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Archive for the ‘RTI Act’ Category

Secrecy, privacy and property rights

access denied

Rahul Gandhi alleged, during last week’s doomed-from the-start no-confidence motion in Parliament, that corruption in the 2016 agreement signed by the Narendra Modi government to purchase 36 Rafale fighter jets from France had forced defence minister Nirmala Sitharaman to backtrack from her assurance to disclose details of the price of purchase.

Parliamentary subterfuge – unnecessary, if there is nothing to hide

The matter could have been ended by Ms Sitharaman admitting that being new, she had overlooked the confidentiality clause – a plausible explanation since military purchases are a tough, black box to unravel. Instead, the government chose to hit back by pinning the blame on a 2008 bilateral security agreement signed by the then UPA government with France. This needed both parties to protect classified information which could compromise the security and operational capability of the defence equipment of either.

It is quite a stretch to argue that keeping the price paid a secret meets the test of “necessity” or “proportionality” which guide how much a citizen’s right to know can be restricted. The Chinese or the Pakistanis couldn’t care less what the Indian taxpayer shelled out for the fighter jets.

They likely already know the specifications of our purchases. But at the same time corruption cannot be lightly presumed to be the reason why Ms Sithraman backtracked. Expect this unresolved debate to hang like an ominous cloud as the counter to the BJP’s allegations of corruption during the previous UPA government.

The underside of unrestrained privacy

Privacy is to individuals what secrecy is to the State.  The debate on privacy got muddied by the recent arraignment of WhatsApp for being the conduit of fake news, which incited vigilante violence and hate crimes.

WhatsApp encrypts content in its pipes end-to-end like no one else. Complete secrecy attracts 1.5 billion active monthly users and 60 million messages per day. Its end-to-end encryption cannot even be decrypted by its own administrators. This rabid commitment to secure the privacy of its users doesn’t align with the extant law and is as over-the-top as is our government’s thirst for secrecy. The fundamental right to privacy is restricted by other fundamental rights, including public order, security and those embedded in Article 21 of the Constitution of India, to which privacy was also mapped by the Supreme Court in 2017.

A fundamentalist view on the right to privacy has spawned “dark”, impenetrable means of communication, like WhatsApp. This is a precursor of what could happen if the “dark web” becomes the norm. Similarly, if crypto currencies are allowed to subvert a sovereign’s power to issue currency and bury crime-related financial transactions underground, catastrophe beckons.

WhatsApp managers initially expressed technological helplessness to regulate the unsavoury use of its technology. They are now making conciliatory noises with an eye to their bottomline. Non-compliance could jeopardise their application for adding-on a payments app in India.

Psst! I have a secret

Secrets

Why has WhatsApp been allowed to linger on and not simply told to shut shop, as is China. The bottom-up view is that encrypted communication has wide appeal across political parties and individuals. We all have secrets.

WhatsApp democratises the power to have secrets, unlike the Official Secrets Act 1923, which locates this power only within the State. WhatsApp allows everyone to have secrets. This suits freewheeling democratic India.The last word on the privacy of digital data will be from the Justice B.N. Srikrishna Committee on data protection. This committee, appointed in August 2017, has worked in unprecedented grand isolation. Presumably, things have been decided behind closed doors and the collective wisdom will be revealed in due course.

TRAI recommendations on data privacy and security mundane, at best 

But in chaotic India, surprises are routine. Days before the report was to be submitted, the Telecom Regulatory Authority of India (Trai) published, on July 16, 2018, its recommendations on privacy, security and ownership of data. The TRAI recommendations are unlikely to make the committee pause and think again. It is already broadly agreed that the individual’s ownership of data is paramount. But both the fundamental right to privacy and the right to property over data are restricted. If the necessary safeguards exist to mask sensitive and personal information, the plea of privacy loses force for denying access to data, at least to the State.

Artificial intelligence requires masses of data to train machines to think and behave better than humans. Anonymised data aggregated across a large number of individuals is more valuable than oil, in order to understand and predict contextual human behaviour.

Who is “Free riding” on data?

The debate on free riding on data has focused on how aggregators free ride on individuals data. However, if an aggregator “pays” explicitly for using individual data, ownership over data should stand transferred to the aggregator. Consider that in touristy locations across the world, locals demand a fee to be photographed. Such contracts, for non-anonymised data, with adequate safeguards, should be encouraged not pushed underground.

