From Eugenics, Biometrics to Jurimetrics: Supreme Court Judges on Trial: Part IV

Aadhaar Act and Artificial Intelligence paves the way for jurimetrics, the death of justice as we know it

In the moment of Uber-isation and Ola-isation of services, wherein an app links a supplier with a consumer via a platform and the app provider may be based in one country, the supplier in another and the consumer in a third, the imminent verdict on the unjustness of Aadhaar Act has put the five judges of the Constitution Bench of Supreme Court on trial. It has emerged that the problem that beset the trial judges also engulfs the appellate judges. Allowing present and future Presidents, Prime Ministers, Judges, military personnel, poets and citizens and even non-citizens to be biometrically “profiled to the nth extent for all and sundry to know” by 12-digit Unique Identification (UID)/Aadhaar number for Central Identities Data Repository (CIDR) is indefensible.

The trust which the lawyers of Ministry of Electronics and Information Technology (MeitY)'s Unique Identification Authority of India (UIDAI) and its proponents wish the judges of the Constitution Bench to place in the certainty and guidance of UID technology, Artificial Intelligence (AI) technology, computer prediction and statistical inquiries tantamount to predicting human judicial behavior through jurimetrics. This non-human turn ends up promoting use of symbolic logic, behavior models, mechanical aids for prediction of both individuals and groups to eliminate personal element from judicial, administrative and political decisions.   

A decision in favour of UIDAI will imply accepting infallibility of computer prediction without factoring in the “Heisenberg feed-back effect” and the alchemy of machine learning. While judges work in open (having learnt that sunlight is the best disinfectant), the computer programmers and their visible and invisible beneficial owners work behind the scene. If 24x7 identification and authentication of citizens and residents is deemed constitutionally permissible by electronic and biometric systems then the possibility of trial by fallible these very systems too cannot be ruled out in the immediate future. The fact remains that these systems have beneficial owners and these technologies are not class and caste neutral as they reflect the prejudices of the programmers of all shades. This will add up yet another layer of automated inequality amidst continuation of gross rampant historical inequality.

Attempts at predicting human behavior including judicial behavior through these technologies will have unprecedented collateral damage. It is destined to fail. 

The Record of the Proceedings before the Supreme Court's 5-Judge Constitution Bench for 10 May, 2018 reads: "Hearing concluded. Judgment reserved" in the case related to world’s biggest Central Identities Data Repository (CIDR) of 12 –digit biometric Unique Identification (UID)/Aadhaar numbers. Now the second judgment in the UID/Aadhaar case can be pronounced on any of the coming days. The final hearing began on 17 January, 2018. The original case was filed on 18 October 2012. The documents and submissions in the UID/Aadhaar case which has been submitted in the Supreme Court by 16 lawyers (from both sides) in the course of the final hearing can be found here. The first verdict in this case was pronounced on 24 August, 2017 by a 9-Judge Constitution Bench. The 5-Judge Bench comprises of Chief Justice Dipak Misra and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan. The 9-Judge Bench comprised of Chief Justice Jagdish Singh Khehar and Justices J. Chelameswar, S.A. Bobde, R.K. Agrawal, Rohinton Fali Nariman, Abhay Manohar Sapre, D.Y. Chandrachud, Sanjay Kishan Kaul and S. Abdul Nazeer.

As part of his joint order in the right to privacy, Justice D.Y. Chandrachud dwelt on the flawed verdict of the four judges of Supreme Court’s 5-Judge Constitution Bench in ADM Jabalpur v Shivakant Shukla delivered on the black day of 28 April, 1976. The submission of the detenues in the Court was that the suspension of the remedy to enforce Article 21 does not automatically entail suspension of the right or the rule of law and that even during an emergency the rule of law could not be suspended. A majority of four judges of this Court (Justice H R Khanna dissenting) held that: “Liberty is confined and controlled by law, whether common law or statute. It is in the words of Burke a regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense  of  the  people  and  in  the  system  of  representative  and responsible government which  has  been  evolved. If extraordinary powers are given, they are given because the emergency is extraordinary, and are limited to the period of the emergency.” Justice Chandrachud has held: “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed.  Life and personal liberty are inalienable to human existence.” The fact is that it was not just seriously flawed; it was profoundly immoral, unpardonable, sinful and monstrous. The verdict in ADM Jabalpur case was authored by the evil personified.    

Justice Chandrachud observed: “When histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty. Yet others have to be consigned to the archives, reflective of what was, but should never have been.” In order to compare this highly questionable verdict of Chief Justice A.N. Ray and Justices M. Hameedullah Beg, Y.V. Chandrachud and P.N. Bhagwati, drawing from Siddhartha Mukherjee’s The Gene: An Intimate History, Justice Chandrachud recalled that the decisions like the one of the US Supreme Court in Buck v Bell ranks amongst those which should never been delivered. In the Buck v Bell case of 1927, Justice Oliver Wendel Holmes Jr. opined that: “three generations of imbeciles is enough” and accepted the forcible sterilization of  Carrie Bucks  as  part  of  a  programme  of  state  sponsored  eugenic  sterilization. Bucks’s abdomen was opened. A section of both fallopian tubes of her was removed by John Bell, the doctor. He tied the ends of the tubes, and sutured them shut. With this the chain of heredity was broken when this first case was operated under the law which presumed that imbecility can be inherited. Holmes wrote, “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes” under the influence of junk science called Eugenics which was promoted because American and European White people were worried about the contamination of their gene pool if interracial marriages and marriages with African slaves and White immigrants is allowed.     

