THE AADHAR JUDGEMENT: FLATTERING TO DECEIVE.

   There are times when there is more honour and glory in defeat than in victory. And so it is with the Aadhar judgement of the Supreme Court delivered on Wednesday. Justice Chandrachud's minority judgement may have been overruled by the majority of four judges but he has understood the core issues much better than them, articulated the inherent friction between technology and fundamental rights, and quite rightly pointed the finger at the "surveillance potential" of the Aadhar architecture and the likelihood of its being misused by any government. These are all issues which have been either totally ignored by the majority, or on which they have chosen to accept the government's words at face value.

   The judgement is an exercise in something the Supreme Court is getting extremely adept at: a "balancing" act. It did so twice previously in the same week: refusing to declare that politicians with criminal records could not contest elections but asking them to make full disclosure of such cases when filing their nominations; and refusing the Centre's plea to refer the issue of reservations in promotions to a bigger bench, while simultaneously striking down its earlier codicil of "quantifiable data" of backwardness for allowing such promotions. Such balancing may suit a trapeze artist but it is incongruous with the orders of the highest court in the land. It smacks of a certain diffidence when confronted with an aggressive government, an ambivalent approach best described by Dryden: "willing to wound but afraid to strike."

   I am afraid the judgement does no favours to the ordinary citizen of India: in fact, except Justice Chandrachud, the others have simply done what Usha Ramnathan, the eminent legal researcher and activist, describes as a "copy writing" and proof reading job of the Aadhaar Act- a punctuation corrected here, a clause deleted there, a proviso inserted here, a word replaced there. The majority judges have simply picked ( and struck down) the low hanging fruits which just could not have been allowed to hang there any longer: Section 57 which enabled private data to be shared with all and sundry corporates and private entities, Section 33(2) which allowed the government to access this data at will in the interests of "national security", Section 47 that did not allow a private citizen to lodge a complaint even when his own data had been stolen/breached. These were such brazen assaults on privacy and individual dignity that, after the Privacy judgement, they could not have been allowed to continue. Other than this, there is very little relief provided to the beleaguered citizen.

   The core and seminal issues that lie at the heart of the whole Aadhar debate have not  been seriously addressed by the majority judges: the probabilistic nature of biometric based technologies, the conflict between algorithms and rights, the potential for state surveillance embedded in the imperfect Aadhar architecture, the absence of strong data protection laws, the exclusion of millions from their entitled benefits, the complete lack of accountability of UIDAI Only Justice Chandrachud has repeatedly flagged these troubling issues while declaring Aadhar as unconstitutional for these very reasons. One of his observations bear reproducing:  "Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology."

   On these vital issues the four judges have opted to accept the government's assurances, a touching demonstration of trust and sheer gullibility given the dubious track record of the present government. They have accepted, for example, that the govt. shall legislate a robust data protection law, even though the latter has not yet even begun the process of consultation with all stakeholders. The issue about abuse of Aadhar data by state agencies has been brushed under the carpet, even though the govt. has been happily going about seeding multiple databases, is creating a national intelligence grid where all this private information can be fed, is proposing a legislation for compulsory DNA profiling of citizens, and has repeatedly defied the SC orders of 2015 to not extend the use of Aadhar to more areas. The Hon'ble judges have also inexplicably kept clear of the controversies surrounding the leakage of data of millions of people, which has been happening with regular frequency, preferring to accept UIDAI's oft repeated litany that the data is safe behind ten foot walls, when all empirical evidence suggests that it is leaking like my kitchen sink.

   The dismissal of the "exclusion" argument by the majority judges is particularly sad and lamentable. They have accepted without question the UIDAI's contention that the rate of success of biometric authentication is 99.7% even though its Chairman has admitted that in 6% cases the fingerprinting did not work, and in 8-10% cases the iris authentication was faulty. The govt's own Economic Survey 2016-17 has revealed that the failure rate in Jharkhand was found to be 49%. ( it is no coincidence that of the 24 starvation deaths attributed to Aadhaar most were in Jharkhand). One has to ask, therefore: where did the Court derive the confidence to trust the UIDAI on their claim of 99.7% success rate? And even if we accept this highly suspect figure, it still means that 4 million people have been denied their fundamental entitlements under govt. schemes. Is this so insignificant a figure that we can dismiss it's implications for the poor and marginalised?

