India’s First Metadata case: Why No to Bio-Political Tattooing through Aadhaar Number Online Database? Part 7 | Gopal Krishna

If you think IT is the solution to your problem, then you don’t understand IT, and you don’t understand your problem either.
— Roger Needham, a noted computer scientist

If the constitution of a state is democratic, then every exceptional negation of democratic principles, every exercise of state power independent of the approval of the majority, can be called dictatorship.
— Carl Schmitt, the Nazi philosopher in his essay ’On Dictatorship’ (1921)

इंडी गठबंधन वाले जब ईवीठम का विरोध करते हैं तो मैं सिरॠफ ठक चॠनाव के रूप में नहीं देख रहा मैं मानता हूं ये लोग मन से पिछली शताबॠदी के सोच वाले लोग हैं, वे टेकॠनोलॉजी का महतॠव ना समठते हैं ना टेकॠनोलॉजी सॠवीकार करने को तैयार हैं और ये सिरॠफ ईवीठम में दिखाई दिया ठसा नहीं यूपीआई में दिखाया जब हमने कहा कि हिंदॠसॠतान के लोग डिजिटल टॠरांजेकॠशन करेंगे फिनटेक की दॠनिया में आज हिंदॠसॠतान का नाम हो गया मानने को तैयार नहीं, आधार आज देश की पहचान बना है मैं तो देख रहा हूं कि मॠठे कई देश कहते हैं हमें आधार की पदॠधति से आगे बढ़ना है आप कैसे मदद कर सकते उस आधार को रोकने के लिठसॠपॠरीम कोरॠट में बार.. बार.. बार.. बार जाकर के परेशानियां पैदा की यानी मूलत: ये पॠरगति के विरोधी, आधॠनिकता के विरोधी, टेकॠनोलॉजी के विरोधी इंडी अलायंस हमने देखा है। (When INDI alliance people oppose EVM, I am not seeing it as just an election, I believe that these people are people with the thinking of the last century at heart, they neither understand the importance of technology nor are they ready to accept technology. It was seen only in EVMs, not like it was shown in UPI when we said that the people of India will do digital transactions. Today India has become famous in the world of FinTech. Not ready to accept, Aadhaar has become the identity of the country today.I am seeing that many countries are telling me that we have to move ahead with the Aadhaar system, how can you help. They have created problems by going to the Supreme Court again and again to stop that Aadhaar. Basically, we have seen that INDI Alliance is being anti-progress, anti-modernity and anti-technology.)
— Narendra Modi in his address to NDA Parliamentary Meet on June 7,2024

As a caretaker Prime Minister Narendra Modi referred to the controversial Aadhaar Number Online Database case which is pending before the 7-judge Constitution Bench of the Supreme Court, in his address to the NDA Parliamentary Meet on June 7, 2024, disregarding the alarming findings of the audit report of Comptroller Auditor General (CAG) of India regarding the functioning of the Unique Identification Authority of India (UIDAI). By doing so, he attempted to influence the outcome of a case which is sub judice. His silence about the Action Taken Report on CAG’s audit report, which has not been tabled in the Parliament as yet, is deafening. His reference to Aadhaar Number Online Database case must be seen in the context of his government’s reply in the Parliament on the subject of "Action Taken Report on CAG’s audit on the functioning of UIDAI". Ministry of Electronics and Information Technology had informed Lok Sabha on July 22,2022 that CAG’s audit report has been accepted and uploaded on http://apms.nic.in. The fact is that it has not been uploaded as so far. In such a backdrop, the Constitution Bench is all set to decide the constitutionality of Aadhaar Act. This law paves the way for indiscriminate surveillance of all the present and future Indians in collaboration with foreign firms and governments.

A Constitution Bench headed by the 50th Chief Justice of India (CJI), Dr. D.Y. Chandrachud has issued directions for the pre-hearing steps in various matters before 7-judge Constitution Bench and 9-judge Constitution Bench including matter related to enactment of Aadhaar Act as Money Bill. In its October 12, 2023 order, it instructed that the compilation of documents, pleadings, precedents must be filed in three weeks along with written submissions.

