’s Unique Identification project, led by my friend Nandan Nilekani, is creating enormous new possibilities for e-commerce.” The disruption of public institutions caused by introduction of automatic identification technologies is making Constitution of India subordinate to considerations of e-commerce.

Nilekani has also authored a chapter titled “A technology solution for India’s identity crisis”. He does not disclose that the National Population Register (NPR) of Ministry of Home Affairs and Central Identities Data Repository (CIDR) of UID/Aadhaar numbers of Unique Identification Authority of India (UIDAI), Ministry of Elecronics and Information Technology (MEITY) are aimed at creating an architecture for indiscriminate mass surveillance of the present and future voters who are being structurally coerced to give their consent to the immoral and illegitimate exercise of their profiling for countless times.

Structurally, both Aadhaar and NPR are part of one initiative which has turned every present and future resident of India into a suspect. The majority order of the Indian Supreme Court’s 5-Judge Constitution Bench on September 26, 2018 points out that the UID/Aadhaar number project and NPR project are part of the one database convergence scheme. NPR has been mentioned at least on eight occasions in the order. By now it is apparent that there is a file being created to track and profile every resident of India for good. The replies to questions posed under Right to Information Act reveals that Indians did not have any identity crisis. It is apparent that commercial czars are promoting automatic biometric identification technologies as answers without identifying the questions of public good. It is a bizzare situation wherein a situation is being created where right to have natural rights is being made condition precedent on biometric identification by the beneficial owners of UID/Aadhaar database. This transformational initiative is being pushed forward by the beneficial owners of the automatic identification, profiling and surveillance technologies.

3. There has been much debate and legal and political struggles around Adhaar and the work of the Unique Identification Authority of India (UIDAI). What are the central points of critique?

Answer: The debate and legal and political struggles around UID/Aadhaar number database and the work of the UIDAI needs to be looked at in the context of the provisions of the Aadhaar Act and Regulations, along with the framework as it existed prior to the enactment of the Act, through the prism of the Constitution of India and the precedents established by the Supreme Court of India. The dissenting order of Justice (Dr.) Dhananjaya Y Chandrachud as part of the 5-Judge Consitution Bench dated September 26, 2018 in Justice K S Puttaswamy (retd.) v. Union of India has echoed the concerns raised by citizens including Justice V.R. Krishna Iyer, former justice of Supreme Court; Justice A.P. Shah, former Chief Justice of Delhi High Court and former chairman of the Law Commission of India, Prof. Upendra Baxi, eminent legal philosopher, late K.G. Kannabiran, co-founder and President of the People’s Union of Civil Liberties, late S R Sankaran, former Chief Secretary of the State of Tripura, Romila Thapar, Uma Chakravarti, noted historians and Usha Ramanathan, a noted jurist in September 2010. Justice Chandrachud has reiterated his opposition to Aadhaar Act in Rojer Mathew v. South Indian Bank Ltd on 13 November, 2019 as part of 5-Judge Consitution Bench. Justice Chandrachud will take charge as Chief Justice of India on July 30, 2022. This Bench has referred the matter to a larger Bench which is yet to be constituted.

So far the Supreme Court has not taken cognisance of the recommendations of the London School of Economics (LSE) made in its report on UK’s National ID project and CAG’s report on the funcitioning of UIDAI to decide the constitutionality of Aadhaar Act and manifest errors in the majority order authored by Justice Sikri. LSE’s recommendations were cited with approval by Yashwant Sinha headed Parliamentary Standing Committee on Finance in its report on the National Identification Authority of India Bill, 2010. This Bill was modified and converted into Aadhaar Act in 2016. The Aadhaar Act has been enacted by illegitimately bypassing Rajya Sabha, the Upper House of the Parliament. In his order, Justice Chnadrachud had recorded that “Prior to the enactment of the Aadhaar Act, no mandatory obligation was imposed upon the Registrars or the enrolling agencies, to obtain informed consent from residents before recording their biometric data, to inform them how the biometric data would be stored and used and about the existence of adequate safeguards to secure the data. Moreover, prior to the enactment of the Act, while UIDAI had itself contemplated that an identity theft could occur at the time of enrollment for Aadhaar…. it had no solution to the possible harms which could result after the identity theft of a person. The Regulations framed subsequently under the Aadhaar Act also do not provide a robust mechanism on how informed consent is to be obtained from residents before collecting their biometric data.”