   The unkindest cut, however, is the majority ruling that the Aadhar Act was indeed a money bill and did not have to go to the Rajya Sabha. This " fraud on the Constitution" as Justice Chandrachud correctly termed it, has been legitimised, even though the Act did not meet any one of the four criteria prescribed in Article 110(1) of the Constitution, all of which essentially require that a Money Bill should in some way have a direct bearing on either withdrawal from, or accrual to, the Consolidated Fund of India. The Aadhar Act does not even remotely do so, even though the Court bought into the govt's argument that since it involves disbursal of benefits/ expenditure under govt. schemes, it meets the requirements of Article 110. Only Justice Chandrachud saw through the chicanery shrouding this reasoning. Extending this devious logic, tomorrow even a bill on reservation or land acquisition or even Triple Talaq can be termed as a money bill because at some point or the other it will involve some expenditure by the govt! The disturbing thing about the Supreme Court's imprimatur on this "fraud" is that it will embolden this govt. to resort to this deviant practice in the future too, rendering half of Parliament superfluous to the already flawed democratic practices in our country. Oh, yes, as part of the same balancing act, the judges have held that the power of the Speaker to declare a legislation as a money bill is justiciable but that is cold comfort now that this noxious precedent has been set.

  The Court's touching faith in this govt. is totally misplaced. Noises have already been heard from some Ministers and the corporate lobby about bringing in legislation to overrule even the limited relief provided to harried citizens by this judgement. Further, in the absence of clear directions in the judgement, the govt. will exploit every grey area to adopt an ambiguous approach in issuing directions for deleting data already collected by private corporates, allowing alternate IDs where the Aadhar has failed or is not available, extending its compulsory linking to areas not specifically mentioned by the Court in its order, and so on.

   This is a judgement that cries out for review. The base for such reconsideration has been laid out by Justice Chandrachud: it is a strong foundation for a new edifice, and we can hope to see it in the future, if the past is any guide. The Court has reviewed its own orders frequently: in 1962 the majority deed not agree with Justice Subha Rao's ruling that privacy is a fundamental right, but had to backtrack on this just a couple of months ago; in 1985 in case no. AIR 1985 SC 1618 ( Sowmithri Vishnu vs Union of India ) the Court had affirmed that adultery is indeed a criminal offence, whereas just last week it has gone back on this ruling ; again, the SC had quashed a 2013 order of the Delhi High Court which had decriminalised gay sex, but again had to revise its position earlier this year; during the Emergency years it infamously held that right to life and liberty is not a fundamental right, but once again had to review this later. Both jurisprudence and society are continually evolving, and it is only a matter of time before the voice of Justice Chandrachud will be heard, loud and clear. 

HANDS OFF MY RELIGION-- WE HAVE A PATENT ON IT !

   Rolls Royce, I learn, not only has a patent on the iconic car but also imposes a condition on the buyer- if at any time it finds that the car is not being properly maintained it has the right to repossess it. The idea is that the image of the brand should not be sullied in any way. It is now apparent that the BJP-RSS combine believes it has a somewhat similar patent/ right on Hinduism. Only this conglomerate( it has more funds than most companies in India, in any case) has the right to decide the design and shape of Hinduism, the persons who can practice it, the form and substance of such practice, and the right to condemn unapproved practitioners as heretics and frauds. Competition from other brands is to be ruthlessly squashed.

   Nothing else can explain its pathological obsession with Rahul Gandhi's assertion of his Hindu credentials and the millions of bytes expended on his "janau" ( the sacred string), visits to temples, his claim that he is a "shiv bhakt". Why should this get the wind up perennially flatulent BJP spokespersons? Surely a person- dynast, outcast or iconoclast- has the right to assert his religiosity or even flaunt it during election time? After all, the BJP itself  invented this game. The BJP's paranoia with Rahul Gandhi's religion, however, plumbed new depths with its epileptic responses to the former's recent Kailash Mansarovar yatra. There appeared to be an air of panic about it, as if he had invaded their citadel. Which, in a manner of speaking, he had.

   Now, I am no great fan of Mr. Gandhi and I do believe that he occasionally does the stupidest things. Like posting the screen shot of his Fitbit to prove that he took 46000 steps on a single day on the yatra; this was to justify his claim that he completed the parikrama in just one day. This is an impossible claim, in the same class as Mr. Modi's 56 inch chest boast which even had the Great Khali trembling. The Fitbit claim was quite unnecessary and therefore naturally attracted derisive remarks on social media. Sample: the Fitbit was put on a donkey which did the parikrama. For the simple fact is that the parikrama of the Kailash is about 53 kms. over mountainous terrain, involving an ascent of 1000 meters to boot, and it would stretch the stamina of even an Iron Man athlete to do it in one day. It takes three days, provided you don't cheat. My wife and sister-in-law have just returned from there, therefore I have this information at first hand.

