Multipurpose national ID cards: Some concerns

The celebratory mood regarding the Multipurpose National ID Card project needs to be tempered with some introspection as to how it might impact data protection and privacy rights. In the absence of data protection laws and effective privacy-related legislation, the risk of misuse of the information held by the State should not be underestimated. Further, since much of the data will be collected and processed by private companies, ensuring accountability will be difficult if strong safeguards are not in place.

My organization, the South Asia Human Rights Documentation Centre (SAHRDC), had raised some of these concerns in a 2007 article, reproduced below:

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Multi-Purpose National Identity Cards: Protection or restriction of rights?

In May 2007, the Indian Government launched a pilot project on Multi-purpose National Identity Card (MNIC) and issued cards in select regions of the country in contemplation of later implementing a nation-wide identification system. The Ministry of Home Affairs (MHA) claims the identification system will strengthen national security while facilitating efficiency in e-governance. The system will gather the personal data of Indian citizens—including gender, age, marital status, permanent address, names of family members—into a national register, the maintenance of which will be outsourced to a group of technology corporations. Each citizen will be assigned a specific number that will be used as a reference for various socio-economic databases including passports, driving licenses, and for accessing health care and education. The government hopes that the MNICs, which will require regular editing and maintenance, will ease interactions between the State and the citizen, and keep track of illegal immigrants. However, upon further examination of the MNIC system, it is clear that it has flaws that could jeopardise the fundamental rights of India’s citizens.

Impact on the right to privacy

The right to privacy of citizens will be greatly compromised if MNICs are made compulsory. Although there is sometimes a tension between individual privacy rights and national security, international law and India’s domestic law expressly set a standard in tort law and through constitutional law to protect an individual’s privacy from unlawful invasion. Under the International Covenant on Civil and Political Rights (ICCPR), ratified by India, an individual’s right to privacy is protected from arbitrary or unlawful interference by the state. The Supreme Court also held the right to privacy to be implicit under article 21 of the Indian Constitution in Rajgopal v. State of Tamil Nadu. Moreover, India has enacted a number of laws that provide some protection for privacy. For example the Hindu Marriage Act, the Copyright Act, Juvenile Justice (Care and Protection of Children) Act, 2000 and the Code of Criminal Procedure all place restrictions on the release of personal information.

Privacy is a key concern with respect to the MNIC scheme as all of an individual’s personal information will be stored in one database where the possibility of corruption and exploitation of data is far greater than when having the information disbursed. Risks that arise from this centralisation include possible errors in the collection of information, recording of inaccurate data, corruption of data from anonymous sources, and unauthorised access to or disclosure of personal information. Other countries with national identification systems have confronted numerous problems with similar risks such as trading and selling of information, and India, which has no generally established data protection laws such as the U.S. Federal Privacy Statute or the European Directive on Data Protection, is ill-equipped to deal with such problems. The centralised nature of data collection inherent in the MNIC proposal only heightens the risk of misuse of personal information and therefore potentially violates privacy rights.

In consideration of the risks involved in the creation of a centralised database of personal information, it is imperative that such a programme not be established without the proper mechanisms to ensure the security of each individual’s privacy rights. Unfortunately, India’s proposed MNIC programme lacks any provision for judicial review at the present time. Without credible and independent oversight, there is a risk of ‘mission creep’ for MNICs; the government may add features and additional data to the MNIC database bureaucratically and reflexively, without re-evaluating the effects on privacy in each instance.

Discrimination as an outcome

Furthermore, the implementation of a national identification system represents a vast increase in police power—a troubling prospect given the state of Indian policing and the excessive control of the Executive in its functioning. Indian police and other security forces have a history of abusing their power, from torturing those in their custody and setting up fake ‘encounter deaths’ to more mundane abuses like petty corruption and harassment. Such police abuses typically go unpunished. Thus it does not take a large leap of imagination to expect that some in the security services would abuse the MNIC programme—whether to discriminate against minorities, carry out arbitrary arrests and detentions, facilitate the targetting of opposition groups by political parties in power, and perhaps even blackmail people. According to Simon Davies of Privacy International, national ID cards in virtually every country where they have been introduced have facilitated discrimination. India need only consider the history of national identity cards in other countries and the history of police misconduct within its own borders to realise the potential threats that the MNIC scheme poses. Any perceived advantages of the MNIC programme must therefore be weighed against these very real costs.

