SNOOPING, surveillance, tracking and constructing logs that help profile people is entering the routineness of state practice. The instrumentalities that are created to carry out these tasks invariably inhabit spaces where they are shielded from scrutiny, supervision, audit and accountability. Acronyms abound: NTRO, NCTC, CCTNS,¹ MAC, NIA,² Natgrid, UID, PII.³ Then there is the CISF in its freshly minted form – and reinvented purpose where the government loans out its personnel to corporate houses.⁴ There is, too, the impulse to legalize the creation of a DNA bank. What is known about these instrumentalities is little, very little. But, the little that is revealed raises unanswered questions about the state of law, lawlessness and just plain nosiness of the state.

The National Technical Research Organization (NTRO): The Kargil debacle acted as a spur, and an opportunity, to expand the intelligence establishment. The Kargil Review Committee had been severe about the lapses in intelligence. The NTRO was set up in 2004 to deepen the gathering of intelligence. Set up under the Research and Analysis Wing, its mandate included ‘missile monitoring, satellite and airborne imagery, cyber patrolling and security, cyber offensive operations, communication support systems and cryptology.’⁵ Its record in its brief existence has, however, much in it to cause concern.

In May 2010, Saikat Datta, reporting for Outlook, wrote about Indian intelligence playing Big Brother. He was then talking about the NTRO.⁶ The ‘communication revolution,’ he said, has helped Indian intelligence acquire the capability to intercept phone calls, SMSes, email and all forms of electronic transmission. ‘It puts pretty much everyone under surveillance. And as more and more transactions and conversations go online, it puts at the government’s disposal a wealth of information about its citizenry …what was to be used against enemies is now being deployed against citizens.’ The ‘off-the-air GSM/CDMA monitoring devices that central and state intelligence agencies have procured are ‘mounted inside cars, (and) are sent on ‘fishing expeditions’ randomly tuning into conversations of citizens in a bid to track down terrorists.’ What they did pick up were ‘private calls or lovers speaking to each other.’ ‘We can dig into everyone’s life,’ Datta quotes an intelligence official, ‘be it political and corporate leaders, journalists, social activists or bureaucrats. We can track anyone we choose.’⁷ 

 

Law and judicial decisions have established guidelines that have to be followed when phones are to be tapped, and which acknowledge that there are limits of the power of agencies of state in intruding in the lives of citizens and residents. These guidelines are being rendered redundant, both by technology, and by the protection of intelligence agencies from oversight, monitoring or any systems of accountability. A recent attempt to rein in the intelligence agencies through Manish Tewari’s private member’s bill – the Intelligence Services (Powers and Regulation) Bill 2011 – has not travelled very far, even as experience reveals the imperative to have such a law. Overcoming the resistance of the establishment is going to be a tough, if worthy, battle.

The ills of secrecy were exposed in a petition that V.K. Mittal, a former senior scientist with the NTRO, took to the Delhi High Court, and in appeal to the Supreme Court. The Supreme Court closed its files on the case in November 2012 but not before the CAG had, in a special audit (intelligence agencies are generally beyond the purview of the CAG, and a RTI had produced this answer) ‘noticed lack of transparency and non-compliance of rules and procedures in procurement of systems/stores/equipment and deficient procurement management, resulting in cases of excess payment/wasteful expenditures/loss to the exchequer.’⁸ 

 

The procurement of satellite communication equipment on board UAVs without technical evaluation or trials in Indian conditions and where the two Israeli companies – Israeli Aerospace Industry and ELTA – had refused to part with information about the equipment, was the tipping point.

The Supreme Court petitioner also raised questions about large-scale misappropriation of unaccounted funds. Since 2005, NTRO had been allotted Rs 8000 crore, and 25% of this sum, viz., Rs 2000 crores, was a ‘Secret Service Fund’, and there is no accounting for what is done with it. Then there has been the scandal about appointments in the NTRO which Suresh Sharma blew the whistle on.⁹ National Security Advisor, Shiv Shankar Menon, is credited with having been the first to order an enquiry into corruption in the NTRO. The reports of all these enquiries, including the CAG’s special audit, stay shrouded and unreachable.

