Democratic Accountability in a Digital Era

Digital India

The government has taken onto itself to become a digital republic. Without a digital ID, the Unique Identity (UID) issued by the Unique Identification Authority of India (UIDAI), your ability to access government and private services, your entitlements like salaries, pensions and your rights like education, travel and living in your own home have been increasingly denied. Even with the UID your access to these, and more, is subject to digital apps that need to authenticate your biometric or your access to a mobile that was linked to your UID at the time of enrolment. If apps fail because there is no access to internet, power or because your biometric has changed, as all biometrics do, you can be denied every subsidy, benefit, service, entitlement or right till you get yourself a fresh UID. Until the Supreme Court of India read down the Aadhaar Act on September 26, 2018, if your UID was stolen and used by someone in possession of your biometric or mobile to take over your services, entitlements and rights, you had no recourse as section 47 of the Aadhaar Act prohibited the courts from taking cognisance other than if the UIDAI file a complaint. Most importantly, the UIDAI does not run the delivery of subsidies, benefits and services, nor is it in any way accountable for any failures in these processes. Furthermore, the UIDAI does not take any responsibility for any enrolments, identification and authentication, and the consequent entitlements, rights, programming interfaces and apps that depend on any of these, but simply licenses out these functions to private parties. The UIDAI does not take any responsibility for even a redressal mechanism itself but simply outsources these functions to private parties.

Digital payments is the next frontier. Not convinced that the Reserve Bank of India and its digital payment systems—the National Electronic Fund Transfer (NEFT) or Real Time Gross Settlement (RTGS)—are sufficient or even appropriate to facilitate digital money transfers, the government has been pushing apps built with the Aadhaar enabled Payment System (AEPS) and the Universal Payments Interface (UPI) by a non-government private company, the National Payments Corporation of India (NPCI). These apps, based on the “open” programming interface (API) called India Stack, developed by “volunteers” from among former UIDAI employees who designed the UID and Fintech companies, anonymise money transfers and destroy the trace of money from transfer order to transferee. This loss of trace is similar to what bankers call money laundering. Payment wallets, like PAYTM, also allow unregulated generation of digital money and enable making of untraceable payments.

Not convinced that government’s records can be accessed to query for information about documents like birth certificate, driver’s license, election card etc. issued by the government itself, the citizen is asked to upload the copies of these documents to a digilocker and provide them to organisations asking for them.

Even voting has been undertaken by Electronic Voting Machines that are not capable of issuing receipts to voters, not capable of receiving votes through multiple channels like ballot papers, mobile phones and internet, and that are not capable of leaving an audit trail of all votes being counted for a candidate so as to ensure that no genuine votes were rejected and none that were counted were electronically generated.

The government’s incessant obsession for digitisation has become pervasive in government. The digitisation of the government is creating the blind belief that anything digital is automatically accountable and desirable. In such times concerns about democratic accountability become even more pronounced than ever before.

Digital Accountability

Indian democracy gets its meaning from the Preamble to the Constitution of India. The Preamble promises justice, liberty, equality and dignity for the people of India. The erosion of any of these can only be of benefit to private interests and not benefit public interest. We can, therefore, consider that the provision of these serves public interest.

The preamble also promises India to be a sovereign, socialist, secular, democratic republic. The erosion of any of these can only be detrimental to national interest. We can therefore consider that any protection of these would be in national interest.

We can, therefore, conclude that Indian Democracy can be meaningful only when public interest and national interest are protected and furthered. Therefore, in a digital age too, whether democracy is being upheld or not can be judged by whether public interest and national interest are being served or not.

Protecting the citizens: The public interest argument

The government is not about service delivery, efficiency, becoming digital, becoming paperless, presence-less, or even cashless. It is about upholding public interest. Public interest is upheld when the ideas of justice, liberty, equality and dignity that were promised by the founding fathers of the country are upheld by the government and its institutions. Democratic accountability requires that these principles of public interest are not violated.

Justice is destroyed when the misuse of UID is not distinguishable from the use of the UID. The mere use of a number, or the uncertified, unverified and unaudited biometric data associated with the number, being treated as a proof of presence and affirmation of a transaction leaves no recourse to a person whose UID number or biometric data has been misused to commit fraud. Not only does it fail to establish the presence of a person, it fails to establish identity. The recent notice by the UIDAI to various parties accessing its database for authentication, confirms that such misuse of stored biometrics is not only possible but has happened. The use of the UID as a proof of transaction by a person is as unjust as calling a person to act as witness against herself, if not worse. Furthermore the Aadhaar Act also prohibited access to justice by way of preventing courts from taking cognisance of injustice except when asked by the UIDAI. Similarly, justice is destroyed when EVMs steal votes meant for one candidate, in favour of another. When digital initiatives destroy justice, they usually also destroy access to justice. Those wronged in these instances cannot approach the courts or have limited means available in order to seek redressal under both the Aadhaar Act and the Representation of People Act.