As the former Privacy Commissioner for the Australian state of Victoria Paul Chadwick argued, the responsibility of proving whether one is acting lawfully or not should be on the state, not on the citizen. He gives examples of precautions taken to prevent abuse of police power in countries with centralised personal identification databases including parliamentary scrutiny, judicial review, statutory regulators, and protection for whistleblowers, but he argues that even these mechanisms are not enough to completely keep bureaucracies honest.

In the United States, there is at present a debate concerning the implementation of the REAL ID Act, which is meant to regulate all U.S. state-issued identification cards at a national level. As Professor Mark Rotenberg of Georgetown Law Center explained in a report to the Electronic Privacy Information Center, new stronger precautions are needed because of evidence of abuse of police power through security measures such as the REAL ID Act and the Patriot Act. Rotenberg suggests that an effective way to monitor how government uses the information it collects is to have entities independent of the government conduct oversight, and he adds that the potential abuse of police power will remain until there is effective judicial oversight of the use of the collected information.

Issue of access

Although a widely-implemented MNIC programme risks violating individual privacy rights and facilitating security forces’ violation of other fundamental rights, an MNIC programme that leaves some people outside its reach carries its own risks of denying human rights. The MHA seeks to make the possession of the card a prerequisite for citizens who wish to avail of certain governmental schemes, such as passports, driving licenses, health care, school enrolment and the like, in order to encourage all citizens to obtain one. Thus, no card, no services.

Switching to an MNIC system for the delivery of social services could result in the denial of fundamental rights of equality to Indians left without a card. Under Articles 13 and 14 of the Indian Constitution, the fundamental rights of citizens must be protected by the state, and the government is required to follow a policy consistent with the goals of equal opportunity and justice for all. Millions of Indians are at risk of never receiving MNICs and therefore may be excluded from accessing certain services, denied the freedom to travel, or prohibited from certain employment opportunities. The likelihood that MNICs will not reach all of India’s one billion plus citizens is high considering the government’s historic inability to account for everyone within the national borders. This is illustrated by the shortcomings of India’s electoral photo identity card (EPIC). According to records obtained from the Election Commission by the Hindustan Times, over 186 million Indian citizens eligible to vote do not posses EPICs even though the programme was created over a decade ago.

Proponents of the MNIC programme argue that people without MNICs could use alternative means of identification in order to obtain benefits until they are incorporated into the MNIC system. But those without MNICs—most likely the poor and members of tribal groups—would almost certainly also lack other sufficient forms of identification for the simple reason that they have never needed any. There is also the related issue concerning directive principles of the state policy in Part IV of the Indian Constitution. Among other things, the directive principles provide that the government should make laws with a view to ensuring for each citizen equal rights to an adequate livelihood, and social and economic equality and justice. Denying minority tribal groups or the rural poor certain government services and entitlements based on the lack of an MNIC is contrary to the guidelines set out by the directive principles. The net result of the MNIC programme may be a denial of access to government services in such a disproportionate and discriminatory manner that it would amount to violation of the fundamental right to equality.

Conclusion

The concerns mentioned above do not necessarily mean that India’s planned MNIC programme must be discarded, but they signal a need for oversight to protect the privacy and equality rights of India’s citizens from the inherent risks of a national database for personal information. Implementing and maintaining the MNIC system will generate high costs along with risks to safety, security, privacy, freedom, and liberty. MNICs should not become compulsory until there is an established judicial overview to ensure that the privacy rights of India’s citizens are not unlawfully violated. It is important that India confront and manage these risks and consider all alternatives before implementing the MNIC programme nationwide.

Source: Human Rights Features

Lalgarh: The futility of the law-and-order approach

It is disappointing to see that the preferred State approach to the recent events in Lalgarh in West Bengal continues to be framed in terms of ‘law and order’. Whatever happened to the Central government’s 'blueprint', drawn up less than two years ago, that had envisaged various development initiatives in addition to security-strengthening measures in order to counter the Naxalite insurgency?

In the following article, published in August 2007 in the Rights and Development Bulletin of the Centre for Development and Human Rights (New Delhi), I had argued for a human rights approach perspective on the Naxalite insurgency. The problem is knotty but not irreparable. But the State must first break out of its security-first mindset…

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The Naxalite Insurgency – Time for a New Strategy

In early October 2007, the Central government drew up a “blueprint” to counter Naxalism, the armed Maoist movement that is spread across nearly half of India’s states. The plan reportedly includes various development initiatives in addition to measures to strengthen the security set-up in those areas.[1] It can only be hoped that the development approach will be give adequate attention and emphasis.