In the meantime, we have begun to read about NTRO ‘routinely’ processing data generated by UAVs to ‘Maoist-controlled areas’ in Chhattisgarh. About a dozen UAVs with receiving stations in Hyderabad are reportedly operating in Bastar in Chhattisgarh. These are processed and passed on real-time to the CRPF field commanders. The efficacy of this system is still unknown and it is reported that ‘the officers have not divulged whether any operation has been carried out on the basis of the data generated by the UAVs so far.’¹⁰ There is nothing to suggest that there are any protections against misuse or overreach of this invasive technology. National security and secrecy continue to override all else.

 

National Counter Terrorism Centre (NCTC): Kargil was the basis on which the MAC (Multi Agency Centre) was founded in December 2001. In June 2005 the Second Administrative Committee recommended that the MAC be converted into a National Counter Terrorism Centre with personnel from the range of intelligence and security agencies. Seven years after it had been set up, on 31 December 2008, the government set out the ‘functions, powers and duties’ of the MAC in an office memorandum. In 2012, with no explanation of what had happened to the MAC, and why that was deemed inadequate, the NCTC (Organization, Functions, Powers and Duties) Order was issued. All that its preambulatory statement vaguely suggested was that ‘a review of the current architecture of counterterrorism has revealed several gaps and deficiencies.’

The din of protest that rose from amidst chief ministers, including Jayalalithaa, Modi, Patnaik and Mamata Banerjee, stalled the starting up of the NCTC. P. Chidambaram, as home minister, had to beat a retreat, with reassurances that convincing the chief ministers would precede establishing the NCTC. Shinde, the current home minister, has said he will defer moving on the NCTC till after the amendments to the UAPA (Unlawful Activities (Prevention) Act 1968) pass through Parliament. The link between the UAPA and NCTC is made in the NCTC Order which names the Director, NCTC to be the ‘Designated Authority’ under the UAPA.

 

The chief ministers have risen in revolt against giving the power of search, and arrest, under Section 43 A of the UAPA to the NCTC. But, while the chief ministers object to their power over the people being usurped, there are other aspects of the NCTC that is cause for anxiety amongst the sentient populace. Among its functions and duties that are listed out is a clause that reads: ‘to maintain a comprehensive database of terrorists and their associates, friends, families and supporters ...’ In the UAPA amendments that slipped quietly pass the Lok Sabha is the definition of ‘person’ that includes ‘an association of persons or a body of individuals, whether incorporated or not.’ This widening of the band of people who can be tagged, and branded, is being routinized in law and executive orders.¹¹ 

The NCTC is to have the power ‘to seek information, including documents, reports, transcripts, cyber information and information of every other kind in whatever form, from any agency furnishing or obliged to furnish such information.’ And these shall be ‘under such conditions of confidentiality as may be reasonable in the circumstances of the case.’¹² 

On 11 April 2011, rules were framed under the Information Technology Act 2000 which required that sensitive personal data or information ‘shall be shared, without obtaining prior consent from the provider of information with government agencies mandated under the law to obtain information including sensitive personal data or information¹³ for the purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution and punishment of offences.’¹⁴ And, disregarding even the feeble protection given to sensitive data or information about an individual, ‘any sensitive personal data or information shall be disclosed to any third party by an order under the law for the time being in force.’

Vague definitions that extend the tentacles of the agency to reach almost anyone, and the sweeping aside of personal protection, are compounded in their absoluteness by the wall of secrecy and the language of terrorism. The NCTC is proposed to be located in the Intelligence Bureau which is impervious to enquiry or supervision. In the national interest, of course.

 

The National Intelligence Grid (Natgrid): 26/11 has been both an event of tragic proportions etched into the history of our times, as also a trigger for enhancing intelligence and security networks. Natgrid was established in December 2009 for an initial period of 18 months. Since then, it has been struggling to get Cabinet endorsement. In February 2011, a meeting of Cabinet members baulked at the prospect of a mechanism that would converge data real time, making personal information easily accessible to those handling the data.¹⁵ It has since been grudgingly permitted to continue with the Cabinet Committee on Security giving its approval, in June 2012, to the acquisition of ‘technological items for Horizon I.’¹⁶ 

 

The Natgrid is to link 21 databases to provide converged information, real time, to eleven security agencies. These include access to databases of railways and air travel, bank accounts, income tax returns, telephone and internet usage, credit cards and immigration records by agencies that include RAW, IB, Military Intelligence, and the CBI. No comprehensive list is publicly available of either the agencies that the Natgrid will assist with convergence of databases, nor of the fields of data.

