From Aadhaar to Aarogya Setu, Vidhi's questionable role in technology-related policy making

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  • As per the think tank’s annual filings with the ministry of corporate affairs, the dues—Rs 90,000 by NATGRID for the fiscal year 2018–19 and Rs 21,14,000 by the MHA for the fiscal year 2017–18—were listed under “amount receivable” which is the balance of money due to a company for services delivered but not yet paid for by the customer.

  • Aadhaar, and now Aarogya Setu demonstrate that instead of framing a law and then bringing in software and systems that run in accordance, India has followed the practice of engaging private entities to build software and applications, and then framed the laws to fit these systems.

  • From the Aadhaar Act, 2016, the Goods and Service Taxes Act, the Financial Resolution and Deposit Insurance Bill, the PDPB, and the latest Aarogya Setu Data Access and Knowledge Sharing Protocol, 2020, Vidhi has played a key role in drafting laws on the government’s data-gathering and surveillance systems.

  • Vidhi’s funding also suggests competing interests—their roster of patrons, as per the website, is a who’s who of people and organisations with direct commercial stakes in the mechanisms and the regulatory frameworks being developed for India’s evolving digital economy. For instance, Rohini Nilekani, the wife of Nandan Nilekani, one of the chief architects of Aadhaar, is a Vidhi patron.

  • On 28 May, Arghya Sengupta, the founder, manager and research director of the Vidhi Centre for Legal Policy, a private think tank, tweeted a list of “contributors”—released by the government—who had helped develop the controversial COVID-19 contact-tracing app, Aarogya Setu. Sengupta was listed among the “Industry and Academia Leadership” of the team.

  • This assessment was reinforced when Sengupta was brought on board to defend the government’s position on Aadhaar in the Supreme Court in at least two cases, both in 2017

  • In court, Sengupta argued that privacy is not a fundamental right since the right to liberty adequately covered all aspects of privacy and there was no need to clarify privacy as a fundamental right.

  • The other case was Justice K Puttaswamy vs Union of India, where Sengupta represented the state of Haryana and the Telecom Regulatory Authority of India, and defended the Aadhaar Act against privacy concerns.

  • One of the former employees said, “NATGRID apparently approached Vidhi in the wake of the Puttaswamy right to privacy judgement saying that because the judgement says that anything that is infringing the right to privacy needs to be backed up by law, it wanted advise whether they need a law [to function]?

  • The fact that Sengupta was arguing against privacy as a fundamental right, while being brought on board to draft a law for data protection, led to several senior lawyers and privacy-rights activists questioning the conflict of interest.

  • According to the draft, Indian intelligence agencies—including the Research and Analysis Wing, the Intelligence Bureau, the Defence Intelligence Agency, the Central Monitoring System and the NATGRID—were set up by executive authorisation and continue to operate without a legal framework. Hence, the parliament would have to enact a law to oversee the intelligence agencies and create a mechanism to ensure compliance with the DPB.

  • The timing behind the tabling of the Bill and its contents were heavily criticised by the opposition, privacy-rights activists and Srikrishna himself—it was introduced the same day that the highly contentious Citizenship (Amendment) Act, 2019 was passed by the Rajya Sabha amid rising protests across the country.

  • Section 35 of the draft PDPB said that the central government can direct any agency of the government to process personal data if it thinks it is necessary in the interest of, and to prevent offences against the “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order.”

  • Other damaging provisions include clauses proposing verification of social-media users; government access to anonymised data or non-personal data by directing data fiduciaries; lack of safeguards for anonymisation; and weakening of the Data Protection Authority, which was expected to act as an independent regulator.

  • Srikrishna went to the extent of saying, “Somebody should challenge it before the Supreme Court on the grounds that it is unconstitutional.” Curiously, in stark contrast to Srikrishna’s stance, Sengupta, who had been a member of the original committee, defended the updated PDPB presented by Ravi Shankar Prasad

  • Sengupta’s diametrically opposing stance to Srikrishna pointed towards Vidhi’s leanings with respect to the privacy-rights argument, especially considering its involvement with Aadhaar.

  • Prasanna’s comment suggested that the government should come up with legal explanation for going ahead with the Aadhaar project, rather than making any changes to the biometric database to address the privacy concerns.

  • Nandan Nilekani’s role as the chief architect of the Aadhaar system while also being associated with a legal think tank that worked on drafting the policy brings to light the issues in the process of formulating tech-related policy and legislation in the country currently.

  • A perusal of the list of “contributors,” who worked on the app, released by the government and further retweeted by Sengupta showed that many of the people involved with the Aarogya Setu project are working on developing the National Health Stack, too.

  • The NHS is a centralised database of health records of all citizens that is currently being developed under the aegis of the Niti Ayog.

  • The fact that a key person developing the Aarogya Setu app is also in the leadership position at a private firm that has financial interests in the digital system being developed is also indicative of a conflict of interest.

  • The question of how were these “best minds” chosen and assigned to work on a government digital infrastructure project that holds the personal data of twelve crore Indians—the official number of citizens who have installed the app on their phones—is still unanswered.

  • The problem of inducting private members as volunteers without any selection procedure or official announcement has also been raised by many digital-rights activists.

  • However, Vidhi and its promoters have chosen to spin the Aarogya Setu project as a unique and desirable model for all further digital infrastructure development in the country.

  • Kodali said that the Setu app was being built “to benefit the Health Stack and that is the reason it is being made mandatory, and people can build companies and become rich. What is being called innovation is actually stealing people’s data to make money.”

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