British colonial power had suspect identification offices in Egypt and India after the development of biometric identification by Sir Francis Galton, an English eugenicist who supported slavery that compiled data of suspects. In the book Imprint of Raj: How Fingerprinting was born in Colonial India, Chandak Sengoopta reveals how biometric identification technique was fine-tuned by Bengal Police. Eugenics and slavery has long been abandoned, the scientific claims of biometrics too have been found to be dubious by reputed official institutions. Biometric UID/Aadhaar project assumes every resident of India to be a suspect. The proponents of UIDAI’s project are treating residents and citizens worse than prisoners who are regulated by Identification of Prisoners Act, 1920, an Act to authorize the taking of measurements including finger-impressions and foot-point impressions- and photographs of convicts and others. It a sister Act of Prisons Act, 1894.        

UIDAI’s paper titled Analytics - Empowering Operations states, the “Data can be considered as the equivalent of water. There are a number of processes involved before the actual consumption of water and data. The journey begins with data, like water, being generated at multiple sources. These are then brought together into one central location”. The simile of water flow for data flow reveals the sensitivity of the controller and owner of the grids- be it water grid, power grid or data grid. There are economic and military forces at work that seem to seek centralization of every conceivable resource unmindful of its cognitive consequences and civilizational cost. Despite colonial experience, the far reaching ramifications of such free flow of human data in one direction remains to be fathomed in its entirety. The fact remains one of the key factors for colonization was information asymmetry between the occupiers and the occupied, between the conqueror and the vanquished and the money lenders, bankers and their clients.

The second verdict in the UID/Aadhaar case is significant after the verdict on right to privacy in the context of 360 degree surveillance of citizens and their activities. As per Privacy Bill, 2011, "surveillance as covertly following a person or watching a person, placing secret listening or filming devices near him, or using informants to obtain personal information about him". This Bill has been referred to in the privacy verdict.

The provisions of Aadhaar Act must be read with the provisions of Collection of Statistics Act, 2008 which defines “informant" in Section 2 (c). Informant can be any person, who supplies or is required to supply statistical information and includes an owner or occupier or person in-charge or his authorised representative in respect of persons or a firm registered under the Indian Partnership Act, 1932 or a co-operative society registered under any Co-operative 9 of 1932. Societies Act or a company registered under the Companies Act or a society registered under the Societies Registration Act, 1860 or any association recognised 21 of 1860, or registered under any law for the time being in force. Unlike the 1953 version of Collection of Statistics Act, 2008 Act provides for collection of data from “economic, demographic, scientific and environmental aspects.” The Collection of Statistics Act, 2008 makes it compulsory for individuals, households and companies to share information required by government through data collectors which it has hired on contract. If one failure to do so, then one will have to face a maximum penalty of Rs 1,000 in case of individuals and Rs 5,000 for companies.

This makes individuals and households totally transparent devoid of even an iota of privacy but donations to political parties from foreign and Indian companies have been made anonymous by the amendments of 2017 and 2018 in the Companies Act, 2013 through the Finance Act of 2017. As per amendment in Companies Act, 2013 made through Finance Act 2017, companies can make unlimited donations to parties while remaining faceless. The Finance Bill, 2018 which has been passed and awaits President’s assent has changed the definition of what constitutes a foreign company. While the original Foreign Currency Regulation Act of 1976 defined a foreign company as one with over 50 per cent foreign ownership, thereby disallowing the companies owned by foreign nationals or Indian-origin people based abroad and with foreign citizenship, to fund and influence political parties in India, the amendment moved in 2016 via the Finance Act sought to change what it meant to be a foreign company altogether. If these amendments are read with the e-commerce related legislations including Aadhaar Act it is apparent that UID/Aadhaar project is a subset of universal project which entails rewriting the political geography of the country forever.

Given the fact that Aadhaar Act is one of the two e-commerce laws, it is germane to recollect that at the 11th ministerial of World Trade Organisation (WTO) which concluded in December 2017, India submitted a written position on e-commerce opposing demand for negotiations on e-commerce by US and its allies. The latter are demanding access to citizens’ database for free as per their written submission. The WTO has a 1998 Work Programme on e-commerce. This Work Programme provides for the discussion of trade-related issues relating to e-commerce to take place in the relevant WTO bodies like the Council for Trade in Services; the Council for Trade in Goods; the Council for TRIPS; and the Committee for Trade and Development.

