The draft bill, in a single stroke, manages to puncture all kinds of aspirations for privacy or open data sharing.
The obsession of nations with maps is an ancient phenomenon. Beginning with the zealous guarding of maps through an intricate ecology of sailors, sea captains, ministers and Spanish royalty in the 15th century – even as the “New World” and alternative routes to “the East” were being discovered, to the excellent account which Rudyard Kipling gives in his book, Kim, which is, in fact, a book about how two different states fight over the mapping of mountain terrain – the mapping mania, and the struggle to control maps is at least as old as the idea of the modern state itself, if not older.
So it should come as no surprise when the Indian government, on May 4, released a draft of The Geospatial Information Regulation Bill, 2016 to “regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to affect the security, sovereignty and integrity of India and for matters connected therewith or incidental thereto” .
The draft geospatial bill is a classic illustration of how the concern of the state tends to become about its own protection and about fostering its own existence at the cost of civil liberties. With its righteous (if unspoken as articulately) justification on the grounds of “nationalism” and “national security,” this bill (whose basic features have been concisely explained here), in a single stroke, manages to puncture all kinds of aspirations for privacy, open data sharing, human dignity, constructive speech or expression, and well, just plain reason. Here’s how:
State Problem 1: The “nationalist” need to control mapping through licensing regimes (read: colonial state continuities)
Licensing of media, while an important tool on many occasions such as the allocation of natural resources like newsprint and spectrum, and airwaves, actually has the most consistent history in India of being used as a method of State control over what people talk, how people talk, and to whom people can talk (see Report of the Second Press Commission of 1978 and the discussion surrounding it).
Historian Ranajit Guha, traces this state paranoia regarding people’s conversations back to the 19th century. This was a time when the British were greatly frustrated with all the “rumours” that used to float about then – these “rumours” also had a role in fueling the 1857 revolt (it was a “rumour” about the pedigree of army cartridges which served as “the spark in the powder keg,” so to say). But basically, the colonial state’s frustration over rumours was the frustration over its inability to control people’s conversations, and where the idea of media licensing regime was borne in India in the form of the Indian Telegraph Act, 1885. And this painfully sweet colonial fruit has spread its seeds in Indian law for well over a hundred years now, surviving the Constitution and now thriving well into the 21st century.
It is in this trend of events that the current draft bill on geospatial mapping can also be located. Section 3(1) lays down that without the “general or special permission” of a so-called Security Vetting Authority (which is provided to be set up especially under the Bill), “no person shall acquire geospatial imagery or data including value addition of any part of India either through any space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles, or any other means whatsoever.” Section 3(3) additionally specifies that such permission, if deemed appropriate, will be granted by the authority “within three months from the date of receipt of an application,” but given that it is India, you know that could be several years. And thus, following the wake of the colonial state, another attempt to control the free flow of information has been designed by the contemporary State of “free India.”
Licensing mechanisms in the field of community radio have plagued the industry and held back growth in the name of nationalism and national security. Are we to expect the same with maps and the host of geo-data online start-ups that are starting to grow in India?
State Problem 2: The “nationalist” suspicion of crowdsourced and open-source or any easily shareable mapping data (read: unconstitutional violation of free expression)
Section 3(1) of the draft bill reads like this: “Save as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Security Vetting Authority, no person shall acquire geospatial imagery or data including value addition of any part of India either through any space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles, or any other means whatsoever.”
So what constitutes “geospatial imagery or data”? Well, the funny thing is those terms are not exactly defined under the bill (bad legislative drafting is becoming so commonplace that it is not even worth commenting on), but rather, “geospatial imagery or data” is included under the category of “geospatial information,” and that is defined as following (see Section 2(e) of the draft Bill): “Geospatial Information means geospatial imagery or data acquired through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles including value addition; or graphical or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth or any information related thereto including surveys, charts, maps, terrestrial photos referenced to a co-ordinate system and having attributes.”
This definition is certainly one tall order. Especially the bit about “any other means whatsoever”. What is amusing is that it would have been a tall order even in the time when men and women only drew landscapes with flower pigments or charcoal (thus “mapping” the terrain), but in an age of high-tech smartphone cameras, Google Maps, OpenStreetMap, Foursquare, Facebook checkins, your Ola and Uber rides, Whatsapp location share, phone and car GPS systems and the very cute Mapbox, it borders on the ridiculous. What the paranoid state is trying to tell us is that it owns our surroundings. It owns everything we see around us. And all this, with very little subtlety or nuance. But then, as has been said, the nature of law, is violence.