It is germane to recall that the Supreme Court’s decision dated November 13, 2019 had referred the illegitimate enactment of Aadhaar Act as “Money Bill†for consideration by a 7-Judge Constitution Bench to hear the Roger Mathew v. South India Bank Ltd case as a consequence of the verdict by the 46th CJI led 5-Judge Constitution Bench. This 46th CJI led bench detected a unprecedented blunder in the majority verdict dated September 26, 2018 by 45th CJI, Dipak Misra Justices A. K. Sikri, A.M. Khanwilkar and Ashok Bhushan regarding Money Bill and UID/Aadhaar being a 12-digit number, not a "card". As part of of the blunder Justice ( now retired) A.K. Sikri tortured the word "resident" in Aadhaar Act/Money Bill verdict. As the author of the majority order, he compelled “resident†word to confess that it has two names, its other name is "citizen". He empowered himself with such unlimited power he will have the world believe that "resident" word can be tortured to confess that it is the same as "citizen". But such third degree torture of words has failed to get its meaning changed from the dictionary. The 7-judge Constitution Bench is likely to save every “resident†of India from automatically becoming “citizen†without their consent.

Notably, every person including the public institutions, parties, editors, donors, advertisers and judicial officers who refer to 12-digit unique identification (UID) number branded as "Aadhaar" as “card†betray their colossal ignorance about the world’s biggest data transfer project. This is a unique number that can be authenticated digitally, not a “card†. The UIDAI is responsible for the processes of enrolment and authentication and “other functions†assigned to it under Planning Commission’s notification dated January 28, 2009 and subsequently Aadhaar Act, 2016. These “other functions†include ownership of “Central Identities Data Repository†(CIDR), a centralised database in one or more locations containing all Aadhaar numbers issued to Aadhaar number holders along with the corresponding "demographic information and biometric information of such individuals and other information". The “other information†includes metadata which is under the control of UIDAI as part of its “other functions†.

After Government of India, State Governments, academic and media institutions, the High Courts and the promoters of CIDR of Aadhaar numbers were proven wrong by the 9-judge Bench of the Supreme Court with regard to their flawed claim that right to privacy was not a fundamental right, a 5- Judge Bench led by 45th CJI was set up. Justice Sikri (on behalf of 45th CJI, himself and Justice A.M. Khanwilkar), Justice Dr. Chandrachud and Justice Ashok Bhushan pronounced three separate judgments as part of the 5-Judge Bench. Justice Bhushan agreed with the Justice Sikri authored order on the enactment of Aadhaar Act as Money Bill. Justice Dr. Chandrachud disagreed with them and termed the enactment of Aadhaar Act as Money Bill for Aadhaar Number Online Database, as a fraud on the Constitution of India.
Database State, a report from the United Kingdom revealed how the old maxim, ’If you have nothing to hide, you have nothing to fear’ has been given a very public burial. The report states, ’In October 2007, Her Majesty’s Revenue and Customs lost two discs containing a copy of the entire child benefit database. Suddenly issues of privacy and data security were on the front page of most newspapers and leading the TV news bulletins. The millions of people affected by this data loss, who may have thought they had nothing to hide, were shown that they do have much to fear from the failures of the database state.’ Likewise biometric databasing is a giant leap towards totalitarian control by data mining companies. It turns citizens into subjects and suspected criminals who can be kept under leash by control over sensitive personal data. Through convergence each data can be transformed into a sensitive data.

If consent for it is granted by uninformed citizens then citizens become a number on a computer of a state actor or non –state actor engaged in so-called ‘welfare’ services. This automatically creates a file on each citizen. In an effort to appear harmless, it is claimed that the file would contain very little information but it has come to light that it is being linked to ‘preventing terrorism’, ‘stopping crime’ or ‘protecting children’ etc. This in turn creates logic for profiling and tracking citizens based on their financial transactions, mobility, religion, caste, region, orientations, health records, driving record etc.

Right to privacy and freedom belong to citizens as a natural fundamental right. It is not granted by government. A government is the servant of the citizens, not its master. Governments are supposed to seek the permission to limit these rights in certain circumstances. If the State and non-State actors chooses to engage in indiscriminate surveillance of citizens or to impose a system of compulsory identification or to open a file on each citizen or to criminalise citizens who refuse to comply, it signals a break-down of a democratic government. This break-down is being naturalised and normalisedwith the connivance of all the ruling parties at the behest of their donors.