When a digital program like the UID eliminates the choice of alternate identification documents issued by government agencies, that are responsible to deliver subsidies, benefits and services (for example rations, LPG cylinders, licences to drive vehicles, obtain passports, obtain subsidy, benefits, pensions, salaries and jobs), it not only fails to uphold the promise of liberty, it destroys responsibility of these parties to treat every person equally and deliver. When the EVM becomes the only way a vote may be counted, the right to choice has been destroyed.

When a government or a private service provider creates classes and treats those having or not having an UID differently, it violates the promise of equality. As those with UID get increasingly different processes and procedures for obtaining their LPG cylinder, rations, passports, jobs, filing tax returns, obtaining health benefits on pregnancy, getting compensation as a victim of Bhopal Gas tragedy or even getting meals for mid-day meals, the government creates two unequal classes in society against the promise of equality to we the people by the Preamble.

When the claim of human rights, entitlements and citizenship is subject to a person’s biometric matching in a database, and not to her need for the human rights as enshrined in the United Nations Declaration of Human Rights, her dignity is violated. When digital initiatives deny the non-digital world, they violate dignity of those with no access, no digital literacy or those who are digitally challenged.

The argument regarding public interest would challenge the non-digital and digital system with questions of justice, equality, liberty and dignity. The digital system will need to demonstrate that it does not undermine the ability of the individual to access and obtain justice. It will need to demonstrate that the right to choice, including the choice to use the digital initiative, is protected by digital initiatives. The digital system will need to demonstrate that it does not create processes that distinguish those using or rejecting the digital initiative. The digital initiative has failed to demonstrate that it does not undermine the dignity of those who opt in or out of the digital initiative.

Protecting the Nation: The national interest argument

National interest is not about economic growth, foreign direct investments, trade, becoming a super-power, digitisation or even technological progress. It is about upholding the sovereign, socialist, secular, democratic republic nature of the nation by the government and its institutions as was promised by the founding fathers of the nation.

In order to protect national interest, the State and its institutions must also protect and enhance the promise of remaining a sovereign, socialist, secular, democratic republic. Democratic accountability requires that this promise of national interest is not violated.

The idea of sovereignty is considered to include absolute supremacy over internal affairs within its territory, absolute right to govern its people, and the freedom from external interference in these matters. In a democratic sovereign nation people must have authority over governance, not private parties. Any digital intiatives taken must guarantee all this, must not violate any of these rights.

In practice, by privatising or outsourcing any part of governance, the government compromises its sovereignty.

In the case of the UID number, the UIDAI both privatised as well as outsourced the enrolment in the UID database as well as the authentication of individuals and the generation of beneficiary rolls using e-KYC. The rolls of residents of India and those who are beneficiaries as well as those on the rolls who may be authenticated during a transaction are decided by private and outsourced organisation, no longer by the people of India with authority over governance.

Similarly, in the case of the EVM, the EVM is manufactured by private parties and only assembled in India by Bharat Electronics Limited (BEL) and Electronics Corporation of India Limited (ECIL). The government gives up its supremacy over something as important as elections to technology companies and manufacturers both inside and outside the country.

The Smart Cities Program of the government outsources the powers of the Municipal Body to joint-venture companies who have signed MoUs with various government agencies from different countries and multinational companies. This too surrenders the authority of a democratic government to have supremacy over governance.

As a socialist country, India must ensure the socialist nature of delivery of services. This requires that people must own the delivery of services, not private interests.

As the use of UID is coerced across services, private, outsourced interests determine the delivery of services, not the people of India. Even the move to a cashless economy has been promoted by pushing for use of banking transactions by non-government and non-people owned entities like the National Payments Corporation of India (NPCI) and PAYTM through instruments that are neither regulated nor auditable by the people of India. The strange promotion of Universal Payments Interface (UPI) and Aadhaar Enabled Payment System (AEPS) over the NEFT run by the Reserve Bank of India not only violates the socialist but also the sovereign nature of the banking system.

As a secular nation, digital initiatives must not violate the secular nature of governance. This means that no digital app or initiative must be driven by religious or spiritual considerations. If digital technologies name themselves with religious, spiritual considerations, collect information or undertake religious or spiritual functions they would violate the secular nature of the country.

As a democratic nation, digital initiatives must ensure they protect democratic norms. This means that no digital initiative must violate social equality. Social equality would be violated if a digital initiative altered the ability of citizens to be equals in making decisions.

The UID number alters the ability of different persons to be equals in decision making as they are not equally treated by the government in their access to justice, liberty, dignity and their demand for equality. The EVM does not give equal ability to citizens to make decisions—it weighs in favour of those with the ability to cast votes through digital booth capture and those with the ability to digitally capture digital vote counting and hijack the elections.

As a republic the digital initiatives must ensure that the supreme power must remain with the people, not any other institutions. This requires that no digital initiative should be able to transfer the power to institutions that do not belong to the people.