Although the two classes of information (core biometric information and identity information) are integral to individual identity that require equal protection, the Aadhaar Act suffers from overbreadth as it gives wide discretionary power to UIDAI to publish, display or post core biometric information of an individual for purposes specified by the delegated legislation. Under the Act the definition of biometric information also suffer from overbreadth and facilitates an invasive collection of biological attributes. These provisions give discretionary power to UIDAI to define the scope of biometric and demographic information. The law empowers UIDAI to collect any “such other biological attributes” that it may deem fit and expand on the nature of information already collected at the time of enrollment. UIDAI has generated more than 129.04 crore Aadhaar numbers for residents of India till the end of March 2021. The fact that some half a million of these Aadhaar numbers have used same biometric information till November 2019 makes the entire database tainted and unreliable. This has come to light from the recent audit report of Comptroller Auditor General (CAG) of India. Justice Chandrachud has taken note of the fact that “Biometric technology which is the core of the Aadhaar programme is probabilistic in nature, leading to authentication failures. These authentication failures have led to the denial of rights and legal entitlements.” This undermines the human dignity of citizens. He points out that “Identity is necessarily a plural concept. The Constitution also recognizes a multitude of identities through the plethora of rights that it safeguards. The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself/himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.”

Contrary to the claims of the promoters of CIDR of UID/Aadhaar numbers like Nandan Nilekani that “Millions of people without any ID, now have an ID”, the fact is that of all the Aadhaar numbers issued to Indian residents till date – 99.97 per cent had pre-existing identification (ID) documents. This proves that ‘an inability to prove identity” has not a major barrier to access benefits and subsidies. A confidential document of UIDAI leaked by Wikileaks on November 13, 2009 is titled ‘Creating a unique identity number for every resident in India’. It reads: “One way to ensure that the unique identification (UID) number is used by all government and private agencies is by inserting it into the birth certificate of the infant. Since the birth certificate is the original identity document, it is likely that this number will then persist as the key identifier through the individual’s various life events, such as joining school, immunizations, voting etc.” Neither the legislature nor the citizens of India have been informed about how the this project paves the way for unlimited surveillance. It may be recalled that the Union government’s notification of 2009 that created UIDAI did not authorise the collection of biometric data. As a consequence, the validation of actions taken under the 2009 notification by Section 59 of Aadhaar Act does not save the collection of biometric data prior to the enactment and enforcement of the Act.

The total estimated budget of the CIDR of biometric UID/Aadhaar numbers project and its cost: benefit analysis has not been disclosed till date. Unless the total estimated budget of the project is revealed, all claims of benefits are suspect and untrustworthy. Is it possible to know about total savings unless the total cost of the project is disclosed? Can limited audit of continuing expenditure of Unique Identification Authority of India (UIDAI), an instrumentality of Union of India be deemed a substitute for total estimated budget of the project? It has been admitted by CAG that the audit of functioning of the UIDAI is partial because of non-transparency. The report of the CAG arising from performance audit of functioning of the UIDAI for the period from 2014-15 to 2018-19 is incomplete because it is based on statistical information “to the extent as furnished by UIDAI” upto March 2021. It has been acknowledged that CAG is a structurally weak public institution. It audits only the files which are provided to it by the agencies and instrumentalities of the State.

It may be noted that the Ninth Audit Advisory Board of CAG comprises of Nandan Nilekani, Chairman of the Board, Infosys Technologies Ltd. Coincidentally, his wife, Rohini Nilekani, chairperson, Arghyam Foundation too has been a member of this Board in the past. It is yet to be ascertained whether the presence of Nilekanis in CAG’s Board influenced the outcome of CAG’s audit given the fact that Nilekani, the co-founder of Infosys who was appointed as the first Chairman of UIDAI on July 2, 2009 while he was still serving Infosys Ltd. as its CEO, President and Managing Director. His resignation from Infosys became effective from July 9, 2009. Nilekani re-joined Infosys Ltd subsequent to his failed attempt to enter Parlaiment as a candidate of the Indian National Congress, the ruling party. Had UID/Aadhaar been popular being the key marketing person of the project, he would have got people’s mandate. The democratic mandate of 2014 elections was against UID/Aadhaar project because Bhartitya Janata Party (BJP), the opposition party got electory victory after promising to scrap the project.