With respect to strictly anonymised data the right to deny or withdraw access to, despite adequate masking safeguards, can be viewed as anti-development and also at a stretch anti-national. At the very least, denying or withdrawing access to anonymised data should attract a cost to be paid, since it amounts to “free riding” on the technological benefits gained by others providing their anonymised data.

TRAI has passed up an opportunity to assert that the ownership of anonymised aggregate data should vest with the entity doing the aggregation if a specific contract exists with the data generator (app user). This needs to be clarified to retain the value proposition in data aggregation.

A market for anonymised data

Conversely, TRAI has ignored the need for a market to price data. A market exists even today. But it is an informal and non-transparent market which hurts the commercial interests of the individual data owner and puts the controller or processor of data in the driver’s seat. This information asymmetry can be removed through innovative institutional development to ensure that individuals are not shortchanged and have to sell their data cheap – much like innocent tribals selling their land for peanuts. If data is the new oil, it must priced accordingly.

Restore property as a fundamental right 

demolition

We have grossly neglected property rights in general and specifically in the context of  data management. Civil society mostly focuses on safeguarding the privacy aspect of data management. There is a reason for this. Unlike privacy, the right to property stopped being a fundamental right in India in 1978. This makes it difficult to challenge laws infringing on property rights.

Conversely, the higher judiciary has been indulgent in admitting public interest litigation  (writs) challenging laws threatening fundamental rights generally, so privacy gets privileged legally over property. Privacy rights also align with the need to decriminalise gay sex. It is an emotive issue. In comparison, a right to property seems almost crass, where 60 per cent of people own no land or electric consumer durables; 40 per cent of households live in just one room and can fit their possessions into a gunny sack.

But make no mistake. Socialism erred in hiving-off the right to property from human rights. Property is intrinsic to the right to privacy and liberty. But we will have to keep arguing till we fix this error, eventually.

Adapted from the author’s opinion piece in The Asian Age, July 24, 2017 http://www.asianage.com/opinion/oped/230718/whatsapp-row-on-secrecy-privacy-property.html

Lives dedicated to change India

RTI story

This is not a glib account of mobilising the rural poor, penned by a peripatetic babu or a drive-in-fly-out development expert. It is, refreshingly, a record of activists, who elected to spend the better part of their working lives making a difference, bottom upwards, and three decades later remain rooted in their karmbhumi — village Devdungri, Rajasthan.

school for democracy

Some came from well-off urban backgrounds and yet stuck it out in the harsh and relentless realities of the rural poor. This testifies to their commitment. But even to attribute high moral incentives to them, betrays the tinted glasses of this urbanised reviewer. The authors do not vent their frustration, voice their regrets or betray even a whiff of resentment against an uncaring world. What shines through instead, is their quiet joy and fulfillment, at doing something useful.

Aruna Roy, for all her careful attempts to disperse the credit, is the central figure. Born into a family of lawyers, she drifted into the elite Indian Administrative Service in 1968 but resigned in 1975 to work with the Social Work and Research Center (SWRC) in Ajmer. Clearly, goaded by the need to be more immediately and directly involved with real people in rural India, she left SWRC in 1983. Nikhil Dey — recently returned after college in the United States, seeking something beyond a comfortable life, became a friend; Shanker Singh, a local village official’s gifted son, adroit puppeteer and communicator extraordinaire, completed the group which bonded and decided to check out the rural empowerment landscape in Jhabhua, Madhya Pradesh. That seed did not flower. But bonds between the three deepened.

They resolved, in 1987, to put down roots in village Devdungri, which today is part of district Rajsamand in the Mewar region of Rajasthan. This was close enough to Shanker’s village, Lotiyana, to give the group an entry into rural life through his local bonds of kinship. Here, in a mud hut, rented from his cousin, the small group lived like the villagers around them and awaited a gradual immersion into the rhythm of village life and hopefully, local social acceptance — their doors and hearts open. Trust and credibility is central to an activist’s effectiveness.

MKSS

Meanwhile, the group refined the credo of their concerns. These coalesced around the need to enable the rural poor and marginalised, to look beyond their sordid reality of traditional social and cultural constraints, to understand and avail of, the constitutional rights available to them, within India’s democratic and institutional architecture. The disastrous drought, blighting the region, presented an opportunity. The standard mechanism for drought relief was to initiate civil
works.

