Privacy is a very constitutional issue and just making it a transactional data protection kind of issue is not the best way to go- Abhayraj Naik, Azim Premji University, Bengaluru. (Part-II)

Sandeep Chaudhary
  • With this technological advancement in modern era e.g. cloud computing, AI, Cybersecurity etc. Do you think our government is well prepared to stand out from the crowd?

In my imagination, technology and environment are quite connected as well. There is common issue of meta level for e.g., the issue of risk, the issue of democratic control over policies and decision making. Speaking specifically, even the idea of impact assessment which has moved from environmental thinking to technology thinking. So, now even in the recent discussion on data protection or talking about data protection impact assessment and so on, there is lot of thinking so let me speak this term, I don’t think India is well prepared on technological policies front and in a sense again the concern arises from common reason. While we might be an independent country, I think lot of mindset of ruler and governor system are very colonial and they refuse to let people be involved in the decision-making. It is a very centralized, talked down, secretive system of decision making. It is almost authoritarian in some areas.

Even our data protection, we do not have any data protection law. To be honest I am not very comfortable with the data protection being the be all and end all privacies concerned. I think privacy is very constitutional issue and just making it a transactional data protection kind of issue is not the best way to go. It is also very problematic that I say, decision making is not transparent and organization such as VIDHI, they had a very controversial and problematic role in policy making. I think, recently there have been some articles that have come out including caravan that pointed out how few consultancies are involved along with the NITI aayog, all decisions get taken without any proper involvement of the public. Even Justice Srikrishna himself who was a part of expert committee has denounced the form of final bill i.e., Data Protection Bill. 

I only think of AI and data just as something to be exploited to promote the economy. It is almost similar to how natural resources are exploited by policies to promote the GDP. So, there is not adequate appreciation of the fact that it is human being whose data is subjected to algorithmic decision making and as the consequence right of people do not get the attention that they do require. Even the NITI aayog strategy to pay upon AI was commissioned to a consultancy and the consultancies are mostly interested in promoting economic growth and GDP and not in question of what are the privacy rights? What is the transparency consideration? Who will be responsible when the harms occur? I think when it comes to technology policy in India, much like the environmental sphere problem is that the policy making happens in locked down way, it is not transparent. It has the nexus between business interest and government and is cause of much alarm. Overall Human Rights, Constitutionalism and fidelity for people to be involved in decision making gets short risked in both of these areas.

  • As you have co-authored “Green Tapism: Review of EIA notification, 2006”. What is your comment on recent EIA notification draft, 2020?

My Organization “Initiative for Climate Action” has made some submission to the ministry of environment and forest department on the draft EIA, 2020 and I would encourage you and your readers to check out our submission and they are available on our website as well which is I think, most of those comments were focused on climate change consideration and how they are missing in EIA draft. I have intensely researched on EIA systems, EIA laws, EIA regulations for past 15 years and I have also been studying development in other parts of the world. When it comes to present EIA draft, I don’t know where to start by pointing out the problems with the draft, with the approach and with the limitation of its coverage. Many commentators have written on this and it is well canvassed in public domain and I do not want to repeat what many others have already said. I think, at this level my point would be in following ways i.e.,

1) The draft is very dangerous because it further centralizes decision making. We should be actually going other way round; we should be following the logic of 73rd and 74th amendment and giving people and giving communities the power to decide. Decision making should happen at the lowest level and at a level closest to the issue and in some places decision making might need to happen at the state or national or international level for e.g. inter-state or inter-country boundary etc. I acknowledge that, but the general default principle is that the decision making should happen at the lowest level.

2) Talking about the big problem, meta level problem is the draft continues to exclude activities that are very dangerous to the environment from the requirement of EIA problems. Even the massive solar farm for which many people would say – “solar hai toh it is good” but the massive solar farms has many negative environmental consequences and what is not very well known is solar farms were secluded by MOES and expressly excluded from the purview of older EIA laws. The EIA draft 2020 removed even more activities, many negative activities harmful activities including activities related to urban development that devastate our urban environment, the few remaining species that we have, the very stressed water situation. Our cities are tinder boxes that’s where the devastation is going to happen first including climate related impact being felt more succinctly. Unfortunately, The EIA draft, 2020 gives even more liberty to business and development interest over the environment.

3) It is a very political point, the EIA draft, 2020 is almost like someone who wants to make lots of money through India sort of come up with the wishlist with what to be changed. The EIA draft is not actually servicing the interest of environment as much as interest of unethical business. And the process was also appalling, for example – amidst the pandemic pushing forward the radical restricting of environment regulations, refusing to make the draft available in any language except English and Hindi. Even now, the Tribune has reported- after the Delhi HC has ordered the translation of draft into local languages and the translations have been carried out but are still not released because the ministry has recommended that not to be released till, they provide further instructions.

So, the entire approach is very rigorous, it is very authoritarian, talked down and sort of anti-people and I cannot repeat in stronger language, in a sense it is unconstitutional and against the ethos of the Indian constitution. As you remember we are a republic, democratic country. We have fundamental rights; the state is our trustee it’s an owner not a boss. Article 39B says that the material resources of the community should be distributed as to subserve the common good. So, in general the EIA draft, 2020 is really a pathetic piece of regulatory reforms.

Part 1 of the interview:

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