But unlike UK’s opposition parties which fulfilled their promise of abandoning the National ID project on coming to power, BJP did not fulfill its electoral promise. Government of India suceeded in misleading Justice A K Sikri (now retired) who authored the manjority order of the Supreme Court of India. Although according to Aaadhaar Act, UID/Aadhaar number is not a proof of citizenship, rather it is a proof of residency of up to 182 days in India prior to enrolment for this number, Justice Sikri committed the unpardonable blunder and judicial impropriety of using the words “resident” and “citizen” interchangeably. CAG has detected that although the "Aadhaar Act stipulates that an individual should reside in India for a period of 182 days or more in the twelve months immediately preceding the date of application for being eligible to obtain an Aadhaar. In September 2019, this condition was relaxed for non-resident Indians, holding valid Indian Passport. However, UIDAI has not prescribed any specific proof/ document or process for confirming whether an applicant has resided in India for the specified period and takes confirmation of the residential status through a casual self-declaration from the applicant. There was no system in place to check the affirmations of the applicant. As such, there is no assurance that all the Aadhaar holders in the country are ‘Residents’ as defined in the Aadhaar Act."

Even the flawed order authored by Justice Sikri has some redeeming features. It declared Section 57 of Aadhaar Act which provided for “the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect” unconstitutional.

But in violation of the Supreme Court’s verdict and in violation of Aadhaar Act 2016 (as amended in 2019), UIDAI is providing “Authentication services to banks, mobile operators and other agencies” in the aftermath of the deletion of Section 57. The deletion of this provision is in compliance with the Justice Sikri’s judgment. In his judgment, it is stated that apart from authorising the State, even ‘any body corporate or person’ was authorised to avail authentication services. This can be on the basis of purported agreement between an individual and such a body corporate or person. The part of Section 57 that allowed for people to voluntarily provide their Aadhaar number to body corporates and individuals, especially on the basis of a contract between the person providing the Aadhaar number and the person acquiring/ authenticating the Aadhaar number, has been held to be unconstitutional by the Supreme Court. But the amendment to Section 4 of the Aadhaar Act that deals with ‘Properties of Aadhaar number” re-introduces clauses that have already been ruled to be unconstitutional. This feature has enabled commercial exploitation of individual biometric and demographic information.
UIDAI has failed to levy penalties on Biometric Service Providers for deficiencies in their performance in respect of biometric de-duplication and biometric authentication. CAG recommends that “Agreements in this regard should be modified, if required”. This also creates a logical compulsion for States to unsign their MoUs with UIDAI. These MoUs have not been modified in the light of the deletion of Section 57 of the Aadhaar Act.
The audit of the functioning of UIDAI reveals that UID/Aadhaar number database has put the privacy of present and future residents, Prime Ministers, Chief Ministers, judges, legislators, soldiers, civil servants and their families at risk. It is evident that right to privacy is structurally linked to national security but India does not have a right to privacy and data protection law despite the fact that the government has been promising that it will enact a right to privacy and data protection law since 2010.

The April 2007 report of the Task Force for preparation of the Policy Document on Identity and Access Management under National e-Governance Programme has disclosed that each registered judicial court has a UID number at Subordinate Courts, High Court and Supreme Court. It paves the way for profiling and surveillance of judicial institutions. As part of National Judicial Data Grid, a database of orders, judgments and case details of 18,735 computerised District and Subordinate Courts, creation of an online platform under the eCourts Project has reached the stage of launch of the Interoperable Criminal Justice System. It seeks to integrate and make data interoperable between different institutions, such as police, prisons and courts, involved in the criminal justice system. This makes separation of powers envisaged in The Spirit of the Laws (1748) by Montesquieu meangingless given the fact that UID/Aadhaar identifier project is a convergence scheme.

4 You claim that we have passed from a neoliberal centrism to a “neoliberal totalitarianism”, and from there to what you call “instrumentarianism”. Can you tell us more about this conceptual framework, especially on the relation between totalitarianism and intrumentarism?

Answer: Unlike ‘embedded liberalism’, neo-liberalism, a model of free market capitalism is normalizing commodification of everything including human relations, natural heritage, commons and data. New automatic identification, communication and big data technologies are facilitating commodification of data, internalizing automation of inequality and externalizing the cumulative cost of extinction of plant, animal and insect species with disruptive consequences for natural persons and natural heritage. The landscape, soundscape and mindscape created by the information, entertainment and communication technologies at the behest of their owners has a nexus with the geographical space which is being used by the bearers of totalitarian ideologies. They use these tools to create rupture in the society by framing certain internal and external communities as enemies by exaggerating pre-existing biases and prejudices as national security threats.

