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‘Privacy is a fundamental right that cannot be traded for other rights,’ says TMC MP Mahua Moitra

Mahua Moitra

“The general mood on the PDP [Personal Data Protection] Bill is that this [privacy] is something we are giving you as a favour. This government is very far removed from the basic idea that privacy is something that is fundamental to your being. They are treating privacy as a luxury,” Trinamool Congress MP Mahua Moitra said during a conversation with journalist Faye D’Souza on Monday. She was speaking at an event organised by the Internet Freedom Foundation to mark the third anniversary of the landmark right to privacy judgement.

On how right to privacy must not and cannot be traded for other rights, even during a pandemic: “Every dictatorial, majoritarian regime since time immemorial has used that excuse. … The two are not mutually exclusive. Just because I need care during a pandemic doesn’t mean I have got to give up every right that is fundamentally guaranteed to me by the constitution. This is a very fundamental truth that all of us have to understand and fight for. … It is not mutually exclusive. When people in the villages ask me this, I use one example — ‘Is it fair of someone to make you choose between your wife and your mother?’ — because you need to make people understand that you don’t need to give up one love the other more,” she said.

‘Government must safeguard people’s privacy’

On government’s prerogative to safeguard citizens’ privacy: “There is a great divide between the rich and the poor, between the educated and the uneducated. … the government has to act as the parent, the government has to act as the guardian and the government is failing in its responsibility to look out for the privacy for the millions and millions of people who either don’t understand, or are not empowered enough to stand up for themselves. I think that’s the very big gap between, even when the bill becomes an act an in whatever form — if your basic idea is that this is something that we are doing just because we need to do and this is not something that we are doing, for example like in Europe or the UK, which is that privacy is a fundamental right, that is the big divide in India today.” she said.

On how Indians need to value their data and privacy: “Mr [Osama] Manzar [of Digital Empowerment Foundation] was speaking before me [about] that lady who had no access to her bank account. I see this all the time. I work in the rural areas and when we try and tell people, ‘Don’t give your Aadhaar number’, ‘Don’t go for Aadhaar’, ‘Don’t sign up for Aarogya Setu’, they just don’t get it because privacy is not something that Indians have ever treated as a valuable commodity,” she said.

“The people in India, the poor in India don’t value themselves as a consumer. The Indian public is empowered to think of themselves as a voter. Therefore they say that if you don’t do this, we will remove you, that they have understood for a long time. But when it comes to viewing themselves as a consumer, when it comes to valuing their personal data as of use to somebody, … because they don’t value themselves and their personal data, they don’t think anybody else can have value for it. … That’s where the government has to come in and be their guardian instead of consuming their data and making money.” — Moitra

Moitra cited a case where in villages, when she told villagers that they shouldn’t give their Aadhaar details to get a Jio connection, the villagers told her that they “don’t care” and they give it to Jio because it gives them free data, free calling and cheaper plans than Airtel and Vodafone.

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On the dangers of a paternalistic government that controls people, and failure of judiciary: “I think we crossed that line a long time ago. And today, sitting in opposition, I really feel that every minute. People say, ‘Why don’t you do anything?’ What can you do, tell me this, when you are sitting in the Parliament? They [the government] have used this pandemic to put through every ordinance possible. There is no discussion. When there is no legislative oversight and the courts have completely failed. I mean, I am sorry,” she said.

Moitra added: “Earlier, when the Supreme Court judgement went against us, we would say, the court said this so we respect it. Today, when a judgement comes out against somebody, the first thing that enters people’s minds is where is the judge? What is his background? Was he in Gujarat? Is he going to go to the Rajya Sabha? Is he hankering for governor of Maharashtra after this? Is he hankering for the NCLT chairmanship after this? Is this not shameful? When the perception of judiciary is compromised, whether the judiciary is compromised or not is secondary, but when the perception of judiciary is compromised to such an extent, and you have such a majoritarianism, where are the checks and balances? That is why we have all become subjects.”

‘Internet shutdowns need better oversight mechanisms’

On internet shutdown in Kashmir, and need for adequate oversight mechanisms: “Last week, in the [IT Parliamentary Standing] committee, this cutting off the internet was on the agenda. I can’t discuss committee proceedings, but this was very much brought up on the agenda. … The Supreme Court, in January 2020 judgement, said that when you are shutting off the internet, you can only do it for an X amount of time, there is no outer limit right now. So what they keep doing is that any one at a joint secretary level can go on signing this every 15 days. There’s no review process [because] in the review process, the executive looks after the executive. So the state home secretary will issue this and the review committee consists of state law secretary and the state chief secretary. Which state secretary or which chief secretary is going to go against the orders of the [central] home secretary? … This oversight mechanism is not correct,” Moitra said.

She added, “In January 2020, the Supreme Court told the Ministry of Information Technology and the Department of Telecommunications that you have to come back and give us a review. This is something that has still not been done. … We are fighting for this by putting the pressure on the Department of Telecom but they keep passing the buck to the Home Ministry. Everyone keeps passing the buck. There has to be an oversight mechanism. We have to know how many times you are increasing this and in what sorts. You can’t just blanket cut off 4G access or 3G access. We had an MP, and I am naming him, Mr Dubey who said, ‘I went to Jammu and Kashmir on a holiday and everyone has got 2G and everyone’s happy.’ I mean what are we talking about? We complain when we can’t do a video call on 4G and we are saying that an entire state that has only 2G should be happy? Since when has it become okay to have things like this? This is what the BJP has legitimised today. They have legitimised that is okay for people to have less than others and that is the biggest damage they have done against this country.”

