Aadhaar Act and
Artificial Intelligence paves the way for jurimetrics, the death of justice as
we know it
In the moment of
Uber-isation and Ola-isation of services, wherein an app links a supplier with
a consumer via a platform and the app provider may be based in one country, the
supplier in another and the consumer in a third, the imminent verdict on the
unjustness of Aadhaar Act has put the five judges of the Constitution Bench of
Supreme Court on trial. It has emerged that the problem that beset the trial
judges also engulfs the appellate judges. Allowing present and future
Presidents, Prime Ministers, Judges, military personnel, poets and citizens and
even non-citizens to be biometrically “profiled to the nth extent for all and
sundry to know” by 12-digit Unique Identification (UID)/Aadhaar number for Central
Identities Data Repository (CIDR) is indefensible.
The trust which
the lawyers of Ministry of Electronics and Information Technology (MeitY)'s
Unique Identification Authority of India (UIDAI) and its proponents wish the
judges of the Constitution Bench to place in the certainty and guidance of UID
technology, Artificial Intelligence (AI) technology, computer prediction and
statistical inquiries tantamount to predicting human judicial behavior through jurimetrics.
This non-human turn ends up promoting use of symbolic logic, behavior models,
mechanical aids for prediction of both individuals and groups to eliminate
personal element from judicial, administrative and political decisions.
A decision in
favour of UIDAI will imply accepting infallibility of computer prediction
without factoring in the “Heisenberg feed-back effect” and the alchemy of
machine learning. While judges work in open (having learnt that sunlight is the
best disinfectant), the computer programmers and their visible and invisible beneficial
owners work behind the scene. If 24x7 identification and authentication of
citizens and residents is deemed constitutionally permissible by electronic and
biometric systems then the possibility of trial by fallible these very systems
too cannot be ruled out in the immediate future. The fact remains that these
systems have beneficial owners and these technologies are not class and caste
neutral as they reflect the prejudices of the programmers of all shades. This
will add up yet another layer of automated inequality amidst continuation of gross
rampant historical inequality.
Attempts at
predicting human behavior including judicial behavior through these
technologies will have unprecedented collateral damage. It is destined to
fail.
The
Record of the Proceedings before the Supreme Court's 5-Judge Constitution Bench
for 10 May, 2018 reads: "Hearing concluded. Judgment reserved" in the
case related to world’s biggest Central Identities Data Repository (CIDR) of 12
–digit biometric Unique Identification (UID)/Aadhaar numbers. Now the second
judgment in the UID/Aadhaar case can be pronounced on any of the coming days.
The final hearing began on 17 January, 2018. The original case was filed on 18
October 2012. The
documents and submissions in the UID/Aadhaar case
which has been submitted in the Supreme Court by 16 lawyers (from both sides)
in the course of the final hearing can be found here.
The first verdict in
this case was pronounced on 24 August, 2017 by a 9-Judge Constitution Bench.
The 5-Judge Bench comprises of Chief Justice Dipak Misra and Justices A.K.
Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan. The 9-Judge Bench
comprised of Chief Justice Jagdish Singh Khehar and Justices J. Chelameswar,
S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D.Y.
Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.
As
part of his joint order in the right to privacy, Justice D.Y. Chandrachud dwelt
on the flawed verdict of the four judges of Supreme Court’s 5-Judge
Constitution Bench in ADM Jabalpur v Shivakant Shukla delivered on the
black day of 28 April, 1976. The submission of the detenues in the Court was
that the suspension of the remedy to enforce Article 21 does not automatically
entail suspension of the right or the rule of law and that even during an
emergency the rule of law could not be suspended. A majority of four judges of
this Court (Justice H R Khanna dissenting) held that: “Liberty is confined and
controlled by law, whether common law or statute. It is in the words of Burke a
regulated freedom. It is not an abstract or absolute freedom. The safeguard of
liberty is in the good sense of the
people and in
the system of
representative and responsible
government which has been
evolved. If extraordinary powers are given, they are given because the
emergency is extraordinary, and are limited to the period of the emergency.”
Justice Chandrachud has held: “The judgments rendered by all the four judges
constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to
human existence.” The fact is that it was not just seriously flawed; it was profoundly
immoral, unpardonable, sinful and monstrous. The verdict in ADM Jabalpur case
was authored by the evil personified.
Justice
Chandrachud observed: “When histories of nations are written and critiqued,
there are judicial decisions at the forefront of liberty. Yet others have to be
consigned to the archives, reflective of what was, but should never have been.”