When political candidates stood up for elections and sought votes did they seek the mandate to put the voters under unlimited and endless surveillance?
The ’database state’ is the tendency of the state and non-state actors to use computers and biometrics to manage society by putting people under watch by mouthing benevolent schemes and excuses.

Databasing people is akin to modern day enslavement by those who are wedded to the faith in property based democracy. Slavery by whatever name is wrong.

It is apparent that non-state actors have prevailed over state agencies to adopt "Transformational Government" initiative. It might sound good unless one comprehends that what is being transformed is not government but it is power over citizens under the dictates of non-state actors.

This was attempted by the Tony Blair led Labour Party Government which misled the world and its own citizens about Iraq having nuclear, chemical, and biological weapons programme although he knew that it was not true. Not surprisingly, the UK citizens could see through the fraudulent misrepresentation and voted for the coalition of David Cameron-Nick Clegg. As UK’s Deputy Prime Minister Nick Clegg said, “This government will end the culture of spying on its citizens. It is outrageous that decent, law-abiding people are regularly treated as if they have something to hide. It has to stop. So there will be no ID card scheme. No national identity register, a halt to second generation biometric passports†in the British House of Commons. Clegg added, “We won’t hold your internet and email records when there is just no reason to do so. Britain must not be a country where our children grow up so used to their liberty being infringed that they accept it without question. Schools will not take children’s fingerprints without even asking their parent’s consent. This will be a government that is proud when British citizens stand up against illegitimate advances of the state.†But coalition Governments in India of all shades chooses to follow the discredited path of Tony Blair and his UK’s Identity Cards Act, 2006. Both have been abandoned.

Given the fact that ‘radical restructuring of the security architecture at the national level’ is underway, Nandan Nilekani, the then Chairman of Unique Identification Authority (UIDAI) was asked about endless tracking of citizens by converging different databases like National Population Register (NPR), National Intelligence Grid (NATGRID), National Technical Research Organisation (NTRO), Crime and Criminal Tracking Network System (CCTNS), Multi-Agency Centre (MAC), central monitoring system (CMS) , Socio Economic and Caste Census (SECC), National Investigation Agency (NIA), national cyber coordination centre (NCCC), national critical information infrastructure protection centre (NCIIPC), telecom security directorate, Public Information Infrastructure and Innovations and UID/Aadhaar Number Online Database. He responded saying, “I don’t want to talk about that.†His silence and the silence of his collaborators is deafening. But intelligence agencies be it UIDAI or any of it incarnations are known for adopting such stances.

Under NATGRID, 21 sets of databases is being networked to achieve quick, seamless and secure access to desired information for intelligence/enforcement agencies. It is quite clear that the biometric databases under creation are meant for such agencies in India and elsewhere. The Rules made under the Information Technology Act, 2000 in April 2011 provide access to any data held by any "body corporate" in India. This does not apply to body corporate of foreign origin.

In such a backdrop, there is a compelling logic for the Election Commission of India to rescind the dangerous proposal of Union Ministry of Home Affairs “to merge the Election ID cards with UID†. Such an exercise would mean rewriting and engineering the electoral ecosystem with the unconstitutional and illegal use of biometric technology in a context where corporate electoral finance remains a source of corruption and black money despite Supreme Court’s judgement against the electoral bond because corporate electoral finance enjoys bipartisan support. Even organisations like Association for Democratic Reforms appears tight-lipped about it. This is paving the way for linking of electronic-biometric UID/Aadhaar Number, Voter ID Number and the UID Number of Electronic Voting Machines (EVMs) which is not as innocent and as politically neutral as it has been made out to be. It is noteworthy that all EVMs have a UID number as well. It results into total electoral surveillance.

Surveillance is a “shameful act†of supervising and imposing discipline on a subject through a hierarchized system of policing. Michel Foucault, the author of Discipline and Punish: The Birth of the Prison examined the systems of social power through the lens of the 18th century philosopher Jeremy Bentham, the originator of the now iconic Panopticon. This Panopticon was/is a design for a prison in which the inmate’s cells are arranged in a circular fashion around a central guard tower. The architectural configuration allows for a single guard’s gaze to view all inmates, but prevents those inmates from knowing exactly when they are being watched. It was aptly observed, “The major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.â€

