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Democratic Accountability in Digital India

Anupam Saraph (anupam.saraph@sicsr.ac.in) is with the Symbiosis Institute of Computer Studies and Research and former advisor to Government of Goa. Lalit Kathpalia (director@sicsr.ac.in) is director, Symbiosis Institute of Computer Studies and Research.

As the government increasingly seeks to replace manual systems with digital, there are increasing concerns about accountability. The democratic content of the various digital initiatives is examined by subjecting these to the tests of public interest and popular sovereignty.

The government has taken upon itself to turn India into a digital republic. Without a digital ID, the Unique Identity (UID) issued by the Unique Identification Authority of India (UIDAI), one’s ability to access government and private services, one’s entitlements like pensions, and one’s rights like education, travel and living in one’s own home are being increasingly denied. Even with the UID, our access to these and more is subject to digital apps that need to authenticate our biometrics or our access to a mobile that was linked to the UID at the time of enrolment. If apps fail because there is no access to internet, power, or because one’s biometrics have changed, as all biometrics do, we are now denied every service, entitlement or right till we get ourselves a fresh UID. Until the Supreme Court read down the Aadhaar Act on 26 September 2018, if one’s UID was stolen and used by someone in possession of one’s biometrics or mobile phone to take over one’s services, entitlements and rights, we would have no recourse as Section 47 of the Aadhaar Act prohibits the courts from taking cognisance unless the UIDAI files a complaint. In any case, the UIDAI does not run the delivery of the service, entitlements, rights, apps, the authentication, or even a redressal mechanism itself, but simply licenses it out these functions to private parties.

Digital payments is the next frontier. Not convinced that the Reserve Bank of India (RBI) 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 private company, the National Payments Corporation of India (NPCI). These apps, based on the “open” programming interface (API) called India Stack and developed by “volunteers,” from former UIDAI employees who designed the UID, and financial technology 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 untraceable payments.

Not convinced that merely accessing the government’s records to query for information about documents like birth certificates, driver’s licences, election cards, etc, issued by the government itself, the citizen is asked to upload their copies of these documents to a digilocker and provide access to organisations asking for them. This incessant obsession for digitisation has become pervasive in the 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.

Public Interests and Accountability

Alan Turing stated that the idea behind digital computers is that these machines are intended to carry out any operations that could be done by a human computer (Turing 1950). According to Turing, the human computer is supposed to be following fixed rules, supplied in a book that is altered for each new job, without authority to deviate from them. He believed, therefore, that the digital computers can be taught to think. Turing created a “test” to decide if computers can think. In his test, Turing required an interrogator in one room to distinguish and identify a machine from a human, communicating with him while each sat in a separate room. His test replaced the original question of whether computers could think and asked if an interrogator would be able to distinguish between responses of a machine and a human. Searle (1980) challenged Turing’s notion of thinking as the ability to respond by imitation. He argued that because the rules do not embed purpose, they are quite meaningless. Without meaning, he argued, there is no thought. This means that imitating instructions is not a sufficient condition to conclude machines can think. Searle’s thought experiment, the Chinese room argument, replaced the computer in Turing’s test with a human who was given a large batch of Chinese writing, “a script,” together with another batch of Chinese writing, “a story,” and a set of rules in English to correlate the first two, “the programme.” The human is then challenged with Chinese script, “questions” and responds back with “answers to questions.” Searle notes that the human in the room still has no understanding of the questions or answers or of the Chinese language. When using digital computers in a democracy, it is not the computer’s ability to think that is useful. We can, therefore, conclude that Turing’s test would not be useful to conclude that the digital initiative makes democracy accountable. Searle’s insistence on meaning leads us to ask what gives democracy a meaning.

Indian democracy gets meaning from its Preamble to the Constitution. The Preamble promises justice, liberty, equality and dignity for the people of India. The erosion of any of these can only be to the benefit of private interests and not to the benefit of any 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. Hence, any protection of these would be in national interest. We can, thus, conclude that Indian democracy can be meaningful only when public interest and national interest are protected and furthered. We, therefore, propose a public interest and national interest argument in the spirit of Searle’s quest for meaning from digital computers. The public interest and national interest argument is our hope to hold democracy accountable in a digital age.

The government is not about service delivery, efficiency, becoming digital, or 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 government and its institutions are upheld. Democratic accountability requires that these principles of public interest are not violated.