A survey of the big data driven identification (ID) schemes in China, USA, and UK besides the databases of residents in South Asia reveals the ramifications for natural rights of people and sovereignty of the countries. Big databases are at the root of the rise of instrumentarianism, an “unprecedented species of power” that has not been comprehended as yet. Shoshana Zuboff’s conception of instrumentarian power is reminiscent of the reference to “instrument-effects of a ’development’ project” of James Ferguson in his The Anti-Politics Machine:‘Development’, Depoliticization and Bureaucratic Power in Lesotho”, it showed how developmental initiatives pushed by international financial institutions like World Bank Group succeed even in their failure. Zuboff deepens the conception of instrument effect and makes a case for comprehending instrumentarianism without the old lense of totalitarianism. The old lense eclipses the deleterous ramifications of instrumentarian power, which is not confined to “total possession”, it extends to “total certainty”. It creates a dehumanizing irreversibility and inevitability. Unlike totalitarianism which was state project for social domination, instrumentarianism is a market project. The latter converges with the digital for social control through behavior modification reducing “human experience to measurable observable behavior.” The knowledge that emerges from big data that captures human behavior is “proprietary”. It belongs to the beneficial owners of big data technologies, who are indifferent to human freedom paving the way for “billions of sensors filled with personal data” to fall outside constitutional limits, consequenting in the extinction of constitutionalism.

5. E-commerce is promoted by businesses, governments and institutions as a solution to facilitate market participation. But the 2020-2021 Farmers’ Protests were directed against the further introduction of e-commerce into the agrarian sector. Can you tell us more about this relation?

Answer: The controversial Farmer’s Produce Trade and Commerce Act, 2020 which has now been repealed due to world’s largest civil resistance in India had a provision for “electronic trading and transaction platform” referring to "a platform set up to facilitate direct and online buying and selling for conduct of trade and commerce of farmers’ produce through a network of electronic devices and internet applications, where each such transaction results in physical delivery of farmers’ produce." This provision had the potential to kill government regulated market yards and leave the present and future generation of farmers at the mercy of agri-business and advocates of smart data driven agriculture at the behest of faceless donors to the ruling parties. It implied that state ought to remain absent as a sovereign regulator with regard to agriculture and agricultural commodities. Besides this totalitrian law, the Essential Commodities Amendment Act, 2020 which too has now been repealed decriminalised hoarding of agricultural commodities to facilitate hoarding by digital tycoons and agri-businesses, who are the anonymous donors of the ruling parties in India. A joint reading of the three Indian farm laws which faced unprecedented resistance, reveals that the ecosystem of supply-chain was being re-written through electronic trade of agricultural commodities by displacing farmers’ food and income security besides displacing traditional commerce and trade in these commodities. It adversely impacted consumers as well. The world’s longest protest of agriculturalists assumes significance also because Rosa Luxemburg noted in her work that according to "physiocrats" only agriculture is productive branch of economy, which is "a highly revolutionary thought" in the history of political economy. (p.504, Volume 1, Economy Writings, The Complete Works of Rosa Luxemburg, Edited by Peter Hudis)

Government had to backtrack because it had introduced the three farm laws without the consent of the agriculturalists. Instead of learning any lesson from the farmers’ resistance, the Ministry of Agriculture & Farmers Welfare is in the process of finalising ’India Digital Ecosystem of Agriculture (IDEA)’ which is laying down a framework for Agristack, a part of India Stack built on the Aadhaar database without taking the consent of the farmers. Agristack is a collection of technologies and digital databases that focuses on farmers and the agricultural sector. Meanwhile, Nilekani’s firm Fundamentum Partnership is in talks to back Bijak, a platform which operates a business-to-business marketplace to trade agricultural commodities.