By 1983 the Supreme Court had directed that public works must comply with payment of minimum wages. But this was rarely done. The group resolved that getting workers minimum wages would be their central concern. A related opportunity arose due to the tyrannical ways of a local sarpanch who misappropriated village development schemes for personal benefits and whose benami holdings encroached on village land.

In both cases, empowering the poor meant getting access to the government records of money allocated by the government for different schemes; the amounts spent, on what and when. At that time ordinary citizens could not access these records as a right. Often mistakenly, even a list of Below Poverty Line cardholders was conveniently construed to be secret. Consequently, in any dispute with government entities — around wages or non-inclusion for welfare schemes “the villagers were always the liars”. They had no way to prove their case because the truth was hidden inside the official records, to which only the government had access.

Getting the dispossessed to appreciate that access to information and knowledge is vital, was the easiest part. The awareness that local government intermediaries were swindling them kindled anger, and sometimes outrage among villagers. While the immediate oppressor is visible and becomes vulnerable, the veiled support of those higher up in the hierarchy, maintains the status quo. Getting villagers their rights, means changing the status quo from the top.

The political vehicle used by Aruna and her activist colleagues to generate awareness; the desire for change and an ecosystem for long-term support to deliver rights to the rural poor was the Mazdoor Kisan Shakti Sangathan (MKSS). The artful, determined and collaborative way in which it was constituted, and the strategic depth of its functioning is a delight to read. The ideological roots of the MKSS lie in the life and thoughts of Gandhi ji (non-violent protests against government apathy), Babasaheb Ambedkar (equity and dignity for all) and J.P. Narayan (social and political revolution within constitutional constraints).

The movement for access to political and social rights, formally started in 1987, expanded organically over time from the village level to the state level by the mid-1990s and finally to the national level by 2005, when the Right to Information Act was passed by Parliament. Parivartan, the Delhi-based NGO, headed at the time by Arvind Kejriwal, evolved its strategy of “direct democracy” from the MKSS methodology — a mix of rootedness in organising the poor from within; high moral, ethical and personal values; imaginative use of local folklore and theatre like the Ghotala Rath to lampoon corrupt politicians; careful research to unearth government information to pinpoint negligence, fraud or corruption using the vehicle of Jan Sunwais (public hearings).

Less successfully the MKSS also branched into directly managing kirana (provisions) stores in villages as a competitive force to make local traders less rapacious and reduce their profit margins. While useful as a temporary local intervention to break a trader cartel in a small village market, this model proved difficult to scale up. The MKSS also dabbled in village-level elections to get some of its well-intentioned members, elected and collaborate with like-minded parties. But it is far from transmuting into a political party.

Aruna and the team

Aruna, 41 years of age in 1987, is 72 today, Shanker is 64 and “young” Nikhil is 55. During the last three decades of their struggle, the Right to Information has been embedded into the accountability structure of the State, bringing the much-needed transparency. But making the State accountable to the people, in real time, is a broader unfinished task — top-down accountability and bottom-up participation, both need deepening. The good news is that the indefatigable trio is upbeat about conquering this frontier too.

This book is a must read for cynics, who want their optimism restored; those eager to share the pain and the joy of activism; organisational behavior “experts” and budding activists looking for pathways to India’s development.

Adapted from the author’s book review in The Asian Age, April 22, 2019 http://www.asianage.com/books/220418/read-it-to-know-the-pain-and-joy-of-activism.html

Bleeding heart liberals are social hypocrites

hypocricy 2

Graphic credit: chloesimonevaldary.com

Yasmina Reza’s God of Carnage — playing in Mumbai and Delhi — makes us laugh at ourselves by stripping bare the self-serving hypocrisy underlying socially acceptable roles. Bleeding-heart Indian social liberals would do well to see themselves in the mirror via this play.

Admittedly, we humans must get beyond our basically brutish nature. But the first step to doing this is not to be in denial about the brute within us. Narendra Modi baiters are particularly delusional about themselves.

For them Mr Modi is forever damned because of the Gujarat riots in 2002 and because he refuses to atone at the altar of “secularism” that Indira Gandhi embedded in the Constitution in 1976 along with the subsidiary altar of “socialism”.

We have, since 1990, correctly turned a Nelson’s eye to the latter as has the rest of the world. But liberals fear that both the right (Rashtriya Swayamsevak Sangh, Bharatiya Janata Party) and the left (communists), are so committed to their own political “ideology” that they aim to substitute liberal democracy with state authoritarianism.