   But this simply betrays Mr. Gandhi's impetuosity and lack of maturity, not his lack of religiosity or an ersatz Hinduism, as the BJP has been tub-thumping. The yatra was a private affair and at no point did the Gandhi scion flaunt it as proof of his Hindu faith, or try to lend it a political colour. His initial photos on social media were also mainly about the landscape, not himself. It was only after the BJP commenced its rabid and wholly uncalled for attacks on him and started questioning the fact of the yatra itself- whether in fact he performed the journey at all, alleging that it was simply photo-op Hinduism- that he released pics of himself and his group. One erudite Union Minister, who has done his post graduation in scatology, even analysed the shadow of a walking stick in a photo to announce that it was morphed! One is, therefore, forced to conclude that the BJP will not share Hinduism with anyone else- a kind of religious oligopoly, as it were. And certainly not with the Rahul Gandhi.

   But there is more to it than just that. It is also a calculated, long-term strategy with three pincers. The first, of course, is to establish absolute hegemony over the Hindu religion- they are its sole promoters, protectors and arbiters. The second stems from its unapologetic policy of religious division of the country ( read voters). However, one of the occupational hazards of dividing an electorate as complex as India's is that you have to hang on to your share of the divided spoils for dear life and not allow anyone else to encroach on it. Even more so if in 2014 you managed to garner only 31% of the popular vote even though everything was loaded in your favour. For the BJP this means that, having spurned the Muslim and minority vote, now banking exclusively on the Hindu vote for 2019, it cannot allow the Congress any traction in attracting the Hindus ( albeit the more moderate and rational ones among them). Hence its constant endeavour to paint the Congress as a Muslim loving party- the second pincer- and deny it any Hindu space. It has been doing this relentlessly, without let up, for the last couple of years, its message amplified by a mostly spineless mainstream media, with some success. Falsehood always has the initial advantage over Truth: as someone said, the Lie was up and running even as  Truth was still tying its boot laces.

  The third part of the strategy is to demolish Rahul Gandhi's personal Hindu faith and his political secularism, not just in the eyes of the electorate but, equally important, in the eyes of the other Opposition parties. None of them want to alienate the 80% Hindu vote, the Samajwadi Party's downfall in UP still fresh in their minds. Rahul Gandhi is nothing by himself but he can be a force multiplier. If he can coalesce the others into a critical mass, that can spell trouble for the BJP. The personal attacks on him, therefore, are part of the larger strategy to discredit him as a Hindu, to turn him into a religious leper, a political untouchable no other party will want to associate with. It may work, it may not. But if it does then we shall have new gate-keepers for the Hindu faith in our country, who shall henceforth issue the bona fide Hindu certificates. What a comedown it shall be for the land of the Shankaracharyas and rishis! Did the poet foresee this?-

" Is shahar ke had mein woh din bhi likha jayega,

  Ki jinda rahne ke liye kissi katil ki sifarish leejiye." 

THE RED CARPET FOR MALLYA? MAKE HIM PAY FOR IT!

   So the Indian govt. has succumbed to the blackmail of Mr. Mallya and the British govt.'s exaggerated and misguided sense of human rights. The King of Good Times has now ensured that the good times shall continue in Arthur Road jail: he has been assured a separate cell, with TV and attached toilet ( western style, if you please), an east facing window and a private courtyard for his perambulations.  There is no mention yet of facilities such as order-in dinners, ACs or weekly trysts with bunnies but these will doubtless follow. Why on earth did our govt. give in to the British view that the upper crust are entitled to a higher standard of human rights than the ordinary citizen? Why did it not insist that a prisoner is not entitled to ask for anything more than basic and hygienic living conditions, decent food, access to health care, safety and security? Was it because the different standards for V.I.P inmates already exist in India and Mallya was simply asking for the obvious, or was it because of an eye on the 2019 elections- get Mallya back at any cost and use it to hoover in the votes? A bit of both, I suspect.

