Supreme Court should make public the suggestions made by Abhishek Manu Singhvi

Yesterday, there was a hearing in Supreme Court about the RFP Tenders released by UIDAI and the objections raised on them by an MLA of TMC by name Mahua Moitra who is known as an “Aggressive” politician. The petition was argued by none other than the senior Advocate Mr Abhishek Manu Singhvi who is a loyal Congress member and also a person who has faced the trouble of black money investigation in the Mohul Chokshi/Nirav Modi case.

On the part of the respondent, the Attorney General Mr K.K. Venugopal appeared. This objection on “Social media Hub” by Mahua Moitra was the second such application as she had earlier opposed another RFP released by the I & B Ministry dated 25th April 2018. In that instance, the Supreme Court bench had made caustic remarks during the hearing which was reported in the press as ” Social media hub: E Spying like a Surveillance State says Supreme Court“.

Fearing that these remarks indicated a pre-conceived state of mind of the bench, Government of India withdrew the proposal to avoid further confrontation and did not allow the trial to take place.

Now  on 18/7/2018, UIDAI released a tender RFP titled “Request for Proposal (RFP) for Hiring of Social Media Agency of UIDAI  HQ New Delhi”  

Again another  RFP Tender was released  on 19/7/2018 titled “Request for Proposal (RFP) for hiring of Media Monitoring Agency of UIDAI HQ, New Delhi

The list of tenders can be seen here below.

It is not clear if the RFP of 18th has been scrapped and replaced with the RFP of 19th though we can go with this presumption.

The petitioner promptly approached the Court once again objecting to the RFP of 18th.  Since the Supreme Court is very sensitive to any Aadhaar related petitions and also since Mr Singhvi is a senior politician of the Congress which can raise an impeachment motion on the Judges in the Parliament the Congress party  is unhappy, the petition was once again heard on 7th September and again on 11th September on an emergent basis.

If the RFP of September 18th has already been scrapped, then the petitioner will have to file a third petition on the RFP of 19th.

The current developments in the Supreme Court does not clarify if three or atleast two separate petitions have been filed or  the discussions are continuing on the old petition only.

If the discussions are continuing on the basis of the first petition as it appears to be from the media reports,  AG need to seek fresh petitions from the petitioner rather than discussing the new RFPs based on the old petition. Supreme Court should also insist on a new petition based on the grounds relevant to the RFP of UIDAI of 19/7/2018.

Even during the current hearings, on September 7th , the bench made instantaneous comments which media was happy to report with headlines such as “SC slams UIDAI tender to conduct online surveillance”.  indicating that the bench is again pre-judging the issue before it hears the arguments of both sides.

Again, the AG was nodding his head in obedience and agreeing without any discussion that the suggestions of the Petitioner would be taken note and the RFP would be revised.

Reserved Aadhaar Judgement is casting its shadow

The way the AG is responding indicates that the fact that the judgement on constitutionality of Aadhaar has been reserved  is holding the Government back.  It is as if the Government is under a perceived threat that if it confronts the Supreme Court at this stage, an adverse Aadhaar judgement may be released immediately which is most likely to bring down the Modi Government .

Even if the judgement is not released immediately, the indication is that the judgement would go against the Government and the Court has to only decide on the timing of the release of the judgement. Just as the previous CJI went out with a bang on a hurriedly released judgement on Privacy in the Puttaswamy case, the current CJI may be holding the Aadhaar judgement as the grand finale of his term and a judgement against the Government will derive a very high praise from the section of the media which is part of the Anti Aadhaar brigade.

We can recall that one judgement against Jayalalitha was reserved and kept under reservation until it was no longer relevant for Jayalalitha and she passed away. Similarly the sensitive judgements like the National Herald case and the Ram Mandir case are being delayed until perhaps this Government exits and the more favourable Congress or a Kichdi Government comes into rule.  We can expect a similar finesse in the timing of the release of the Aadhaar judgement.