The left has made itself redundant in India, so the real threat to liberalism is from the Modi government. The examples used to illustrate the increasingly “heavy hand” of the state are the clamp down on NGOs — Teesta Setalvad and Greenpeace; the attempt by the executive to reclaim the power to appoint higher judiciary; and current administrative practices like the “gag order” by home minister Rajnath Singh on officials hobnobbing with the press.

Are, then, Prime Minister Modi’s intentions subversive?

First, let’s consider the alleged attempt to misuse official authority to muzzle NGO critics.

Misuse of authority can only be assessed in two ways — either via the judicial process or via loss of public support, as happened resoundingly in 1977. Indira Gandhi was damned by the judicial process before being damned by the electorate post-Emergency.

In Mr Modi’s case, no adverse judicial outcome taints him. His significant popular mandate is likely to be re-endorsed in the Bihar state elections later this year. The Opposition has a majority in the Rajya Sabha and the judiciary remains generously tolerant towards public interest litigants. Both checks are working well. With respect to the “gag order”, post the RTI legislation, access to public information is institutionalised. Yes, news hounds can no longer get “breaking news” easily, but that is no great loss.

Second, when was India ever a social, liberal democracy? Mahatma Gandhi was a social liberal, like Jawaharlal Nehru and Muhammad Ali Jinnah, but the tactics he used show that the country was not. That is why he mobilised the majority via religious means — bhajans and kirtans.

By preferring Nehru as the de facto Congress leader to Jinnah (who was never much of a hard-core Muslim), the Mahatma bowed to his political assessment that the Hindu majority would not accept anyone except a co-religionist as their leader. This was good realpolitik and has been the broad political trend since Independence.

After Independence, none of the national parties — the Congress, the Janata Dal, leave alone the BJP — have ever had anyone other than a Hindu as their supreme political leader. The only recent exception is Sonia Gandhi of the Congress. But even her links into politics are exceptionally pucca, upper caste Hindu. The Communist Party of India (Marxist), which is meant to be areligious, has had only one non-Hindu — a Sikh, Harkishan Singh Surjeet — as its general secretary from 1992 to 2005.

Indians feel comfortable being led by those who are from their own social group. For national issues religion and caste are the bonding factors. For state level elections, caste is the major factor; at the village level it is sub-caste or clan. This is hardly a characteristic of a liberal democracy.

The liberal political elite do a great disservice by spinning the myth of a liberal India. A more honest assessment would be of India as a seething cauldron of competing social groups held in balance by quasi-colonial state power. Recognising oneself, as I said earlier, is the first step to reconciliation and reform.

In a democracy, numbers count. To protect itself, minorities either have to increase their numbers, as the Hispanics and blacks are doing in the US, or they have to stay below the radar while aligning broadly with the majority goals. The US, a land of immigrants, has no qualms about requiring everyone to be American — in language and in culture, such as it is. France is even less tolerant of cultural or linguistic deviance. In comparison, India adjusts to linguistic, religious and cultural diversity. But till the Hindu population is in a majority they shall dictate the music to be played, as they have done since 1947.

India has remained an “administered” democracy of the colonial style — the spirit is scarce but bells and whistles abound — albeit better administered than it was pre-Independence. Prime Minister Modi’s moves are merely a muscular rendition of what all directly elected Prime Ministers did prior to 1989. Thereafter, coalition governments diminished the stature of the Prime Minister, who, in terms of formal powers, is more powerful than the American President. Those who have been socialised only during the last two decades of “coalition dharma”, when listless governance was the norm, need not be alarmed at the vigorous use of the available constitutional powers.

Any real democracy merely reflects the norms and aspirations of the people. This is the central conundrum of the Arab Spring that ended up fanning radical Islam instead of modernising North Africa and West Asia.

Urban folks worry too much about the seeming frailty of Indian democracy. They also exaggerate the role played by the media, civil society and intelligentsia as the bulwarks against its demise. The real custodians of democracy are the enormous variety of vertically and horizontally arrayed social groups, each negotiating to safeguard its own special interests and societal norms. By their very presence they illustrate that there is a competitive market for political power in India. Unsurprisingly, as in any market, bargaining power in a democracy is with the majority. But every market has to be regulated to be efficient and equitable. That is what Parliament and the judiciary are expected to do in our system. If democracy ever dies, it is these two institutions which will be responsible, not the executive or the people of India.

Adapted from the authors article in Asian Age July 29, 2015 http://www.asianage.com/columnists/hypocrisy-socialist-liberals-635

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