   The Jail Manual, folks, is for you and me; the VIPs are governed by another edition of the book which is not in the public domain. Sahara Shri is reported to have had a pretty free run in Tihar and was even provided conference facilities with his minions: so naturally he was in no hurry to pay up ( he still hasn't, I believe). I'm told( unconfirmed) that Mr. D Raja of 2G fame had a special block ( or cottage) where he was served bed tea on the lawns every morning, provided newspapers, and had dosa and idli delivered from his home. We've all read  Sashikala's Madam Pompadour like life style in a Karnataka jail: the plucky lady DIG who alleged that a few undemonetised crores changed hands to facilitate this was promptly shunted out. "Bahubalis" in Bihar, like Anand Mohan Singh and Shahbuddin have their own suites in prison with libraries, personal cook and gym. Mr. Lalu Yadav is allowed to spend most of his incarceration in various hospitals; currently in the Ranchi Medical College hospital post a fistula condition, he has now sought a private ward/ room because the general ward room has mosquitoes and is within hearing distance of various barking dogs . He will get his request, I'm confident- a fistula( real or imagined) will get you constipation but it can get a VIP prisoner an air conditioned ward. And all this is at the taxpayers' expense, naturally. They rob us when they are out of prison , and when they are in it!

   This is the reality of India, islands of affluence in prison for the affluent, amidst the most inhuman conditions for others.The British govt. obviously knows this, and it's not going to change in our lifetimes. So here's my suggestion: lets accept it, legitimise it, do away with the cloak and dagger opacity, stop bankrupting the state to serve these millionaire criminals, and allow the underhand crores to flow to the govt. coffers rather than to various jailors and ADGs( Prisons). Forget the concept of "punishment"- that's for( you guessed it first time) you and me. For the VIPs its all about scoring political goals or self-goals, mutual back scratching, a window dressing of "justice" to impress the voter: for them jail is only a temporary holding pen till the Rs. 20 lakh-a-day lawyers can spring them from the can. After all, we do have a glorious record of legitimising corruption: the "facilitation fee" for contracts, the "liaison officers"( usually retired senior govt. and defence officers), the "middlemen", the " agents", the exorbitant divali "gifts", Mr. Jaitley's electoral bonds and so on.

  In the days to come, now that the code of omerta among politicians has broken down, we will ( hopefully)see many Mallya clones go to jail- bankers, politicians, bureaucrats, fat cat industrialists, maybe even a well connected sexual offender or two. Many of them will have suddenly discovered the attractions of the UK, USA, Finland, Antigua etc. and decamp with the odd billion or so, and will need to be dragged back, screaming about their human right to loot and defraud. Why spend crores of our hard earned tax revenues on ( failing to) getting them extradited, or on engaging expensive lawyers to argue in the Supreme court that hydrocele is  not water in the brain but in the nuts and is not life threatening, and therefore does not entitle that crooked Chief Minister to be shifted from Gonda central jail to a Medanta luxury ward. There is a simpler solution, one from which the govt. can actually MAKE money: TIHAR REGENCY., an exclusive hotel in Tihar jail, on the lines of the seven star hostelry in Saudi Arabia where the crown prince Salman recently incarcerated his billionaires till they agreed to cough up part of the country's embezzled GDP.

   This is an idea whose time has come, and it is simplicity itself: Construct a five star hotel in Tihar jail itself ( the name Tihar Regency has a nice ring to it), with all facilities: suites, conference rooms, wi-fi, restaurants, health clubs for our VIP detainees and make them pay through their nose ( or fistulas) for it. There can even be special packages for them: "Corporate package" for private sector honchos, a "Nuptial package" for those who take their conjugal duties seriously, a "Law Maker's package" for the increasing umber of legislators with criminal cases against them, a "Serial Offender's" package for those who just can't help themselves. There could even be loyalty points for those who keep coming back to the jail, and discounts for family groups.The whole concept would be an advertising company's dream-- CONVICTED? NO PROBLEM- UNWIND AT  TIHAR REGENCY, or ACCHE DIN BEGINS AT TIHAR REGENCY or TIHAR REGENCY- THE DESTINATION FOR MOVERS, SHAKERS AND FAKERS.The hotel would be an instant success, for it would have a captive ( excuse the pun) market. Not only would the JTDC ( Jail Tourism Development Corporation) make crores but the other benefits too would be enormous: no more bribes to jailors, no more false medical certificates, no more court dockets clogged with parole applications, instant extradition of all 121 absconding fat cats now that their "human rights" to a luxurious life style would be assured. In fact, some of the inmate-guests may not want to come out, which has to be a good thing for the nation. Why, we may even have hordes of fugitives from other nations making advance reservations at the hotel, a reverse brain-drain as it were, preferring it to the hell holes of the countries looted by them. If offered to Mr. Mallya with a bottle of Kingfisher beer he may even agree to fund the hotel; if he refuses the govt. could always approach Nirav Modi or Choksi, if it can find them, that is.