On 20 May 2011, Venkatesh Nayak, an RTI activist wrote to the Ministry of Home Affairs asking for basic information about Natgrid. The application was passed through two departments before it was transferred to Natgrid ‘for necessary action’. On 30 June 2011, Nayak received his reply. Natgrid was ‘out of the purview of RTI Act under Gazette Notification No. 306 dated 9 June 2011.’ That is, much after Nayak had made his application for proactive disclosure, Natgrid slipped into the folds of secrecy, deep and away from the seeking eyes of the RTI applicant. Nayak’s appeal to the Central Information Commission, which advised him to file an appeal as a matter procedure provided in the RTI Act.¹⁷ While so deciding, though, the Information Commissioner extracted from a decision of the Supreme Court¹⁸ which had held: ‘The right of the respondents to get the information must be decided on the basis of the law as it stood on the date when the request was made.’ So, the gazette notification by which Natgrid was exempted from the RTI Act being later than the date of Nayak’s application for information, the application ‘will not be hit by the said notification.’ The request for the information is still pending.

 

The RTI Act allows for the exclusion of intelligence and security organizations from its ambit. The National Investigating Agency, the Central Bureau of Investigation, the National Intelligence Grid have each claimed protection from scrutiny. The National Campaign for People’s Right to Information has argued that it is intelligence and security organizations that may claim this exemption under the law, whereas these three are investigating agencies.¹⁹ The call has gone unheeded. And, in the absence of a privacy law, there will not even be the means to access or correct personal data held by public authorities.

It is not known what work has begun at the Natgrid and, if something has, how it is moving ahead in the face of murmurs of resistance from the Cabinet. What we do know is that in July 2011, banks ‘refused to share information related to customer details with the government’s ambitious anti-terror Natgrid citing violation of the confidentiality clause and the possibility of fraud. The proposal – that is key to tracking terror financing by Natgrid – has been rejected by banks unless a specific legislation is brought that would make it mandatory to share information.’²⁰ 

We know little else about this agency which has been promoted as ‘a world-class integrated national security database – will facilitate quick access information on an individual’ and as helping to achieve ‘quick, seamless and secure access to desired information’ for intelligence and enforcement agencies.²¹ The safety of the data, the possibility of privacy being compromised or of the data falling into ‘wrong hands’ that was a concern in 2010 remains unanswered even as the project stubbornly persists.²² 

 

The DNA Data Bank: The UID project is a graphic illustration of keenness to converge demographic, biometric, socio-economic and personal data. When the project traversed the ground from voluntary enrolment to coercion through threat of exclusion and illegality,²³ the idea of the database citizen/resident became easy to understand. The story of DNA is somewhat similar even when it is different in significant ways.

 

A draft DNA bill has been floating in ether since 2007.²⁴ There have been sporadic demands for creating a DNA database of convicts, especially of violent crime such as rape and murder.²⁵ In 2011, a revised Human DNA Profiling Bill surfaced. This, like its 2007 precursor, is ambitious and aims to legalize the collection and maintenance of DNA in seven categories: (a) a crime scene index, (b) a suspects’ index; (c) an offender’s index; (d) a missing person’s index; (e) unknown diseased person’s index; (f) a volunteers’ index; and (g) such other DNA indices as may be specified by regulations...’²⁶ 

This is a wide spectrum, way wider than the collection of DNA of convicts. The DNA so collected may be used, among other purposes, ‘for creation and maintenance of a population statistics database that is to be used, as prescribed, for the purposes of identification research, protocol development or quality control provided that it does not contain any personally identifiable information and does not violate ethical norms…’²⁷ The information contained in a DNA Data Bank may be made available by a Data Bank Manager for ‘(a) the sole purpose of proper operation and maintenance of the DNA Data Bank; and (b) training purposes.’²⁸ And so on.