During the 5-day World Trade Organisation (WTO) ministerial conference held in June 2022, India, Indonesia, Sri Lanka, Pakistan and South Africa asked members of the WTO to review the continuation of the moratorium on customs duties on e-commerce trade, seeking a change in status quo prevailing over the past 24 years and threatened to block an extension because the financial consequences of the moratorium is mostly borne by the developing countries. Out of 95 developing countries, 86 countries are net importers of digital products and only five big technology giant companies are controlling the market. India’s Commerce Minister revealed how during 2017-2020, developing countries have lost potential tariff revenue of at least $50 billion only on the import of 49 digital products. By 2025, this potential revenue loss is estimated to be about $30 billion a year. Small exporters of physical products like textiles, handloom, clothing, footwear, based out of developing countries face both domestic taxes and customs duties but the big digital exporters are being exempted from custom duties due to the moratorium on customs duties on electronics transmission in 1998. This moratorium has been extended periodically at successive ministerial conferences. The validity of the current extension was up to the 12th ministerial. The developed countries sought another extension up to the 13th WTO ministerial. It is notewarthy that WTO members have neither defined “electronics transmission” nor come to an understanding on its coverage of products. This creates impediments in finding ways to impose the duties. It is difficult for countries to even tax imports of products that gets linked to digital goods. USA, UK and the EU succeeded in persuading WTO members to arrive at an agreement for ra provisional deal on June 16, 2022 to extend a moratorium on applying duties to electronic transmissions until the next ministerial meeting, which should ordinarily be held by 31 December 2023". The moratorium would expire in March 2024 if the next conference be postponed. This provisional deal needs to be backed by the WTO’s 164 members.

In December 2017, at the 11th ministerial of WTO, India submitted a written position on e-commerce opposing demand for negotiations on e-commerce by US and its allies. The latter are demanding access to citizens’ database for free as per their written submission. Most developing countries opposed it. An Analytical Note of South Centre dealing with WTO’s discussions on e-commerce observes that “There will also be financial losses when investors, rather than establishing local presence, prefer to provide services online. Countries will experience losses from taxation foregone.”

In such a backdrop, it is not surprising that farmers’ protests are directed against indiscriminate introduction of e-commerce into the agrarian sector. What is surprising is that India is taking contrary positions at national and international level in this regard. The online databases including CIDR of UID/Aadhaar is admittedly on cyber cloud beyond the jurisdiction of India which facilitates foreign investors and compromises the economic interest of Indians. Unmindful of imminent economic disruptions the the proposed data protection law framework by Government of India remain foreign digital entrepreneur centric, not citizen centric. Even the abandoned farm laws were indulgent towards investors. It is apparent that India is not geared up to keep pace with emerging future of Internet which is being embedded into everything and which is going to be invisible.

6. The original promise of the internet was that it would allow for more equality. You claim that databases produce the opposite: extreme inequality, coupled with colonialism. How is this so?

Answer: It has been noted that at present high flows of data and information generate more economic value than the global goods trade in a paper titled Digital globalization: The new era of global flows by James Manyika et al. A paper titled Analytics - Empowering Operations: The UIDAI Experience uses the simile of water flow for data flow. It reveals the sensitivity of the controller and owner of the grids- be it water grid, power grid or data grid. The paper by UIDAI observes, “Data can be considered as the equivalent of water. There are a number of processes involved before the actual consumption of water and data. The journey begins with data, like water, being generated at multiple sources. These are then brought together into one central location”. There are forces at work who seek centralization of every conceivable resource unmindful of its consequences for epistemic justice. Despite colonial experience, the far reaching ramifications of such free flow of human data in one direction remains to be fathomed in its entirety. The fact remains one of the key factors for colonization was information asymmetry between the occupiers and the occupied, between the conqueror and the vanquished and the money lenders, bankers and their clients.

Internet’s commercial use was illegal until 1992. Goverment of USA gave birth to internet for reasons of national security and sureillance. In 1994, New York Times published a story titled “ US begins privatising internet operations”. Soshana Zuboff too had expressed her optimism about these “smart machines” when she wrote “In the Age of Smart Machine: The Future of Work and Power in 1984, two years after Time magazine did a cover story on computerisation in 1982. She realised her error after 35 years and wrote The Age of Surveillance Capitalism: The Fight for Human Future at the Frontier of Power. Being an interpretation machine, internet is fueled by data repositories which are offline and online logistical infrastructures. The data warehouses exist as a repository of electronically stored data, designed to facilitate identification, recording, reporting and analysis. They play a central role in the global supply chain of goods and services or goods as services. The access to data is akin to access to natural resources. It is increasingly becoming a determinant of inequality. It is creating an architecture wherein valuation of digital services is getting enhanced through e-commerce but there is devaluation of commodities, agricultural commodties, bio-resources in particular and workers. The centralization of data reminds one of what Marx said in the chapter on The General Law of Capitalist Accumulation in Capital, Volume 1. It consequents in “accumulation of wealth at one pole” and “at the same time accumulation of misery, agony of toil slavery, ignorance, brutality, mental degradation, at the opposite pole”. The convergence of data and internet is eliminating the distinction between public and citizens’ sphere using public information infrastructure and architecture of total social and environmental control.

