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India: Letter from Eminent Citizens to Data Protection Committee

9 November

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Rethink Adhaar

Press Release

November 6, 2017

Eminent jurists, concerned citizens write to Justice Srikrishna seeking more balance and greater transparency in Data Protection Committee

The Government of India has constituted a Committee of Experts to deliberate on a data protection framework for India. This committee is important because it will lead to a legislation which will lay the contours of privacy in India; building up from the historic judgment passed by a nine-member Constitution Bench of the Supreme Court of India. The privacy judgment, in fact, refers to this committee, whose work will have a bearing on the collection and use of data by commercial entities as well as for projects such as Aadhaar.

This committee is chaired by Hon’ble Justice Srikrishna, in whom there is complete faith and not a shred of doubt.

Other members, listed below, are potentially biased towards Aadhaar or against citizen privacy and there are probable professional conflicts of interest (information provided is only indicative and what exists in the public domain):

Smt. Aruna Sundararajan, Secretary, Department of Telecom: The DoT is currently pushing Aadhaar-mobile linkage and Smt. Aruna Sundararajan has stated that linking SIMs with Aadhaar “is in your interest and my interest”

Dr Ajay Bhushan Pandey, CEO, UIDAI: Leading the Aadhaar project all over the country and who, even before the work of this committee is complete, has already stated that the “Aadhaar Act will pass privacy test”.

Dr Ajay Kumar, Addl Secretary, MeitY: who states that “[MeitY] & Banks urge inking Bank account with Aadhaar”.

Prof Rajat Moona, Director, lIT, Raipur: has launched an Aadhaar tech product and, many Aadhaar leaks notwithstanding, believes that “UIDAI offer safe solutions”.

Dr. Gulshan Rai, National Cyber Security Coordinator: “is the man more than any other in charge of various acts of blocking and censorship under the last regime” and “at a roundtable meeting … [where civil] society and the technical community were conspicuous by their absence … [as] civil society organisations were not invited and attempts to elicit an invitation from the DIT were spurned”.

Prof. Rishikesha T. Krishnan, Director, IIM, Indore: thinks that Aadhaar should be used to “to start maintaining health records on the cloud”, which is highly sensitive personal data of a citizen.

Dr. Arghya Sengupta, Research Director, Vidhi Centre for Legal Policy:

Appeared for the state of Haryana and TRAI in the Right to Privacy case and argued against the Supreme Court recognising a fundamental right to privacy.

Has “represented the Unique Identification Authority of India in the Supreme Court” (includes the Binoy Viswam Aadhaar-Pan Case).

Rohini Nilekani, spouse of Nandan Nilekani (former Chairperson UIDAI), is a patron of Vidhi Centre for Legal Policy who has given them funding.

Vidhi Centre for Legal Policy is “a New Delhi-based think tank that assisted the government of India in drafting the Aadhaar Act” and its regulations.

Authored an article titled, “Aadhaar project: Last chance for the welfare state”.

Ms. Rama Vedashree, CEO, DSCI: who, despite several leaks of Aadhaar data, believes that “the core of Aadhaar seems safe and secure”.

Joint Secretary, MeitY: The ministry is “promoting Aadhaar in a big way

Those troubled by the lack of diversity in points of view in the committee and its lack of transparency included eminent jurists, such as Justice A. P. Shah, who headed a similar committee in the past, and Prof. Upendra Baxi. Other concerned citizens include Gopalkrishna Gandhi and many petitioners in the Aadhaar related cases that will be heard by the Constitution Bench of the Supreme Court in the end of November 2017. Their plea to Justice Srikrishna sent on November 5, 2017 is attached with this mail.

This letter follows a letter by former civil servants to Prime Minister Modi with critical concerns on Aadhaar.

As a first step towards greater transparency in the working of this committee, Rethink Aadhaar demands public release of the following:

  • All available information related to the formation of the expert committee.
  • The data protection bill drafted by MietY that is being considered by this committee.
  • Composition of the working groups that have been formed.
  • Minutes of all the meetings and complete information relating to the formation of this committee.

We hope that this will be followed with a change in its composition and greater transparency.

The letter signed by eminent jurists, Aadhaar petitioners and other concerned citizens is posted below.

To,
Hon’ble Justice (Rtd.) Shri B.N. Srikrishna
Former Judge, Supreme Court of India
Chairperson, Committee of Experts on Data Protection Framework Email : bnsrikrishna[at]gmail.com; srikrishna[at]nic.in
 
November 5th, 2017
 
Dear Hon’ble Justice Srikrishna,
 
Subject: Letter of concern on the Office Memorandum No.3(6)/2017-CLES dated July 31, 2017, constituting a committee of experts to deliberate on a Data Protection Framework
 
This letter is the initiative of Rethink Aadhaar – a group of concerned citizens who have come together to examine the lack of regulations and guidelines in use of various forms of data using technology. We are alarmed and dismayed at the potentially grave implications of large databases curtailing fundamental rights and democratic principles. The most glaring example of gathering and disseminating such data is Aadhaar.
This group of concerned citizens is worried about non-transparency in the “Committee of Experts to deliberate on and recommend a data protection framework for India”. Its composition and selection of members is also problematic.
 
While we are confident that you and your office will strive to be fair and balanced, we would like to place before you the matter of inadequate representation within the committee. It is desirable that the composition of the committee should be diverse to bring in various opinions, on what is now a contentious issue, into the deliberations of the committee. It would also help to bring the point of view of the citizen within the privacy and data protection draft framework, particularly with regard to issues of consent.
 