 

In a contributing study in the run up to the eleventh five year plan, there is evidence of curiosity that demands an explanation. In an elaborate section on DNA, the working group asks for the development of DNA databases, amidst other purposes:²⁹ ‘to use DNA sampling for human population analysis with a view to elicit signature profiling of different caste populations of India to use them in forensic DNA fingerprinting and develop DNA data-bases.’ This categorization is potent.

A young scholar doing his doctoral research in the field of DNA research,³⁰ Subhadeepta Ray explains:

In 2009, the Institute of Genomics and Integrative Biology (IGIB) Delhi performed the successful sequencing of the complete genome of an Indian citizen. It was a path breaking achievement putting India in a select club of six nations which had hitherto achieved a similar feat. The project showcased the scientific capabilities of the Indian science establishment in garnering ‘technical expertise’ in sequencing the human genome.

 

This was part of a larger project – the Indian Genome Variation Consortium (IGVC) envisaged by the Council of Scientific and Industrial Research (CSIR) and its constituent laboratories. Launched in 2005, the IGVC was a genome mapping survey trying to associate genes and diseases prevalent in various social groups of India.

In comparison, the early research in India using human DNA focused on tracing the migratory patterns of various population groups, and their the relatedness to each other. The Centre for Cellular and Molecular Biology (CCMB), Hyderabad, had conducted studies establishing that the Jarawa and Onge tribes of the Andaman Islands were probably the first migrants out of Africa into the Indian subcontinent dating back to some 50,000-60,000 years ago.

Thus evolutionary history of human communities and disease association studies of various population groups span the same experimental set up using human DNA technology. Crucial to both these aspects are the tribes and castes who constitute the ‘People of India’. The scientists believe that the principle of endogamy enshrined in the caste system has ensured the preservation of pure gene pools, unlike in the West where intermarriage, migration and immigration have led to the loss of genetic integrity. Thus the ‘People of India’ are unique in their genetic diversity and form a valuable ‘bio-resource’ through which such studies can be conducted.

The experimental set-ups of the Indian laboratories in these particular aspects have been spawned by the success of the American Human Genome Project (HGP) which was launched in the 1990s. Since most genome projects in the western world did not represent Indian population samples, it was felt that the IGVC would be a remedy in that direction. Concerns that the HGP evoked mark the Indian science establishment as well. I list here issues stemming from these new developments in the field of biotechnology in India.

 

First, it marks the conflation of biologics and informatics. Storage systems in the form of databases makes it possible to translate, store and disseminate genomic sequences across the globe through the internet. Thus the IGVC is an informatics project in the sense that the biologics of the DNA is converted into computer data resulting in a database of ‘biological citizens’. There is the possibility of seamless transfer of this data into other kinds of informational data collected as part of citizenship profiling.

Second, these developments generate both hype and hope, thus ushering us into a new era of genomic medicine. It is said that tailor-made personal medicine that could be used in therapeutics for the treatment of a host of diseases is just around the corner with knowledge gained from the full sequencing of the human genome. It is ushering in a new discipline of pharmacogenomics or molecular medicine. Yet, we are very far away from the actual therapeutics part and have not produced any drug which works as genomic medicine.

Third, it brings to the fore the intense tension between ‘public’ and ‘private’ efforts in sequencing. The American HGP was initially conceived in the tradition of science for the benefit of public good. Craig Venter one of the key scientists broke away from these public laboratories and set up his own private company called Celera Genomics. This move saw a bitter controversy among scientists who derided such efforts of Venter to patent human genes for profit. Human DNA thus becomes a source of ‘bio-value’. This tension signifies a trend towards corporatization of biology. In the case of the IGVC, access to the database is free, but any commercial breakthrough by any private party, requires licensing from the CSIR laboratories.

 

Fourth, despite the optimism sounded by scientists about the revolution in the making, many raised concerns about the spectre of a new eugenics emerging as a result of such exercises. Issues regarding genetic essentialism – the source of diseases in the individual’s genetic make up – throw up serious concerns. Fears range from genetic discrimination in employment opportunities, to access to medical insurance based on risk and the supposed predisposition to disease. These concerns ignore factors like basic social inequity of the health sector stratified across populations. There is a tendency to shift towards genetic diagnostics, testing of individuals and screening of populations, which may be necessary in some cases and unwarranted in many, resulting in over medicalization of patients and increasing the burden of health care.