In order to compare this highly questionable verdict of Chief Justice A.N. Ray
and Justices M. Hameedullah Beg, Y.V. Chandrachud and P.N. Bhagwati, drawing
from Siddhartha Mukherjee’s The Gene: An Intimate History, Justice
Chandrachud recalled that the decisions like the one of the US Supreme Court in
Buck v Bell ranks amongst those which should never been delivered. In the
Buck v Bell case of 1927, Justice Oliver Wendel Holmes Jr. opined that:
“three generations of imbeciles is enough” and accepted the forcible
sterilization of Carrie Bucks as
part of a
programme of state
sponsored eugenic sterilization. Bucks’s abdomen was opened. A
section of both fallopian tubes of her was removed by John Bell, the doctor. He
tied the ends of the tubes, and sutured them shut. With this the chain of
heredity was broken when this first case was operated under the law which
presumed that imbecility can be inherited. Holmes wrote, “The principle that
sustains compulsory vaccination is broad enough to cover cutting the Fallopian
tubes” under the influence of junk science called Eugenics which was promoted
because American and European White people were worried about the contamination
of their gene pool if interracial marriages and marriages with African slaves
and White immigrants is allowed.
British colonial power had suspect identification offices in Egypt and
India after the development of biometric identification by Sir Francis Galton,
an English eugenicist who supported slavery that compiled data of suspects. In
the book Imprint of Raj: How Fingerprinting was born in Colonial India,
Chandak Sengoopta reveals how biometric identification technique was fine-tuned
by Bengal Police. Eugenics and slavery has long been abandoned, the scientific
claims of biometrics too have been found to be dubious by reputed official institutions. Biometric UID/Aadhaar
project assumes every resident of India to be a suspect. The proponents of
UIDAI’s project are treating residents and citizens worse than prisoners who
are regulated by Identification of Prisoners Act, 1920, an Act to authorize the
taking of measurements including finger-impressions and foot-point impressions-
and photographs of convicts and others. It a sister Act of Prisons Act, 1894.
UIDAI’s paper titled Analytics - Empowering
Operations states, the “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”. The simile
of water flow for data flow reveals the sensitivity of the controller and owner
of the grids- be it water grid, power grid or data grid. There are economic and
military forces at work that seem to seek centralization of every conceivable
resource unmindful of its cognitive consequences and civilizational cost.
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.
The second verdict in the UID/Aadhaar case is
significant after the verdict on right to privacy in the context of 360 degree
surveillance of citizens and their activities. As per Privacy Bill, 2011,
"surveillance as covertly following a person or watching a person, placing
secret listening or filming devices near him, or using informants to obtain
personal information about him". This Bill has been referred to in the privacy
verdict.
The provisions
of Aadhaar Act must be read with the provisions of Collection of Statistics
Act, 2008 which defines “informant" in Section 2 (c). Informant can be any
person, who supplies or is required to supply statistical information and
includes an owner or occupier or person in-charge or his authorised
representative in respect of persons or a firm registered under the Indian
Partnership Act, 1932 or a co-operative society registered under any
Co-operative 9 of 1932. Societies Act or a company registered under the
Companies Act or a society registered under the Societies Registration Act,
1860 or any association recognised 21 of 1860, or registered under any law for
the time being in force. Unlike the 1953 version of Collection of Statistics
Act, 2008 Act provides for collection of data from “economic, demographic,
scientific and environmental aspects.” The Collection of Statistics Act, 2008
makes it compulsory for individuals, households and companies to share
information required by government through data collectors which it has hired
on contract. If one failure to do so, then one will have to face a maximum
penalty of Rs 1,000 in case of individuals and Rs 5,000 for companies.
This makes
individuals and households totally transparent devoid of even an iota of
privacy but donations to political parties from foreign and Indian companies
have been made anonymous by the amendments of 2017 and 2018 in the Companies
Act, 2013 through the Finance Act of 2017. As per amendment in Companies Act,
2013 made through Finance Act 2017, companies can make unlimited donations to
parties while remaining faceless. The Finance Bill, 2018 which has been passed
and awaits President’s assent has changed the
definition of what constitutes a foreign company. While
the original Foreign Currency Regulation Act of 1976 defined
a foreign company as one with over 50 per cent foreign
ownership, thereby disallowing the companies owned by foreign nationals or
Indian-origin people based abroad and with foreign citizenship, to fund and
influence political parties in India, the amendment moved in 2016
via the Finance Act sought to change what it meant to be a foreign
company altogether. If these amendments are read with the
e-commerce related legislations including Aadhaar Act it is apparent that UID/Aadhaar
project is a subset of universal project which entails rewriting
the political geography of the country forever.
Given the fact that Aadhaar Act is one of the two
e-commerce laws, it is germane to recollect that at the 11th
ministerial of World Trade Organisation (WTO) which concluded in December 2017,
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. The WTO
has a 1998 Work Programme on e-commerce. This Work Programme provides for the
discussion of trade-related issues relating to e-commerce to take place in the
relevant WTO bodies like the Council for Trade in Services; the Council for
Trade in Goods; the Council for TRIPS; and the Committee for Trade and
Development.