If the Aadhaar judgement goes against the Government as it appears to be likely, it will be a big blow for Mr Modi’s black money and corruption elimination drive. Consequently the corruption syndicate which may include men in high places and politicians will be extremely happy and claim that “Democracy is saved”.

It is also possible that scrapping of Aadhaar could completely break down the uneasy calm being maintained by the Government and the Judiciary ever since the friendly Congress Government went out of power and the no-nonsense Modi Government came to power.

It could even make this  confrontation an election issue and the role of politician advocates and their influence on the judiciary will be one of the main points which will have to be debated by the Indian public through the ballot box.

Some may argue that I am unnecessarily giving a political colour to this “Media Monitoring” debate. But we need to take note that the petitioner in this case is a politician and the advocate is a hard core politician and hence it is difficult to keep politics out of the  debate.

Nevertheless, let us keep the politics aside for now and  get back to the legal aspects of the debate.

Next Steps

From the information that is available in the media  (Refer: Deccan Chronicle:“Will file affidavit on UIDAI plan, Center tells Supreme Court”) it is clear that the Government has no defence argument and acting like a school boy before the head master and nodding its head on everything Mr Abhishek Manu Singhvi wants to say through the obliging bench.

What is not clear to us is that there were three RFPs. The first one was from a Government department but the other two are from a statutory body called UIDAI. Out of the two RFPs of the UIDAI, only the latest namely the RFP of 19th is relevant for discussion.

We donot know what are the suggestions that Mr Singhvi has made and what is that which Mr Venugopal will advise the Government to incorporate.

This issue cannot be settled in private discussions between the two advocates Mr Singhvi and Venugopal and in camera discussions with the judges. There is national interest involved and there should be transparency in the proceedings.

We urge the Supreme Court therefore to make public the petitions filed by Mahuta Moitra in respect of each of the three RFP s and the latest suggestions that might have been made. We also would like to know why UIDAI as an authority is not representing itself as an independent body with a Corporate identity.

The conduct of UIDAI  actually gives credence to the opposition charge that UIDAI is nothing but a mouth piece of the ruling Government and does not hold any independent operational freedom.

I would like the CEO of UIDAI to explain whether every corporate decision of UIDAI and every one of its tender documents are subject to the scrutiny of the Ministry and are not professional decisions of the UIDAI.  If this is so, he should resign and let a committee consisting of a Supreme Court judge, the politicians of the Government and the opposition to run the operations.

Why the Media Monitoring by UIDAI is a National Security Issue

As a citizen of India, I would like to place some points of view for the UIDAI and the AG to take note of when it tries to make changes to the RFP based on the suggestions of Mr Abhishek Manu Singhvi.

These views are on the basis of Information Security best practice perspective.

Aadhaar is know to have many enemies. Most of these are those who are unhappy with its ability to track black money. There are also many security professionals and Privacy activists who oppose Aadhaar because of its perceived potential for misuse. Their view point cannot be brushed aside since if Congress comes back to power, they may certainly use Aadhaar to brow beat the citizens into submission like the 1975 emergency days.

Modi may use it for fighting corruption but his control will extend only as long as he is in power but Aadhaar may continue as a system even after Mr Modi is out of office. The Urban Naxalites are trying to push him out of office as early as possible and though they may not succeed for now, there is no guarantee that the Caste corrupt Indian society may gang up against the honest performance oriented Modi and ease him off the power in the elections and bring back a Kichdi Government.

The conspiracy to oust Mr Modi is also reflecting on the opposition to Aadhaar. In fact the current proposal of UIDAI is only to scan the media about how the reputation of UIDAI is getting reflected. Actually these measures which UIDAI is suggesting is insufficient and needs to be bolstered further.

The petitioner, the AG and the Supreme Court is wrong to speculate that this “Media Monitoring” amounts to “Surveillance” and is related to Privacy infringement. It is clear that none of these people have really understood the proposal but are speaking from their prejudiced minds.

