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India’s founding values are threatened by sinister new forms of oppression

By employing drones and facial recognition against the opposition, Narendra Modi seems heedless of civil liberties and justice

Madhav Khosla

Sat 28 Dec 2019

First published on Sat 28 Dec 2019 18.30 GMT

India’s prime minister, Narendra Modi, attends the Brics leaders’ summit at the Itamaraty Palace in Brasilia on 14 November.
Photograph: Mikhail Metzel/TASS

The anger is extraordinary for its depth and ferocity. In protests that have spread across the world’s largest democracy, Indians of all stripes have taken to the streets. Two weeks ago, the government amended the citizenship law to speed up applications for refugees from surrounding countries who are Hindu, Christian, Parsi, Jain or Buddhist – but not Muslim. The law coincides with an attempt to create a new list of India’s citizens, a task whose precise mechanism has evolved in recent days. Regardless of the details, it will be a Kafkaesque exercise during which poor people with few official documents will have to prove their citizenship. If they happen to be Muslim, the citizenship law means the consequences they face will be different. Detention centres mushrooming across India reveal what those might be.
The pan-Indian nature of the outcry is striking. India has long been home to disobedience, but the scale and reach of the present discontent is rare. Though the protests have been painted as a conspiracy limited to Muslim and elite forces, elements that have come together to suppress the real India, there seems to be genuine and diverse opposition to the plainly exclusionary citizenship law. As the drama and horror have unfolded, both the protesters and the state have acted in familiar ways. We have seen student agitations, silent marches, legal orders, police brutality and recriminations. Yet there is something special about this episode, something new on each side.
Unlike many an agitation in Indian history, these protests have not centred on specific goals and policies. While the context is the citizenship law, the message has been that India’s essence hangs in the balance. For its independent history, the nation has mostly been liberal and democratic, in stark contrast to much of the post-colonial world. Now, with the country’s identity being framed in terms of its majority Hindu population, its status is changing. Importantly, the communalisation is taking place with state absolutism. In Kashmir, for example, where the region’s constitutional autonomy was annulled in August, there has been a lockdown spanning travel, communications and ordinary life. With institutions such as the judiciary hardly visible, state authority has faced few obstacles.
The protests have expressed concern at both the redefinition of Indianness and the decline in democratic freedoms. A noticeable feature in the outrage has been an emphasis on the constitution. The document expresses a strong commitment to individual autonomy. For Jawaharlal Nehru, the country’s first prime minister, the only way to “consolidate India” was “by removing all sense of difference from the political point of view between the so-called majorities and minorities”. India’s birth, as I have argued in a forthcoming book, was the first major attempt to create democracy in a non-western land burdened with poverty, illiteracy and diversity. The present discontent has highlighted the contrast between the ideals on which the nation was formed and the direction in which it is quickly heading.

Protesters demonstrate against the citizenship law in Guwahati, Assam. Photograph: David Talukdar/REX/Shutterstock

The symbolism is powerful, but it can only do so much. No constitution can provide for its own success or failure. It depends on the political forces that exist. The protesters are brave and numerous, but they are headless. While recent outbursts have seen some regional governments pushing back against the central government, the political opposition is far from co-ordinated and clear, and India’s federal scheme tilts heavily in favour of the central government. The success of the outcry will turn on whether it can shift from social unrest to a political alternative. The constitution cannot save India but, if such a transition occurs, India may well save it.
If the protests have stood out for framing the moment in existential terms, the state’s reaction has been noticeable for a different reason. There have been some expected reactions, such as the extreme use of a colonial-era law to prohibit assemblies, some dramatic measures, such as widespread internet shutdowns, and some ghastly episodes, especially in India’s most populous state, Uttar Pradesh, where there is a great feeling of terror and communal tension. What is most startling, however, has been the coming together of technology, surveillance and coercion to produce an entirely new machinery of state power. Indeed, India’s protests may well mark the first moment when the new arsenal of the state is deployed on such a large scale.
Automated facial recognition systems have been used to identify and to exclude protesters, based on earlier protest videos taped by police. The software used was originally developed to trace missing children. It is now being deployed to act against individuals, thereby not merely preventing them from protesting but doing so without any establishment of guilt. This year, the government issued a tender for an automated facial recognition system on a nationwide basis, whose end date has been extended five times. This is despite the absence of any clear legal framework to guide the use of such technology. The tender explicitly notes the benefits of the technology for crime prevention but omits any reference to privacy or sensitisation.
In parallel has come the deployment of drone technology to capture images of protesters. In response, the Internet Freedom Foundation, a not-for-profit advocacy group, petitioned India’s directorate general of civil aviation seeking an independent legal opinion on the legality of drones. IFF has pointed out that the DGCA’s guidelines appear to have been openly flouted for the purposes of surveillance. As in the case with facial recognition, there are no clear parameters on when miniaturised drones can be flown with video cameras and visual recognition software. The state is exercising great power, and great power without authority.
These technological moves should raise alarm bells. India has the world’s largest biometric database, with few checks on information processing and data mining, and it recently tabled a personal data protection bill in parliament that does little to address non-consensual data profiling by the state. With communal identification and a hegemonic political configuration on the one hand, and with powerful technological instruments on the other, India stands at a curious junction. It faces a medieval politics being driven by the weapons of the future.
•Madhav Khosla teaches law and politics at Columbia Law School and Ashoka University and is the author of India’s Founding Moment

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