The UIDAI has transferred the enrolment and authentication of those who will be granted rights, entitlements and benefits to private parties. The government has transferred the DBT and consolidated Fund of India transfers to a non-government company, the NPCI. The new Goods and Service Tax (GST) will be collected by a non-government private company, the Goods and Service Tax Network (GSTN). All of these digital initiatives erode the republic of India.

The national interest argument will need to challenge the non-digital and the digital system questions of the sovereign, socialist, secular, democratic and republic nature of the nation. The digital initiative will have to demonstrate as to how it strengthens sovereignty or at least does not worsen it in comparison to the non-digital system. It will need to demonstrate that it does not undermine the socialist nature or the people’s ownership of services. It will need to demonstrate that it is free from religious and spiritual influences. It will also need to  demonstrate that  it does not undermine democracy. The digital initiative will also need to demonstrate that the power of the people for self rule remains undiminished.

Whose role is it to enforce digital accountability in a democratic world?

In September 2018, the Supreme Court of India delivered judgments on over 38 clubbed petitions on digital India, mostly relating to the UID. Paragraph 127 of the judgment of Justice Sikri for himself, the Chief Justice and Justice Khanwilkar frames the 10 issues they considered. Paragraph 100 of the judgment of Justice Bhushan frames 18 issues he considered. Paragraphs C1 and C2 of the judgment of Justice Chandrachud frames the issues he considered. None of the issues framed in the judgment hold accountable the Union of India or the UIDAI or the current implementation of Digital India to protect public interest or national interest as defined in this paper.

The judgment considered “legitimate state interest” and “proportionality” as defined in the Privacy Judgment in the Puttuswamy matter. Paragraph 71 of the Judgment of Justice Kaul in the Privacy Judgment summarises the test for proportionality and legitimacy:

The concerns expressed on behalf of the petitioners arising from the possibility of the State infringing the right to privacy can be met by the test suggested for limiting the discretion of the State:

 (i) The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic society for a legitimate aim;

(iii) The extent of such interference must be proportionate to the need for such interference;

(iv) There must be procedural guarantees against abuse of such interference.

‘Any sanction of law’, however, does not automatically meet the criteria of serving public or national interests as defined in this paper. ‘Any action deemed necessary in a democratic society for a legitimate aim’ is both vague in defining democratic accountability and unbounded in legitimacy. ‘The proportionality of interference’ is left to discretion of the adjudicating officer. ‘Procedural guarantees against abuse of interference’ admits to the possibility of abuse by interference but at the same time fails  to prevent interference.

Without a test of the public interest, or ensuring the protection of justice, liberty, equality and dignity of the people, and national interest, or the protection of  sovereign, socialist, secular, democratic and republic nature of the nation, there can be no democratic accountability. Not just Digital India, but the legitimacy of every government action should be accountable to the principle of public interest and national interest.

There is no evidence of the Cabinet Secretary, who is coordinating the executive’s drive to use the UID and implement Digital India, having held Digital India accountable to protect public and national interest. The UIDAI also fails to show any evidence of protecting public interest as there is evidence of widespread exclusions, creation of unequal categories and efforts to  eliminate choice, and there is also no effort to protect people from injustice. The UIDAI also fails to show any evidence of protecting national interests as evidenced in the destruction of voter lists by including non-citizens, managing of voter preferences by exclusions, the construction of national population registers including non-citizens, the creation of bank accounts without certifying the identity of persons and transferring subsidies to such unverified bank accounts.

The Parliamentary Standing Committee on Information Technology does not have any report indicating whether it has assessed the initiatives of Digital India and held them accountable to serving public interest or national interest. The Parliament has no procedure or criteria to test legislation or demands for grants for their ability to protect public interest or national interest.

The fourth pillar of democracy too has fallen short of giving voice to discussion and debate on the all important idea of democratic accountability or the ideas of public and national interest as a means to hold the government and its actions accountable.

In a democracy, accountability cannot be to institutions but to the protection of public interest and national interests promised by the Preamble to the Constitution. This responsibility has fallen on the shoulders of Civil Society as the four pillars of democracy have fallen short of their responsibility.

Conclusion

In this paper, we sought to device tests for democratic accountability. We have proposed subjecting digital and non-digital initiatives to the tests of whether they further public interest and national interest, in order to evaluate their democratic accountability. Using the Preamble to the Constitution of India we have argued that public interest is served when justice, liberty, equality and dignity of the people is protected and enhanced. We have also argued and illustrated how the national interest is served when sovereign, socialist, secular, democratic and republic nature of the nation is protected and furthered. Using examples from the current Digital India initiatives we pointed out that they erode both public interest and national interest. Applying these tests of public interest and national interest, we conclude that the current digital India initiatives do not, therefore, create democratic accountability. Public discourse will need to continuously reiterate the ideas of public and national interest in order to ensure that the institutions that constitute the pillars of our democracy apply the tests of democratic accountability in an increasingly digital world.

(Both Anupam Saraph and Lalit Kathpalia are with the Symbiosis Institute of Computer Studies and Research, the latter being the Director)

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