The Naxalite insurgency, for the most part, has been conceptualised as a security issue. Using that approach, the Indian government has taken a number of measures to stamp out the insurgency, but the movement shows no signs of abating. It must be recognised that it is a social, economic, cultural, and political problem just as much as it is a security issue. It is an outgrowth of wider societal ills, and therein lies the crucial human rights dimension of the conflict.

Taking the state of Chhattisgarh as an example, this article will recommend a number of reforms which, taken together, would significantly undermine the appeal of armed revolution.

Education

Over the past decade, education in Chhattisgarh has improved substantially. Since the launch of the Education Guarantee Scheme (EGS), according to which a new school is opened whenever the parents of 30 or more children petition the state government to set one up, literacy has improved for both males and females, enrolment has gone up, and dropout rates have been reduced.[2] Around 255,303 children are currently enrolled in EGS schools.[3] This is clear evidence that Chhattisgarh is moving in the right direction.

It is absolutely essential that the government of Chhattisgarh preserve and further these positive developments. The most obvious way to accomplish this would be to continue the highly successful EGS, and to ensure that the schools opened under the scheme maintain a high standard of academic quality. High pupil-to-teacher ratios are a major obstacle to educational advancement, so the government should take active steps to increase the number of qualified teachers in the state. This can be accomplished by offering higher salaries and better benefits to teachers, as well as by putting greater emphasis on the development and recruitment of teachers within Chhattisgarh. It is also vitally important to ensure that schools remain distanced from the ongoing Naxalite conflict, and that school buildings are not used by security forces for shelter or for any other purpose.

Health

Improving public health in Chhattisgarh is a complex undertaking, yet this goal can be achieved through sustained attention and investment. The most glaring need is to provide universal access to medical care— because Chhattisgarh’s dense forests and poor infrastructure make transportation difficult, many rural-dwellers are not within reach of basic medical facilities or trained health professionals. One promising strategy for rectifying this situation would be the continuation and expansion of the local-level community health programmes that have been so successful in reducing infant mortality. Even where it is financially or logistically impractical to build a hospital, the government should ensure that each village has immediate access to trained doctors and nurses, as well as to basic medical equipment that can be used to provide at least a rudimentary level of care. Training more healthcare professionals would therefore be advisable, as would offering better compensation packages to doctors working in rural areas and working in concert with international bodies and NGOs to supply medical resources to neglected areas.

Land reform

Although the underlying causes of the Naxalite movement are complex and multifaceted, it is clear that conflicts over land are at its core. The vast majority of India’s rural poor is landless and enjoys very little upward mobility.[4] Overall, the landless and the near-landless (owning less than half an acre of land) make up 43 percent of rural Indian households[5], thus creating a steep socio-economic inequity that supplies much of the impetus for the Naxalite movement.

Tenancy reforms, and land reforms in general, have fallen well short of their objectives, and the consequent discontent of poor rural Indians has been vital to the Naxalite resurgence. Legal ambiguities, inadequate enforcement, and landlords’ practice of rotating tenants to prevent them from acquiring ownership rights are obstacles that must be tackled for land reform to succeed.

Forest rights

The issue of forest management has also long been contentious in India, pitting the interests of developers and industrialists against the rights of indigenous tribal communities that depend on forests for sustenance. The long struggle of indigenous peoples to preserve their rights over ancestral lands has played a pivotal role in the recent spread of the Naxalite movement— most new Naxal recruits are reported to be poor tribals.[6] In the hope of alleviating the problems facing forest-dwelling tribals, the Central government adopted the Provision of Panchayat Extension to Scheduled Areas Act (PESA) in 1996. Although PESA presented a bold reform package on paper, implementation has left much to be desired, with many state governments yet to operationalise the reforms that the Act was to have brought about.

Similarly, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 sought to improve upon the draft Scheduled Tribes (Recognition of Forest Rights) Bill. It rightly made the envisaged reform measures more inclusive. However, this, coupled with the later cut-off date and higher land ceiling, gives state governments and local elites more room to exploit the situation.[7] Moreover, it is likely to create or worsen local conflicts between tribal communities and non-tribal indigenous peoples, and between indigenous forest-dwellers and those who have only recently settled on forest land, often at the expense of the traditional inhabitants.[8] These problems will be worsened by the Act’s failure to create a voluntary resettlement programme for forest-dwellers who wish to relocate, a provision that might defuse nascent conflicts over forest lands.[9]

The 1988 National Forest Policy, PESA, and the 2006 Forest Rights Bill were all steps in the right direction, but until they are fully implemented and given more legal muscle to safeguard the rights of vulnerable forest-dwellers, the deep-rooted conflict over forest lands will continue to feed into the Naxalite insurgency.