In recent times, proposals are being pushed by some developed countries to negotiate new rules in addition to the existing ones in the WTO Agreements with regard to e-commerce amidst vehement opposition by many developing countries including India because it goes beyond the 1998 mandate. Since the 1998 WTO Ministerial Conference when Members adopted a temporary moratorium of not imposing customs duties on electronic transmissions, this moratorium has been renewed at the WTO Ministerial Conferences. Global trade remains open and closed for strategic reasons. It is increasingly evident that trade in services and non-agricultural products is going to acquire electronic route in near future in a dramatic manner. “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”. It emerges that WTO’s Work Programme of 1998 is linked to India’s e-commerce and privacy related legislations like Aadhaar Act, IT Act, Collection of Statistics Act and Consumer Protection Bill. As per Consumer Protection Bill, 2018 e-commerce means “buying or selling of goods or services including digital products over digital or electronic network”. Aadhaar Act defines “service”. Service means any provision, facility, utility or any other assistance provided in any form to an individual or a group of individuals and includes such other services as may be notified by the Central Government. This implies that “service” can be impregnated with more meaning than it currently has. In the light of submissions in World Trade Organisation (WTO), it is increasingly becoming apparent that “goods” can be made to mean “services”.
Constitution Bench on UID/Aadhaar matter is all
set to deliver its verdict amidst the possibility of civilian and non-civilian military
applications of UID being bulldozed by commercial entities in order to store
and read biometric and DNA script of present and future Indian citizens in the
aftermath of the sequencing of Human Genome for epigenetics, vested interest of
pharmaceutical industry, big data entities, social control technology companies
and inhuman aspects of inheritance, eugenics and genetic determinism. The
cumulative effect of these efforts has the potential to make digital
colonization full proof through data colonization in what is being called the
Fourth Revolution by the World Economic Forum which has also launched a Global
Redesign Initiative to make nation states appear like medieval residues or
redundant. The verdict on Aadhaar Act, the e-commerce law will come in a
backdrop of Henry Kissinger’s
observations in his book World Order: Reflections on the Character of
Nations and the Course of History wherein he claims that “Cyberspace has
colonized the physical space and, at least in major urban centres, is beginning
to merge with it.” It is not a coincidence that all the proponents and
supporters of UID/Aadhaar are city folks.
Prof Nicholas Negroponte, author of Being
Digital has already explained how world trade has traditionally consisted
of exchanging atoms, not bits. Bits form the basis of cyber world. He predicts
that “Like a mothball, which goes from solid to gas directly, I expect the
nation-state to evaporate without first going into a gooey, inoperative mess,
before some global cyber state commands the cyber ether. Without question, the
role of the nation-state will change dramatically and there will be no room for
nationalism than there is for small pox”. Arguments of Negroponte and Kissinger
imply that national law is beginning to become irrelevant for cyber world given
the fact that cyber law is essentially global law.
This creates the possibility of the
country getting colonized yet again by the asymmetry of information created
through information, communication, identification, AI and surveillance
technologies because it is now realized that all empires have been information
and communication based regimes. Notably, it has been accepted that aadhaar number
data is entered in various applications. In order to enter quality data of aadhaar
numbers, UIDAI felt the need to validate the entered aadhaar number. Therefore,
“UIDAI has recommended Verhoeff algorithm for validating the same. Based on the
same, component has been developed to validate the aadhaar number entered in an
application.” AI based machine learning algorithms, in which computers learn
through trial and error has been deemed to be a new form of "alchemy"
by AI researchers who admittedly “do not know why some algorithms work and
others don't, nor do they have rigorous criteria for choosing one AI
architecture over another”. This assumes significance given the fact that Rakesh
Dwivedi, UIDAI’s lawyer has admitted in the Court that “UIDAI is using matching
algorithm.”
Countries like USA, UK, China, Australia and France
have rejected biometric profiling based identification projects like aadhaar.
This is open declaration of war against citizens’ sensitive personal
information like biometric data by transnational entities and governments captured
by them paves way for the enslavement of generations to come through aadhaar
database that lies on cloud beyond Indian jurisdiction. This create a
compelling logic to factor in the findings of Julian Assange and Edward Snowden
who have put their lives at risk to tell Indian government, Indians and others
that they are being spied upon by foreign governments, banks and transnational
surveillance technology companies. Unless judges factor in the ungovernability
of these technologies and their beneficial owners present and future
Presidents, Prime Ministers, judges, legislators and officials handling
sensitive assignments may become redundant with reference to their age old
roles for securing “national resources and assets”.
If jurimetrics is not a wise and certain way
of decision making in legal disputes, if eugenics is now a discredited science how
can AI and biometrics be deemed sane in the matters of life and death of
present and future generation of Indians. Galton advocated three things: slavery,
eugenics and biometrics. Two of his beliefs have been debunked; the
Constitution Bench has the choice of joining the ranks of Eugenicists like him,
Justice Holmes, Doctor Bell and the bench of ADM Jabalpur to promote biometrics
or to declare Aadhaar Act as a black Act.
Dr Gopal Krishna
The author had
appeared before the Parliamentary Standing Committee on Finance that examined
the Aadhaar Bill and the Parliamentary Standing Committee on Food, Consumer
Affairs and Public Distribution that examined the Consumer Protection Bill. He
is editor of www.toxicswatch.org and is the
convener of Citizens Forum for Civil Liberties which has been working on
UID/Aadhaar issue since 2010.
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