Finally it institutionalizes an entire industry of bioethics where genetic counsellors and social science experts try to grapple with ethical issues generated through this genomic exercise. What do notions of individuality like voluntary informed consent mean to an ‘illiterate’ Jarawa tribal? We need to evolve ethical protocols that take care of the end stage of research. These may include concerns like what happens to the samples after the research is over. Will they be diverted to a purpose other than that for which consent had been taken? How will the results impact the community, especially when caste and tribal categories are embedded in the sample collection exercises?

 

This is a technology in the throes of emergence, with potentialities of which we are not fully aware, where both possibilities and dangers need to engage our imagination.’

If these concerns do not enter public debate,³¹ but are allowed to be determined by special interest groups and in chambers where power echoes, the consequences of unbridled curiosity may well spiral out of control as, indeed, is already indicated.

The NTRO, NCTC, Natgrid are signatures of an extraordinary state of curiosity which is surely and steadily being routinized. There is an expanding galaxy of agencies that are seeking shelter from accountability. It is significant that Manish Tewari had to pilot the Intelligence Services (Powers and Regulation) Bill 2011 as a private member, while the government maintains what seems a studied distance. The imagination that produces Human DNA Profiling Bill, the UID project, the National Population Register along with the information being gathered and converged through the socio-economic census and the caste census reveals an unrefined curiosity and an inordinate desire to create the database citizen.

 

Footnotes:

1. Crime and Criminal Tracking Networking and Systems, see http://ncrb.nic.in/cctns.htm

2. National Investigation Agency, see http://nia.gov.in/

3. Public Information Infrastructure, see http://iii.gov.in/

4. ‘Infosys, Wipro Get CISF Cover’, Business Standard, 14 July 2009 at http://www. business-standard.com/india/news/infosys-wipro-get-cisf-cover/363864/; ‘Post-26/11, Big Private Firms Choose CISF to Provide Security Cover’, The Economic Times, 27 November 2011 at http://articles. economictimes. indiatimes.com/2011-11-27/news/30444752_ 1_cisf-men-central-industrial-security-force-private-sector; ‘Reliance, Infosys Owe Dues to CISF, Says Home Ministry’, The Economic Times, 3 May 2012 at http://articles. economictimes.indiatimes.com/2012-05-03/news/31558840_1_cisf-act-central-industrial-security-force-dues

5. Rakesh Bhatnagar, ‘Court to Probe Into National Research Organisation Rs 800 Crore Scam’, DNA, 17 August 2011 at http://www.dnaindia.com/india/report_court-to-probe-into-national-research-organisation-rs800-crore-scam_1576748 .

6. Saikat Datta, ‘A Fox on a Fishing Expedition’, Outlook, 3 May 2010 at http://www. outlookindia.com/article.aspx?265192

7. Ibid.

8. Chandan Nandy, ‘Under Veil of Secrecy, Elite Outfit Gobbles Funds’, Deccan Herald, 20 March 2012 at http://www.deccanherald. com/content/236121/under-veil-secrecy-elint-outfit.html

9. Dalip Singh, ‘NTRO Transfers Officer for Exposing Corruption’, India Today, 14 June 2011 at http://indiatoday.intoday.in/story/ national-technical-research-organisation-tranfers-officer-for-exposing-corruption/1/141405.html

10. Suvojit Bagchi, ‘UAV-Generated Images now "Routinely" Obtained in Maoist Areas’, The Hindu, 2 November 2012 at http://www.thehindu.com/news/national/uavgenerated-images-now-routinely-obtained-in-maoist-areas/article4055571.etc

11. Muzamil Jaleel, ‘A Law Against Liberty’, The Indian Express, 4 December 2012 at http://www.indianexpress.com/news/a-law-against-liberty/1043847/

12. Office Memorandum containing the National Counter Terrorism Centre (Organisation, Functions, Powers and Duties) Order 2012, para 3.5 at http://www.satp.org/satporgtp/countries/india/document/papers/2012/NCTC_2012.pdf

13. Personal sensitive data includes password, financial information such as bank account or credit card or debit card or other payment instrument details, physical, psychological and mental health condition, sexual orientation, medical records and history, biometric information, as per rule 3 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information Rules 2011.

