The Indian government body in charge of a new digital program is being challenged in court and has been heavily criticized by the public over fears of intruding into people’s right to privacy.

The government organization in charge of the country’s digital biometric-based identity program Aadhaar has come under fire over its latest plan to allegedly intrude into citizens’ fundamental rights to privacy.

Mahua Moitra, a legislator from West Bengal, has petitioned the Indian Supreme Court to challenge the Unique Identification Authority of India’s (UIDAI) plan to trawl social media, along with managing and manipulating public opinion about the government’s ambitious Aadhaar program.

The UIDAI is responsible for everything related to Aadhaar including enrollment, authentication and management of Aadhaar data.

In her petition, a copy of which was obtained by Asia Times, Moitra contended that the UIDAI’s monitoring plans, if not nipped in the bud, would result in the gross violation of key fundamental rights of freedom of speech and expression, the right to equality and the right to privacy.

Neutralizing negative sentiments

The UIDAI’s alleged plan to mount surveillance on social media was outlined in two bid documents, one issued on July 18 and the other one on July 19, inviting proposals from companies. The company selected would track and manage perceptions and sentiment about the Aadhaar program on social media as well as in the press and on online news sites.

Moitra’s petition contends that the profile of work defined in the July 18 proposal was blatantly illegal. The proposal inviting bids for a social media agency, in paragraph 2(i), states that the agency would be required to “employ a top-rated social listening tool to track and monitor online conversations relating to Aadhaar.”

These listening tools must “be capable of doing a sentiment analysis of all such conversations and flag any discrepancy in sentiments’ trend.” Based on such analysis, the agency must identify “detractors” and “influencers” and subsequently chalk out a plan to “work out and neutralize negative sentiments.”

Invasion of privacy, freedom of expression

The crux of Moitra’s petition, drafted and filed by lawyer Mohammed Nizam Pasha, was the Supreme Court’s landmark ruling in the Justice Puttasamy case, delivered on August 24 last year. In that case, nine judges on the Constitutional Bench unanimously ruled that Indians have a fundamental right to privacy.

The opinions by justices DY Chandrachud and SK Kaul are of particular significance to the petition. In the judgment, Justice Chandrachud held that in the internet age, restrictions on a citizen’s privacy can be imposed only for “legitimate state interests” and only by an act of Parliament, and only when the state has put in place a robust system to ensure the protection of its citizens’ data.

Moitra contended that mounting surveillance on citizens’ communications to identify who was speaking for or against the Aadhaar program was anything but a “legitimate state interest.” It is more complicated as the constitutionality and legality of the identity program are sub judice. A constitution bench of the Supreme Court heard the case challenging the constitutional validity of Aadhaar at length over a fortnight earlier this year and has reserved its judgment.

Justice Kaul, in paragraph 637 of the judgment, held that what a citizen posts on social media is intended only for the audience he or she has in mind, and should not be available to outsiders – be it corporations or the government and its agencies. Referring to the data protection regime in Europe, Justice Kaul also emphasized the need for a similar one to be instituted at the earliest in India.

Grounding her argument on the opinion of Justice Kaul, Moitra questioned the legal authority of the UIDAI-appointed social media agency to monitor what she and fellow citizens post on social media about Aadhaar.

The Supreme Court in the Justice Puttaswamy case upheld the minority decision of Justice Subba Rao in the landmark Kharak Singh case (1964). Justice Rao held that the fundamental right to freedom of expression cannot be separated from its psychological content and that this right is violated if the government is constantly monitoring who is saying what.

Relying on this, Moitra contended that in the present case, it is not only the government but private contractors engaged by it which would monitor citizens’ social media communications and engage in profiling.

This could result in a chilling effect on a person’s freedom of speech and expression, she said. The problem is particularly severe because, although the proposal does not spell it out, the only way the social media agency could possibly identify detractors and influencers is by monitoring individual posts.

Repeat offender?

This is not the first time the UIDAI has been accused of trying to monitor people’s social media posts and manage their perceptions and beliefs. In 2016, it invited bids to set up a social media agency which would be entrusted with monitoring individuals’ accounts and gauging sentiments about Aadhaar and creating favorable opinions about the much-contested program.

There is no information available in the public domain about whether the 2016 plan was put into action and is ongoing, and according to media reports, the UIDAI has maintained a rigid silence when asked about it.

In recent times, questions have been raised by civil liberty advocates as well as ordinary citizens about the UIDAI for the way it has been implementing the Aadhaar program with great secrecy and little accountability. Repeated reports of data leaks and privacy concerns have not been flattering to the authority either.

Will this alleged attempt to forcefully influence public opinion see the UIDAI incur the Supreme Court’s wrath? That will be known in the coming weeks when the court takes up Moitra’s petition.