This design is a “generalized model of functioning and a way of defining power relations in terms of the everyday lives of men.†In initiatives like biometric identification the subject, the citizen is seen but he/she does not see. He/she is the object of information, but never a subject in communication. Foucault’s Panoptic model is quite valid biometric database because these databases are meant to ensure real time tracking and profiling of citizens and turns them into subjects and in a slave like situation.
Tumultuous colonial history of the technologies associated with surveillance reveal that the origins of surveillance happened during free trade of slaves.
Biometric Identification treats Indian citizens worse than slaves. It is an act of identification prior to any act of omission and commission. It normalises deepening of everyday surveillance. It is similar to what was done under the Britain’s Habitual Criminals Act of 1869. It required police to keep an “Alphabetical Registry†and cross-referenced “Distinctive Marks Registry. The first held names, and the latter descriptions of scars, tattoos, birthmarks, balding, pockmarks, and other distinguishing features. This registry of marks was systematically disaggregated into nine general categories pertaining to regions of the body. Therefore there were files for the head and face; throat and neck; chest; belly and groin; back and loins; arms; hands and fingers; thighs and legs; feet and ankles.

The convergence of biometric information with financial and personal data such as residence, employment, and medical history heralds the beginning of the demolition of one of the most important firewalls in the structure of privacy. Such convergence of databases poses a threat to minorities, political opponents and dissidents of all shades as they can be targeted in a situation where government is led by any Nazi party like political formations.
Late Roger Needham, a British computer scientist aptly said, “if you think IT is the solution to your problem, then you don’t understand IT, and you don’t understand your problem either.†It sounds like he was addressing the gullible citizens, political class and docile journalists.
Safeguarding of citizens’ privacy and their civil liberties in the face of an unprecedented onslaught from collection of biometric data and other related surveillance measures that are being bulldozed by unregulated and ungovernable technology companies by overawing the governments through its marketing blitzkrieg is emerging as fight between the David and the Goliath. Database State cannot be the aim of any democratically healthy Government. It is an exercise in outsourcing of governmentality to admittedly undemocratic corporate entities by making biometric identification a pre-condition for citizens to have any right.

In effect, right to have rights is being made dependent on being electronically and biometrically profiled and not on constitutional guarantees and Universal Declaration of Human Rights. This is a regressive step that takes citizens to pre-Magna carta days (1215 AD) or even earlier to the days prior to the declaration of Cyrus, the Persian King (539 BC) that willed freedom for slaves.

Giorgio Agamben, the noted octogenarian philosopher and the author of State of Exception (2005) wrote: “the West’s political paradigm was no longer the city state, but the concentration camp, and that we had passed from Athens to Auschwitz. It was obviously a philosophical thesis, and not historic recital, because one could not confuse phenomena that it is proper, on the contrary, to distinguish. I would have liked to suggest that tattooing at Auschwitz undoubtedly seemed the most normal and economic way to regulate the enrolment and registration of deported persons into concentration camps. The bio-political tattooing the United States imposes now to enter its territory could well be the precursor to what we will be asked to accept later as the normal identity registration of a good citizen in the state’s gears and mechanisms. That’s why we must oppose it.â€

The electronic-biometric identification and profiling based social control experiment which is unfolding in India is a result of lobbying by firms from US and its allies from 32-member North Atlantic Treaty Organization (NATO). It is aimed at total control of human population by transcending the rule of law in the name of the “public good†. The firms and ideologies which were involved in Nazi Germany are driving these efforts as well. Admittedly, Aadhaar Number Online Database is aimed at bio-political tattooing, which is fraught with genocidal consequences.

Should it not be resisted? Will Supreme Court’s 7-judge Constitution Bench defend the natural fundamental rights of citizens from endless unlimited surveillance using bio-political tattooing?

(Author: Dr. Gopal Krishna, is a lawyer and a researcher of philosophy and law. His current work is focused on philosophy of digital totalitarianism. He has appeared before Supreme Court’s Committees, Parliamentary Committees of Europe, Germany and India and UN agencies on the subject of national and international legisaltions. He is the co-founder of East India Research Council (EIRC). He is convener of Citizens Forum for Civil Liberties (CFCL) which has been campaigning for freedom from UID/Aadhaar/NPR and DNA profiling through Criminal Identification Procedure since 2010. He had appeared before the Parliamentary Standing Committee on Finance that questioned and trashed the biometric identification of Indians through UID/Aadhaar. He is also the editor of www.toxicswatch.org)