This discomfort with accessible mapping will almost certainly clash with the guaranteed right to the freedom of expression under Article 19(1)(a) of the Constitution, since “right to information” (and therefore, “geospatial information”) has been read as a part of Article 19(1)(a) since at least 1975 (see Indira Gandhi v. Raj Narain). Though Article 19(1)(a) is limited by Article 19(2) which covers “laws in the interests of the sovereignty and integrity of India, and in the security of the State” with the shroud of constitutionality, the law in question nevertheless needs to qualify as a “reasonable restriction.”
This test, as amply clarified in the Shreya Singhal judgment last year (by referring to a 1989 Supreme Court judgment), lays down that what constitutes a “reasonable restriction” is as follows (see para 38): “The anticipated danger…” [eg. of national insecurity, which the law in question might be trying to erase] “… should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg.”
Though it is true that in the Shreya Singhal case, the discussion was not exactly around “sovereignty and integrity” and “security of the State” but rather around “public order” in this context, but the framing of Article 19(2) amply illustrates that “reasonable restriction” is a requirement common to both these grounds, so it might as well be extended to “sovereignty and integrity” and “security of the State.”
So the question then becomes this: Will this crazy regulation of mapping survive the standard of Article 19(1)(a) of the Constitution? It would seem not, since this Bill prevents one from drawing a map for a friend of yours who is new in town in the interest of safeguarding of national security etc. (as the Preamble of the draft Bill states), does seem “remote, conjectural and far-fetched.” Doesn’t it? So I guess what I’m saying is this: I think this Geospatial Information Regulation Bill, 2016 can also be argued to be declared a pretty unconstitutional bit of legislative draft.
State Problem 3: The “nationalist” fear of Internet which allows for easy flow of information (read: what happens to the State when citizens don’t need intermediaries?)
Academician Balakrishnan Rajagopal, traces the formation of the 21st century world of “connectedness” by narrating the story of how the latter part of the 20th century has seen citizens in different countries and jurisdictions interconnect and create movements in response to their common ailment- the State. (see Balakrishnan Rajagopal, International Law From Below). His story is not exactly about the Internet, but it gives a good sense of the larger story which the internet story is certainly a part of- the larger story of people, and more narrowly, citizens of different sovereign States, managing to establish conversations with each other without going through the intermediary of the State (think passports, travel, visa v. IRC chats, Snapchat, and Facebook).
So what does the State do when it feels that a new medium which allows for the free flow of information, viz. the internet, is making it irrelevant? Well, it drafts this (see Section 4, draft Bill):“Save as otherwise provided in this Act, rules or regulations made thereunder, and with the general or special permission of the Security Vetting Authority, no person shall disseminate or allow visualization of any geospatial information of India- either through internet platforms or online services, or publish or distribute any geospatial information of India in any electronic or physical form.”
And also, Section 5, the most relevant portion of which states: “…No person shall, in any manner, make use of, disseminate, publish or distribute any geospatial information of India, outside India, without prior permission from the Security Vetting Authority.”
In this manner the State makes its intentions clear: It does not want its own citizens to share information about their joint holdings (which is the body of the country, i.e. “geospatial information.”), with citizens of a different nationality. This takes the form of the legal issue of jurisdiction and enforcement in the so-called digital age. So the scope of the proposed bill also extends to not just citizens in and outside the country but also to “any person who commits an offence beyond India” under the Act (see Section 1(4) of the draft Bill). Be it either the Blackberry case, Google’s run-in with the Competition Commission Of India, or the more recent State obsession with licensing OTT/web services, the state and the connected nature of the Internet have always had problems with each other.
In order to enforce this (though how? where? why?), the state carves Section 18(2) of the draft bill: “The Enforcement Authority shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder has been committed, shall have access to any computer resource, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.”
And Section 18(3): “For the purposes of sub-section (2), the Enforcement Authority, by order, direct any person in charge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.”
So with these two “enforcement” sections, “solutions” to jurisdictional issues begin to violate an idea of privacy for the citizen. And it has been well-argued that privacy in fact, is a right protected by the Constitution. But then, does it even matter? Because this trend is neither new nor innovative. The Information Technology Act, 2000 already contains provisions for similar seizures (see Sections 76, 68 and 69 of The Information Technology Act, 2000). But when paranoia rules the state’s decision-making, no legal measure — including 7 years jail time — can seem enough.
Smarika Kumar is an independent legal researcher and was formerly with the Alternative Law Forum, Bangalore.