   The idea would be a win-win for everyone, except of course the common citizen. But then who gives a damn about him in any case?

DEBRIEFING A JOINT SECRETARY

                                         

   Before I joined the govt I thought “debriefing “ was something you indulged in with a lady on a lonely beach, a-la James Bond in DR. NO.  It was much later that I discovered that this unhappily phrased word is a standard bureaucratic technique, whereby the incoming babu pumps the outgoing one for as much  inside information as possible without giving away anything in return ( not that the departing babu is eager to impart any meaningful information either- after all, information is power these days). It requires great skill, particularly in the Ministry Of External Affairs, where esoteric words like “ non-paper” and  “demarche” and "note verbale" create an impenetrable wall of meaningless drivel for the uninitiated outsider. The Word was invented to convey meaning, but in the world of diplomacy it is used to conceal any meaning whatsoever. I once asked a senior American diplomat what exactly was meant by the phrase "free and wide ranging discussions" between heads of state. He answered with a smile: " Oh that; it means that there was blood and gore all over the floor!" As Will Durant observed: To say nothing, especially when speaking, is half the art of diplomacy. For, as I discovered for myself, the real secret about diplomats is that they are trained to say something when there is nothing to say, and to say nothing when there is something to say. Extracting any meaningful information out of a diplomat is like trying to squeeze a peg of single malt from Mr. Nitish Kumar.

In the year of our misguided Lord VP Singh 1990 I was posted as Special Assistant to Mr. IK Gujral who was then the External Affairs Minister. He instructed me, meticulous as he was, to obtain an exhaustive briefing from every Divisional Joint Secretary so that when their files started arriving in the Minister's office they would make more sense than the Dead Sea Scrolls, which are as nursery rhymes compared to the cabbalistic code which passes for notings in MEA files. Now, Joint Secretaries in the MEA are designated like latter day potentates- JS ( Americas), JS ( Western Europe), JS  (Africa) and so on, as if they had carved out the globe amongst themselves, in the manner of the British, the Dutch and the Spanish in the good old colonial era.  (Actually, they have, and woe betide any mandarin from any other Ministry who dares to trespass on their turf without the potentate’s say so !). Working my way through Western Europe, Eastern Europe and Africa I finally arrived in the room of South Asia, a slightly portly Bengali gentleman, clearly weighed down by the problems of his intractable empire. It was a post lunch session, and I got the distinct impression that he had secreted a “ rossogolla” in his mouth. " What," I asked him astutely, " is our geo- political strategy in our neighbourhood ?"

" Our long term plan," South Asia announced, " is to make the Indian Ocean a zone of piss."

That, I felt, was certainly a lot of piss. Moreover, since this was a couple of decades before Messers Ajit Pawar and Gadkari  made piss the fulcrum of all rural development programmes, I was non-plussed. " You can't be serious, " I protested,  "surely Sri Lanka and the Maldives wouldn't allow this !"

" They approve of our plan- after all they too are pissful nations."

" What about China?" I countered, drawing on my limited knowledge of geography.

He was ready for that left hook. " Ah! With China we have a different problem- it’s about a shit. They won't give us a shit!"

I wanted to remind him that China had indeed given us a lot of shit in 1962, some of which still stuck, but I let that pass. " Why would we want China to give us a shit ?" I ventured, " don't we already have enough of our own?"

South Asia finally pulled the flush on this inquisitive IAS Special Assistant. Triumphantly, he squared the circle and , cheeks still bulging with that infernal sweetmeat, proclaimed: " There can be no piss in South Asia until China gives us a shit in the Security Council."

I quietly left. This was one conversation I did not share with Mr. Gujral. And now we know why both peace in the Indian ocean and a seat in the UN Security Council has been evading us all this time, and why no Indian Prime Minister has ever received the Nobel Piss Prize. All because of a rossogolla in a Joint Secretary’s mouth, perhaps ?

                           

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