14. Clause 6 of the Rules, ibid.

15. Vinay Kumar, ‘ "Big Brother" Fears Stall Chidambaram Data Plan’, The Hindu, 14 February 2011 at http://www.thehindu.com/news/national/big-brother-fears-stall-chidambaram-data-plan/article106301.ece

16. ‘Cabinet Nod to Fortify Security-Related Infrastructure’, The Times of India, 15 June 2012 at http://articles.timesofindia.indiatimes. com/2012-06-15/india/32253800_1_natgrid-national-intelligence-grid-cabinet-nod

17. Venkatesh Nayak v. Natgrid and Ministry of Home Affairs, Appeal No CIC/SS/C/2011/00531 decided on 25 January 2012.

18. Information Commissioner v. State of Manipur (2011) 13 SCALE 460.

19. ‘Citizens’ Group Opposes RTI Relief for Three Probe Agencies’, The Times of India, 19 May 2011.

20. Himanshi Dhawan, ‘Banks Refuse Natgrid Client Info’, The Times of India, 12 July 2011 at http://articles.timesofindia. indiatimes.com/2011-07-12/india/29764649_ 1_natgrid-national-intelligence-grid-intelligence-agencies

21. ‘CCS Seeks Tighter Privacy Safeguards in Natgrid Proposal’, The Times of India, February 2010 at http://articles.timesofindia. indiatimes.com/2010-02-11/india/28135314_ 1_home-ministry-ccs-natgrid

22. ‘Natgrid Chief’s Raghu Raman’s Pay is Ten Times That of Prime Minister Manmohan Singh’, Mail Today, 23 August 2012 at http://indiatoday.intoday.in/story/natgrid-chief-raghu-raman-pay-prime-minister-manmohan-singh/1/214290.html. Captain Raghu Raman’s contract has been extended by 36 months from 1 June 2012.

23. Shivangi Narayan, ‘Enrolling for Aadhar no Longer Your Choice’, Governance Now, 30 November 2012 at http://www.governance now.com/gov-next/egov/enrolling-aadhar-no-longer-your-choice; Neelam Pandey, ‘Keep Your UID Cards Ready to Get Married, Buy House’, The Hindustan Times, 28 November 2012 at http://www.hindustantimes.com/ India-news/NewDelhi/Keep-your-UID-cards-ready-to-get-married-buy-house/Article1-965690.aspx

24. Draft DNA Profiling Bill 2007 at http://dbtindia.nic.in/DNA_Bill.pdf; ‘Government Crawling on DNA Profiling Bill, CBI Urges it to Hurry, Cites China’, The Indian Express, 12 July 2010 at http://www.indianexpress. com/news/govt-crawling-on-dna-profiling-bill-cbi-urges-it-to-hurry-cites-china/645247

25. Pushpa Narayan, ‘A Prisoner DNA Database: Tamil Nadu Shows the Way’, The Hindu, 17 May 2010 at http://articles. timesofindia.indiatimes.com/2010-05-17/india/28319045_1_dna-database-blood-samples-prison-officials

26. Clause 32 of the Bill.

27. Clause 40.

28. Clause 41.

29. Report of the Working Group for the Eleventh Five Year Plan (2007-2012), prepared by the Department of Biotechnology, Ministry of Science and Technology in October 2006 at http://planningcommission.nic.in/aboutus/committee/wrkgrp11/wg11_subdbt.pdf at p.152.

30. Subhadeepta Ray’s doctoral research in Sociology at the Delhi School of Economics is on ‘Recast(e)ing Science: a Sociological Study of Research Practices in Genetics.’ This section was written exclusively for this article.

31. Report of a Group of Experts on Privacy (Chairperson, Justice A.P. Shah) set-up in the Planning Commission and turned in October 2012 was one attempt at defining the contours of legitimate curiosity, at http://plannin gcommission.nic.in/reports/genrep/rep_privacy.pdf alongwith Corrigendum at http://planningcommission.nic.in/reports/genrep/corr_privacy3110.pdf. I was a member.