[The Special Committee, which comprises of the Union Home Secretary (who also chairs it), Department of Communications’ Secretary and the Chief Secretary of the Union Territory of Jammu and Kashmir, was tasked to review internet shutdown in Jammu and Kashmir by the Supreme Court in January 2020.]

‘With Aarogya Setu, we are again going down the Aadhaar route of voluntary but mandatory’

On Aarogya Setu: “This is something I am speaking from personal experience. I don’t have Aarogya Setu. I spoke up against it. There was nothing in law that forced us to have it. It is not manadatory which is what even the Karnataka High Court has said the other day. … But the problem in our country is that no one questions authority,” she said. “So if they just say ‘Show us this’ most people show you that. I have gone into an airport, I have taken a train and they have asked me, ‘Where’s Aarogya Setu app?’ I said, ‘I don’t have it, it is not mandatory. Do not stop me.’ And I got in. People can say that ‘oh, you are an MP, that’s why you get in’, [but] I don’t travel with people, I travel in normal clothes. I don’t think people even know when I am telling them [about the app] so I think people just need to be aware that this is not mandatory and you don’t need to have it.”

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On the voluntary but mandatory nature of Aadhaar, and its comparison with the state of Aarogya Setu: “I think they are going down that route again and we have to fight it. If you remember, I was one of the petitioners against the Aadhaar-bank account linkage. In that case, they brought PMLA [Prevention of Money Laundering Act] as an example and we said that under PMLA, you are innocent until proven guilty. So till I am on a list of people that you might think have a Swiss account and then you want to look up my bank details via Aadhaar, sure. But till such time, you have no right to do it. They [the court] eventually said that this is not mandatory linkage. After that, in Parliament, this went on where they amended the Aadhaar Act and said that you can bring it in but even then, they have given us a time limit. I don’t think it is still mandatory. They have said that but I don’t think it is. The thing is we have to keep going to the court,” Moitra said.

[In 2017, Moitra had filed a petition in the Supreme Court against Rule 2(b) of PMLA that mandated Indians to link their bank accounts with their Aadhaar numbers. As of now, the government of India has made it mandatory to link Aadhaar with PAN by March 31, 2021.]

‘Government has [mis]used Facebook, WhatsApp to win elections’

On dissemination of misinformation via WhatsApp: “This is obviously very dangerous. I had spoken about this in Parliament and in many other forums saying that the last election [2019 Lok Sabha election] was fought on fake news and WhatsApp. … This was a WhatsApp election [where] the election strategy is WhatsApp and fake news. … People in our country, if they see something in print, they believe it to be true. Even educated people fall prey to it. My mother, she will look at something she receives on WhatsApp and say, ‘Have you seen this?’, and I say, ‘Mummy, it’s rubbish,’ but she says, ‘Oh no, but someone said it’. This is so widespread that people think that whatever they receive on WhatsApp is gospel truth, especially in villages where people are buying smartphones for the first time and WhasApp has really caught on as this big medium of communication and it’s really very widely used,” she noted.

On using fake news as an election strategy: “This is an election strategy. We have the honourable minister, Mr Amit Shah, in a meeting, come out and say, ‘What do you want to know. I can make people believe anything. You give me any truth, I can feed it to people.’ If that’s your election strategy and then you have got a very compliant Facebook and WhatsApp management structure in India which is bending over backwards,” Moitra said.

On potential collusion between Facebook and the ruling party: “We have called Facebook to depose before the IT Parliamentary Standing Committee on [September] second. You have seen the Guardian article, and we have seen it ourselves. Like I said, that inside the Parliament premises, we had the Indian public policy head of Facebook doing a special training for women MPs. [Point] A, why do women MPs need special technology training, I fail to know; are we dumber than the rest of them? And [point] B, this is the Parliament where no foreign company is allowed anywhere near technology, NIC [National Informatics Centre] handles everything. So who invited Facebook to come in and run the training session in a Parliament House Annexe room? They are obviously in with the government. We have seen it over and over again that they don’t take down content. There is a big fiasco right now in the US as well where some whistleblowers within Facebook have said that Facebook has been very pro-right even in the US. And this is something that is really blowing up in their face. Let’s wait for the second [September],” she said.

On how the size of Facebook poses a significant threat to democratic processes: “And yes, this is a very dangerous combination where WhatsApp and Facebook control as much of the market as they do, you have a government that is manufacturing fake content and Facebook is helping them disseminate it. And then, on the other hand, you have a weak legal infrastructure and a weak data protection act or a total absence of it so far. So the combination of all three means that there is absolutely no recourse for individuals,” Moitra suggested.

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On lack of independent media and media freedom in the country: “Why it is that the biggest media houses are controlled by one man, directly or indirectly?” She said that apart from the Wire and NDTV, none of the media houses were questioning the government.

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