The proposal (please refer to the RFP of 19th July)  is to mainly observe what has been published as “News” in the media. It would scan

a) Print Media: All DAVP empanelled national, regional and vernacular dailies and all magazines including news magazines

b) Electronic media: All National and Regional  TV news channels

c) Digital/Online media: online news and magazines, facebook, twitter, blogs, micro-sites, social network sites etc.

The contracting agency  is expected to prepare a media monitoring report on daily basis and post it online to the UIDAI officials as per the list provided by the UIDAI (Media Division) time to time and also provide Newspaper Clippings/ Clips of Electronic coverage as and when asked for within the specified time limits.

I want the Supreme Court to clarify which of these are infringing the Privacy of Indian Citizens and their fundamental rights. This sort of reputation management exercise is a routine media relation management exercise which every sensible public facing organization undertakes and is expected to. By passing adverse remarks on these with reference to UIDAI, the Court is actually passing a judgement on Corporate Media operations and rendering their activities seemingly illegal.

Supreme Court and Mr K K Venugopal has to come to an agreement on what is “Surveillance in violation of privacy of an individual” and what is “Monitoring the reputation of an organization through the media citing”. They cannot go by the interpretation of a Congress politician and make it mandatory for UIDAI and other Corporates in this regard. If this is not challenged then every corporate media house need to re-think on their media scanning contracts and many Public Relations agencies need to close down.

The Supreme Court and Mr Venugopal seem to be confused between monitoring of public information on Facebook and Twitter with the “Private” designated messages like WhatsApp. Intruding into WhatsApp or the Private messages in Facebook will amount to Privacy infringement. But the RFP does not suggest it. It is only in the mind of Mr Singhvi and without further verification has been assumed by the Court. It is a shame that the AG has not pointed this out.

Even in the case of the I &B RFP, the confusion was created because the proposal had two dimensions. On the first dimension it was media scanning (call it monitoring if you like). On the second dimension, the RFP wanted the agency to develop a platform like the “Local Circles” (Check www.localcircles.com). Further we can say that the attempt was to create a captive communication platform between the Government and its citizens where various issues could be discussed. Monitoring this was part of the RFP.

From the news reports it appeared that the SC thought and believed that the RFP was to pry into the private messaging platforms like WhatsApp, private messages in Face book, hack into e-mails of citizens etc. This was no where evident in the proposal and only prejudiced minds could think that the RFP was exactly meant for that. It is acceptable for Mahua Moitra and Singhvi to think and act with such prejudice but the Supreme Court has to raise above such prejudice and evaluate the petition independent of the Media representation of what the intention of the Government could be. It appears so far that the bench has not applied its mind and is reacting to popular perceptions.

It must be brought to the attention of the Supreme Court that since Aadhaar is considered as one of the keys to bringing down Mr Modi and the opposition politicians and motivated hackers are engaging in attacking the Aadhaar system only to deface the reputation of Mr Modi. It is therefore not only necessary for UIDAI to understand the mood of the world opinion on Aadhaar but also engage specialists to scan the deep web to identify specific attack vectors that are being prepared by hackers to break into Aadhaar.

If the Supreme Court places barriers on UIDAI in monitoring even the public media, then UIDAI will have no courage to monitor the deep web. Hence emerging threats may go unnoticed and the responsibility for engineering such a situation may be attributed to the inability of the Supreme Court to understand the intricacies involved in monitoring a system as critical as Aadhaar.

I therefore consider that the current developments are creating a serious national security issues which even Mr Singhvi may not have recognized.  It is the duty of the Government however to bring it to the notice of the Supreme Court that it is part of the recommended Information Security  management strategy of any entity to not  only scan the media but also manage “honeypots” to gather threat intelligence. If UIDAI does not do it, then it will be failing in its duty to the nation to secure the system.

If the Supreme Court does not allow UIDAI to secure the system, then history will hold the members of the bench who are creating a situation where by UIDAI will default on their security obligations.

It is the responsibility of Mr K K Venugopal to make an effort to bring these views to the Supreme Court and let them make an informed choice. By being super obedient, the AG is not serving the interests of either the Government or the general public.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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