7. Finally, you claim that there’s a “right and duty to civil disobedience”. Which strategies to counter this digital totalitarianism are happening in India and other parts of the world? Which struggles do you find most promising?

Answer: Human beings have a “right and duty to civil disobedience” in the face of unjust laws because unjust laws are no laws. The laws or laws disguised as computing codes which determine right to have natural rights dependent on surrender of human data for eternity, are unjust laws too. The computing codes that facilitate convergence, tracking and profiling operate as laws. Therefore, there is a logical compulsion to contest injustice both as right as well as a duty. Both at personal and collective level, when government’s forfeit their moral and constitutional claim to obedience, non-cooperation with evil is a moral and political right as well as a moral and political duty because obedience in the face of injustice and moral wrong is deeply problematic. Drawing on Gandhi’s experience as a civil disobedient, K.G. Kannabiran writes that no regulation is law unless it is based on the consent of the people and where such consent is wanting, people are under no obligation to obey in his The Wages of Impunity: Power, Justice and Human Rights. Kannabiran was the co-founder of India’s People’s Union for Civil Liberties. Kannabiran refers to Gustav Radbruch, a German jurist who held that “Where the violation of justice reaches so inrolerable a degree that the rule beomes in fact ‘lawless law’, the law has no claim to obedience.” He signed a statement of concern against biometric profiling of people for convergence, tracking and surveillance through UID/Aadhaar before his death.

As a strategy enlightened non-cooperation of informed citizenry with the beneficial owners of digital totalitarian technologies can overcome the architecture of that alters the relationship of citizens with state and non-state actors by naturalising and normalising unlimited surveillance. In India, political and legal struggles around the database of UID/Aadhaar numbers have created an awareness regarding the perils of invasive, intrusive and disruptive technologies. By now most Indians know that this initiative is controversial despite the blitzkrieg of propaganda by the donors of the ruling parties and their governments. Parliamentary Standing Committee on Finance recommended its scrapping. CAG’s audit has vindicated the positions of the parliamentary committee and the citizens. As a consequence of robust constitutional challenge the big data project and the Aadhaar law is sub judice before the Constitution Bench of the Supreme Court of India. At least three Left Parties have promised to abandon this project. Rahul Gandhi, the leader of Indian National Congress, the main opposition party which had initiated this project when in power has admitted during an interaction at the University of Cambridge that UID/Aadhaar is a “political weapon”. Prior to this in his interaction with Gandhi, Prof. Abhijit Banerjee, the Nobel laureate opined that UID/Aadhaar idea has collapsed. When the government attempted to introduce NPR which is structurally linked to UID/Aadhaar there was countrywide protest which compelled the government to put it on hold.

The ideology of digital totalitarianism which is behind creation of all-encompassing web of centralized data repositories of residents of South Asia, China and across the world is facing articulate ad inarticulate resistance. It is increasingly being realised that such data repositories are being created to extract economically significant insights and “prediction products” in the name of “financial inclusion” missions. These missions have been launched by the beneficial owners of totalitarian automatic identification technologies through their ruling parties. Everyone has access to their technologically extracted data provided they can afford it. This perpetuates agencylessness and submissiveness vis-a-vis state and non-state authorities who have disproportionate control over the data depositories of all shades and brands of humans. It is significant that as a outcome of legal struggle against collection and storage of unlimited data, European Court of Human Rights has ruled against indiscriminate collection of biometric data.

Non-violent struggles and mobilisation of informed citizens is the most promising. It alone has yielded emancipatory results in India. The enactment of Right to Information Act as a result of peoples’ movement has enriched the democratic content of the political ecosysytem. Centralised data repositories are subverting the right to information by making citizens transparent and naked before the digital panopticon and synopticon and by making beneficial owners and donors of ruling parties non-transparent.

(Interviewee: Gopal Krishna is a researcher on philosophy and law, his area of current work is focussed on the "Philosophy of digital totalitarianism)

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