29 September 2018

Aadhaar: Techno-Capitalism, Constitutionalism, and Patriarchy

Law, technology, capitalism, and patriarchy make for a potent combination which, if not handled carefully, may become toxic. The Aadhaar project, which could conceivably be used as an instrument with which to enforce patriarchy on steroids, if care is not taken to avoid such an eventuality, exemplifies this. At the moment, it seems reasonably clear that privacy concerns related to Aadhaar aren't entirely unfounded. What isn't clear is the extent to which Aadhaar-related privacy concerns are valid and how they could manifest.

In a troubling judgment where the majority and the minority disagreed not only on matters of law but on basic issues of fact, the Supreme Court largely upheĺd the constitutional validity of Aadhaar and effectively mandated that each individual’s Aadhaar number be linked to their PAN card and be mentioned in their IT returns which, along with requiring an Aadhaar number to avail of government subsidies, likely means that almost everyone will have to participate in the project. The Court did curb Aadhaar demands by private companies although it isn't clear if companies' demanding PAN numbers, which are, in any case, necessary for most financial transactions, could lead to Aadhaar linkage by proxy.

ARPU projections (which quantify the Average Revenue Per User) in light of the Supreme Court's Aadhaar decision do not yet appear to be in the public domain. Once they are made, they'll probably determine how India Inc.'s response to the Aadhaar judgment will play out. After all, if there is one factor capitalism is sensitive to, it is money. 

ARPU projections may also effectively act as econometric analyses of the value of a person's life, if only by accident. After all, compromised privacy can have a direct impact on whether or not a person remains alive. Revealing a person's location and the establishments they frequent can, for example, put them at risk of being targeted at those places by those who would harm them.

Such information relating to location and lifestyle would anyway perhaps be available to a person out to do harm provided they asked the right people. The difference with Aadhaar which induces particular fear is that it potentially provides much more information to malefactors with much less effort on their part. Enhancing concerns is the lack of clarity about what the situation would be if an Aadhaar number had already been linked to a service either directly or by proxy through a PAN number.

The disclosure of information may well be entirely unlawful but it has to be borne in mind that unlawfulness doesn't necessarily mitigate the harm caused by disclosure and, communal concerns aside, social reality ensures that a weeping husband seeking his 'missing' wife, for example, cuts a sympathetic figure even if, unbeknownst to others, she's missing only because she's escaping his abuse. So, too, does a distraught parent or sibling looking for a relative who has married 'out of caste' in the face of family opposition. A third party has no way to know whether a tearful reunion will follow the disclosure of information or an honour killing.

It isn't clear that there are adequate practical safeguards against wrongful disclosure or to ensure that persons whose data is revealed are notified each time a disclosure takes place so as to enable them to take what precautionary steps they can. In effect, this means that anyone who lives in fear of social and familial violence is potentially permanently unsafe and forced to continually endure in a heightened state of alertness.

Although the technology at play does not architect for violence, it does not seem to have adequately architected for safety either. The social environment in which it operates, being patriarchal, serves to enhance safety concerns. And the legal construct in which the technology is deployed legitimises it through an understanding of the rule of law which appears to prioritise social order and not individual safety.

Early on in its judgment, the Supreme Court referred to Dicey (1835-1922) to explain what constitutes the Rule of Law. “The essence of rule of law is to preclude arbitrary action,” it said, continuing, “Dicey, who propounded the rule of law, gave distinct meaning to this concept and explained that it was based on three kindered [sic] features, which are as follows: (i) absence of arbitrary powers on the part of authorities; (ii) equality before law; and the (iii) Constitution is part of the ordinary law of the land," and, although it strayed into our own time, repeatedly referencing both contemporary jurists (including a former Chief Justice of Israel) and individual rights, the foundation of the Court's understanding seems to have been built on a conception of legality drawn from Dicey's Rule of Law.

The Rule of Law is, of course, basically an implementation plan for the social contract in which men supposedly freely and voluntarily submitted to the State, granting it legitimacy and pledging it obedience in order to create order from the chaotic state of nature. Women were co-opted into the social contract. This was presumably achieved through a preceding sexual contract which gave men legal dominion over women, as Carole Pateman memorably suggested. After all, there is no other way in which the social contract, which largely ignores women and which was developed at a time when married European women rarely had the right to contract independently due to coverture, could have been successful.

Dicey himself appears to have supported both patriarchy and the British imperial project which derived its theoretical legitimacy, in no small measure, from the racial hierarchies developed by white men during the Enlightenment which, unsurprisingly, put themselves on top of the pyramid, so to speak.

Drawing on the understanding of Dicey hardly seems appropriate in a world that's supposedly striving towards gender and racial equality. Nominally, anyway. The validity of the Rule of Law is being challenged in the context of colonialism which saw no dearth of entirely legal atrocities against colonised peoples. It may well be worth extending those enquires so as to vigorously interrogate the potential unlawfulness of the Rule of Law in other contexts too, and to challenge the idea that being lawful is akin to being acceptable.

Ultimately, what we need is a conception of the Rule of Law which is viscerally sensitive to individual rights and which does not allow what should be inalienable rights to be sacrificed at the altar of social order. It is not immediately apparent that the understanding of the Rule of Law which the Supreme Court has adopted in its Aadhaar judgment, and which appears to underlie its rationale, is an understanding that is entirely shorn of the sexist and racist baggage of the past.

In the context of Aadhaar, there are still several unknowns. That it is lawful for society is not identical to its being safe for the individual simply because it could, depending on how it is used, increase security risks exponentially. The challenge now is to shape the techno-legal environment in which Aadhaar exists and operates to ensure that it is unquestionably safe for the most vulnerable amongst us. 

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