Economic opportunities

A lack of economic opportunities in the countryside is one of the main spurs to the expansion of the Naxalite movement. Alienation arising from heavy-handed government and corporation-run development projects, coupled with endemic rural poverty, has given the Naxalite insurgency much of its forward thrust in recent years.[10]

The National Rural Employment Guarantee Act (NREGA) 2005, which was intended to improve the economic conditions of the rural poor, suffers from a number of practical difficulties. These are exacerbated by corruption, confusion and mismanagement, which brought the programme to a standstill in some states.[11] Careful revision and substantial improvements in the implementation of the NREGA, coupled with making credit available and affordable, would go a long way in reducing rural poverty and taking the edge off the armed Maoist campaign.

Rule of law

The foremost responsibility of a government is to provide security to its citizens, but democratic institutions lose their integrity when a government seeks to impose this security by extra-legal means. The government must come to the forefront and cut off its support for the unaccountable Salwa Judum militia. More than that, it must put a definitive end to the culture of impunity by which the Salwa Judum has thus far been allowed to operate. Special courts should be set up to examine and prosecute human rights abuses by Salwa Judum members, including but not limited to extrajudicial killings, illegal detentions, and torture.

Citizens must also be assured the full range of civil and political rights without which democracy would not be worthy of the name. One recent piece of legislation— the Chhattisgarh Special Public Security Act 2005— is sharply inimical to this end, and will only serve to clamp down on essential freedoms and exacerbate the climate of fear and arbitrariness that allows the Naxalite insurgency to thrive.

Conclusion

Because it is the product of a complex confluence of factors, the law-and-order approach, by itself, will not help erode the Naxalite armed movement. This does not, however, mean that the problem is irresolvable. Through a comprehensive, holistic, carefully crafted and implemented series of positive steps aimed at improving the conditions of its poorest citizens, the Indian government can chip away at the foundations of rural discontent upon which the movement is built.

Success in combating the Naxalites cannot be attained through strictly law enforcement means, and the government must therefore break out of its security-first mindset if it hopes to quash the insurgency. The Naxalite movement is shadowy, decentralized, and elusive: it cannot be overwhelmed with a crushing display of force. It will not die with a bang, but it might fade if the problems that fuel it are meaningfully addressed. That is why the human rights perspective on the Naxalite insurgency is so instructive: it illuminates the underlying causes of Naxalism rather than the effects. The Indian government would do well to analyse the problem through the lens of human rights, and use a broad-based, non-security strategy to resolve it.

Notes

1. Aloke Tikku, “Centre declares war on Naxals”, Hindustan Times, 3 October 2007.
2. United Nations Development Programme (UNDP) and Government of Chhattisgarh, “Human Development Report: Chhattisgarh 2005,” 2005, p. 104. Available at http://www.undp.org.in/index.php?option=com_content&task=view&id=239&Itemid=322.
3. Ibid.
4. Andrew Foster and Mark Rosenzweig, “Democratization and the distribution of local public goods in a poor rural economy,” Bureau for Research and Economic Analysis of Development (BREAD) Working Paper No. 10, January 2003, at p.3. Available at http://www.cid.harvard.edu/bread/papers/working/010.pdf (last accessed 15 October 2007).
5. Patralekha Chatterjee, “Land reform in India: Necessary but not sufficient to fight poverty,” D+C Development Cooperation, March 2002, at http://www.inwent.org/E+Z/1997-2002/de202-8.htm (last accessed 15 October 2007).
6. “A Spectre Haunting India,” Economist, 17 August 2006. Available at http://www.economist.com/world/asia/displaystory.cfm?story_id=7799247 (last accessed 15 October 2007).
7. Ashish Kothari, “Rights and promises,” Frontline 23(14), 15-28 July 2006. Available at http://www.flonnet.com/fl2314/stories/20060728000706400.htm.
8. Ibid.
9. Ibid.
10. Rajat Kumar Kujur, “Underdevelopment and Naxal movement,” Economic and Political Weekly, 18 February 2006.
11. “Staff shortage, delayed wages under NREGA in Ranchi,” The Financial Express, 25 June 2007. See also Manoj Prasad, “Corruption clouds UPA job scheme,” The Indian Express, 23 May 2007.