In recent times, proposals are being pushed by some developed countries to negotiate new rules in addition to the existing ones in the WTO Agreements with regard to e-commerce amidst vehement opposition by many developing countries including India because it goes beyond the 1998 mandate. Since the 1998 WTO Ministerial Conference when Members adopted a temporary moratorium of not imposing customs duties on electronic transmissions, this   moratorium has been renewed at the WTO Ministerial Conferences. Global trade remains open and closed for strategic reasons. It is increasingly evident that trade in services and non-agricultural products is going to acquire electronic route in near future in a dramatic manner. “There will also be financial losses when investors, rather than establishing local presence, prefer to provide services online. Countries will experience losses from taxation foregone”. It emerges that WTO’s Work Programme of 1998 is linked to India’s e-commerce and privacy related legislations like Aadhaar Act, IT Act, Collection of Statistics Act and Consumer Protection Bill. As per Consumer Protection Bill, 2018 e-commerce means “buying or selling of goods or services including digital products over digital or electronic network”. Aadhaar Act defines “service”. Service means any provision, facility, utility or any other assistance provided in any form to an individual or a group of individuals and includes such other services as may be notified by the Central Government. This implies that “service” can be impregnated with more meaning than it currently has. In the light of submissions in World Trade Organisation (WTO), it is increasingly becoming apparent that “goods” can be made to mean “services”.

Constitution Bench on UID/Aadhaar matter is all set to deliver its verdict amidst the possibility of civilian and non-civilian military applications of UID being bulldozed by commercial entities in order to store and read biometric and DNA script of present and future Indian citizens in the aftermath of the sequencing of Human Genome for epigenetics, vested interest of pharmaceutical industry, big data entities, social control technology companies and inhuman aspects of inheritance, eugenics and genetic determinism. The cumulative effect of these efforts has the potential to make digital colonization full proof through data colonization in what is being called the Fourth Revolution by the World Economic Forum which has also launched a Global Redesign Initiative to make nation states appear like medieval residues or redundant. The verdict on Aadhaar Act, the e-commerce law will come in a backdrop of Henry Kissinger’s observations in his book World Order: Reflections on the Character of Nations and the Course of History wherein he claims that “Cyberspace has colonized the physical space and, at least in major urban centres, is beginning to merge with it.” It is not a coincidence that all the proponents and supporters of UID/Aadhaar are city folks. 

Prof Nicholas Negroponte, author of Being Digital has already explained how world trade has traditionally consisted of exchanging atoms, not bits. Bits form the basis of cyber world. He predicts that “Like a mothball, which goes from solid to gas directly, I expect the nation-state to evaporate without first going into a gooey, inoperative mess, before some global cyber state commands the cyber ether. Without question, the role of the nation-state will change dramatically and there will be no room for nationalism than there is for small pox”. Arguments of Negroponte and Kissinger imply that national law is beginning to become irrelevant for cyber world given the fact that cyber law is essentially global law.

This creates the possibility of the country getting colonized yet again by the asymmetry of information created through information, communication, identification, AI and surveillance technologies because it is now realized that all empires have been information and communication based regimes. Notably, it has been accepted that aadhaar number data is entered in various applications. In order to enter quality data of aadhaar numbers, UIDAI felt the need to validate the entered aadhaar number. Therefore, “UIDAI has recommended Verhoeff algorithm for validating the same. Based on the same, component has been developed to validate the aadhaar number entered in an application.” AI based machine learning algorithms, in which computers learn through trial and error has been deemed to be a new form of "alchemy" by AI researchers who admittedly “do not know why some algorithms work and others don't, nor do they have rigorous criteria for choosing one AI architecture over another”. This assumes significance given the fact that Rakesh Dwivedi, UIDAI’s lawyer has admitted in the Court that “UIDAI is using matching algorithm.”

Countries like USA, UK, China, Australia and France have rejected biometric profiling based identification projects like aadhaar. This is open declaration of war against citizens’ sensitive personal information like biometric data by transnational entities and governments captured by them paves way for the enslavement of generations to come through aadhaar database that lies on cloud beyond Indian jurisdiction. This create a compelling logic to factor in the findings of Julian Assange and Edward Snowden who have put their lives at risk to tell Indian government, Indians and others that they are being spied upon by foreign governments, banks and transnational surveillance technology companies. Unless judges factor in the ungovernability of these technologies and their beneficial owners present and future Presidents, Prime Ministers, judges, legislators and officials handling sensitive assignments may become redundant with reference to their age old roles for securing “national resources and assets”.

If jurimetrics is not a wise and certain way of decision making in legal disputes, if eugenics is now a discredited science how can AI and biometrics be deemed sane in the matters of life and death of present and future generation of Indians. Galton advocated three things: slavery, eugenics and biometrics. Two of his beliefs have been debunked; the Constitution Bench has the choice of joining the ranks of Eugenicists like him, Justice Holmes, Doctor Bell and the bench of ADM Jabalpur to promote biometrics or to declare Aadhaar Act as a black Act.

Dr Gopal Krishna

The author had appeared before the Parliamentary Standing Committee on Finance that examined the Aadhaar Bill and the Parliamentary Standing Committee on Food, Consumer Affairs and Public Distribution that examined the Consumer Protection Bill. He is editor of www.toxicswatch.org and is the convener of Citizens Forum for Civil Liberties which has been working on UID/Aadhaar issue since 2010.