It is vital that the idea of consent be central to the proposed data protection framework. The framework must be both relevant to people and take into consideration Indian realities, so that citizens are able to differentiate between manufactured and informed consent. Consent must be understood in the context of the interconnectedness of data to many aspects of democratic principles and rights. There can be no argument that data protection is not merely about the protection of data but really about the protection of people.
 
This is an effort to restrict and make accountable the powers of the state and commercial entities involved in these activities. Given the current scenario where ‘data is the new oil’, any understanding of the impact of policy will necessitate the inclusion of civil society members who have been examining the impact of such initiatives on democratic rights. This includes matters of privacy, surveillance, aggregation of data, the commercial collection of data and its use and, more broadly, data used to restrict constitutional and other rights.
 
Another critical aspect of the data protection framework is to define a complementary relationship between the right to information and the right to privacy. For this, we strongly recommend the inclusion of representatives of the Right to Information movement.
 
Most members on the current committee have in the past voiced or echoed views that seem to support Aadhaar, the brand created by the UIDAI. Some have even taken stands in the Supreme Court to challenge the fundamental right to privacy. A committee created to look at a fundamental issue which will impact this country needs to be balanced and cannot be biased towards one position, particularly when there might be conflicts of interest.
 
There is a precedent set by the Government of India where the drafting privacy and data protection law included people from varied backgrounds. One such attempt was through the Justice A.P. Shah Committee that submitted its report on October 16, 2012. This report brought in the views of many sectors of civil society. This practice may be seen as a positive precedent, and we strongly urge that it be followed in the composition of the current committee as well.
 
In view of the fact that your committee allows for co-option, we request you to please consider including the names of eminent citizens who have been consistent in advocating for peoples’ rights. We believe their induction in the committee will increase diversity and ensure that civil society voices are adequately represented while deliberating on a complex code of far-reaching importance. The wealth of experience such people could bring to the committee should not be underestimated.
 
We further ask you to kindly take steps to ensure high transparency in the working of the committee. We would like to put forth the suggestion that all meeting notes may be made available to citizens, and submissions by members be pro-actively disclosed, as the deliberations proceed. We strongly urge that all documents referred to by the committee in their deliberations be shared publicly, and contemporaneously, to enable meaningful engagement with the work of the committee. Further, we trust that when a draft of the recommendations is prepared, it will be put up for public consultation for wider input.
 
As people who use digital technology every day for communication, banking, research, travel bookings, security, entertainment, as well as for the more efficient delivery of welfare benefits, we have concerns about the data and platforms being generated through all these activities and their use. We would be grateful if you could meet some of us and give us the opportunity to further discuss these issues in detail.
 
We hope you would consider this letter as part of the pre-legislative process in the creation of a data protection framework.
 
With thanks and regards,
 
• Justice (Retd.) A. P. Shah, Former Chief Justice of Madras High Court and former Chief
• Justice of Delhi High Court Amit Bansal, Rethink Aadhaar
• Amrita Johri, National Campaign for People’s Right to Information (NCPRI) and Satark Nagrik Sangathan (SNS)
• Anjali Bharadwaj, National Campaign for People’s Right to Information (NCPRI) and Satark Nagrik Sangathan (SNS)
• Dr. Anupam Saraph, Former governance and IT advisor to Goa’s former Chief Minister Manohar Parrikar
• Aruna Roy, National Campaign for People’s Right to Information (NCPRI) and Mazdoor Kisan Shakti Sangathan (MKSS)
• Prof. G. Mohan Gopal, Former Director, National Judicial Academy, former VC/Director, National Law School of India University, Bangalore
• Gopalkrishna Gandhi, Former IAS officer and diplomat and former Governor of Bihar and West Bengal
• Indira Jaising, Founder of Lawyers Collective and former Additional Solicitor General of India
• Prof. (Retd.) Jagdeep Chhokar, Indian Institute of Management, Ahmedabad and Founder of Association for Democratic Reforms (ADR)
• Kavitha Kurugranti, Alliance for Sustainable & Holistic Agriculture (ASHA) Nachiket Udupa, Rethink Aadhaar
• Nikhil Dey, National Campaign for Peoples Right to Information (NCPRI) and Mazdoor Kisan Shakti Sangathan (MKSS)
• Praavita, Rethink Aadhaar
• Prashant Bhushan, Public Interest Lawyer and Activist; Founder member of the Swaraj Abhiyan
• Major General S. G. Vombatkere, Petitioner in Aadhaar related case in Supreme Court Shantha Sinha, First Chairperson of National Commission for Protection of Child Rights
• T M Krishna, Carnatic singer and winner Indira Gandhi Award for National Integration and Ramon Magsaysay
• Prof. Trilochan Sastry, Indian Institute of Management, Bangalore and Founder of Association for Democratic Reforms (ADR)
• Uma Chakravarti, Historian and democratic rights activist
• Dr. Upendra Baxi, Professor of Law, University of Warwick, former VC, University of Delhi and University of South Gujarat, Surat
• Venkatesh Nayak, National Campaign for People’s Right to Information (NCPRI) and Commonwealth Human Rights Initiative (CHRI)
• Wajahat Habibullah, First Chief Information Commissioner and former Chairperson, National Commission for Minorities
 
CC:
 
1. Shri Ravi Shankar Prasad
Hon’ble Minister Law & Justice, Electronics & Information Technology, mljoffice[at]gov.in
 
2. Shri Ajay Prakash Sawhney
Secretary (Electronics & Information Technology) secretary[at]meity.gov.in