Justice is destroyed when the misuse of the UID is not distinguishable from its use. The mere use of a number, or the 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. 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 themselves, if not worse. Furthermore the Aadhaar Act also prohibits access to justice by way of preventing courts from taking cognisance of injustice except when asked by the UIDAI. When digital initiatives destroy justice, they usually also destroy access to justice. Those wronged in these instances cannot approach the courts in order to seek redressal under both the Aadhaar Act and the Representation of the People Act.

When a digital programme like the UID eliminates the choice of alternate identification documents that have worked to access rations, LPG cylinders, licences to drive vehicles, obtain passports, obtain subsidies, benefits, pensions, salaries and jobs, it fails to uphold the promise of liberty.

When a government creates classes or castes, treated differently for having or not having a UID, it violates the promise of equality. As those with UIDs 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 the Bhopal gas tragedy, or even getting meals for mid-day meals, the government creates two unequal classes in society against the Preamble’s promise of equality to the people.

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

The argument for public interest would challenge the non-digital and digital systems 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 differentiate between those using and those rejecting the digital initiative. The digital initiative would need to demonstrate that it does not undermine the dignity of those who opt in or out of the digital initiative.

Popular Sovereignty

National interest is not about economic growth, foreign direct investments, trade, becoming a superpower, digitisation or even technological progress. It is about upholding the sovereign, socialist, secular, and democratic nature of the nation as was promised by the founding fathers of the government and its institutions. Democratic accountability requires that this promise of national interest is not violated. The idea of sovereignty entails absolute supremacy over internal affairs within the nation’s territory, absolute right to govern its people, and the freedom from external interference on these matters (Wang 2004). In a democratic sovereign nation, people must have authority over governance, not private parties. 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 into 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, those who are beneficiaries, as well as those on the rolls who may be authenticated during a transaction are decided by private organisations, and no longer by the people of India with authority over governance. As the use of the UID is coerced across services, private, outsourced interests determine the delivery of services, not the people of India. Even the move to become cashless has been promoting the use of delivery of banking transactions by non-governmental entities, like the NPCI and Paytm, through instruments that are neither regulated nor auditable by the people of India. The strange promotion of UPI and AePS over the NEFT run by the RBI not only violates the socialist, but also the sovereign nature of the banking system.

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 UIDAI has transferred the enrolment and authentication of those who will be granted rights, entitlements and benefits to private parties. The government has shifted the responsibility of the DBT and consolidated fund of India transfers to a private company, the NPCI. The new goods and services tax (GST) will be collected by a private company, the Goods and Services Tax Network (GSTN). All of these digital initiatives erode the republic of India. The digital initiatives will have to demonstrate how it strengthens sovereignty or if it does not worsen it in comparison to the non-digital system. It will also need to demonstrate that it does not undermine democracy or the citizens’ ability to make an impact. The digital initiative will also need to that the power of the people for self-rule remains undiminished.

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

The judgments considered “legitimate state interest” and “proportionality” as defined in the privacy judgment in the Puttaswamy case. Paragraph 71 of the judgment by Justice Kaul in the privacy case 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 article. Any action deemed necessary in 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 admit the possibility of abuse by interference, but at the same time fail to prevent it.

There is no evidence of the cabinet secretary coordinating the executive’s drive to use the UID and implement Digital India, of having held Digital India accountable to protect public and national interest. The UIDAI also fails to show any evidence of protecting public interest as demonstrated by widespread exclusions, creation of unequal categories, and efforts to eliminate choice. 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 it has assessed the initiatives of Digital India and held them accountable to serving public or national interest. Parliament has no procedure or criteria to test legislation or demands for grants for their ability to protect public interest or national interest.

Conclusions

We have proposed subjecting digital and non-digital initiatives with the public interest and national interest arguments to evaluate the accountability of democracy. Using the Preamble to the Constitution, we have argued that public interest is served when justice, liberty, equality, and dignity of the people are protected and enhanced. We have also argued and illustrated how the national interest is served when popular sovereignty is protected and furthered. Using examples from Digital India initiatives, we have pointed out that they erode both public and national interest. The current Digital India initiatives do not, therefore, create democratic accountability.

References

Searle, John (1980): “Minds, Brains and Programmes,” Behavioural and Brain Sciences, 3, pp 417–57, http://cogprints.org/7150/1/10.1.1.83.5248.pdf.

Turing, Alan (1950): “Computing Machinery and Intelligence,” Mind, 59, October, pp 433–60.

Wang, Guiguo (2004): “The Impact of Globalisation on State Sovereignty,” Chinese Journal of International Law, 3 (2), pp 473–84, DOI: https://doi.org/10.1093/oxfordjournals.cjilaw.a000530.

Updated On : 26th Nov, 2018

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