Away from the media limelight, the central government is conducting consultations on a proposed Digital India Act, an expansive law that will regulate almost all aspects of an Indian’s digital life. With an average Indian consuming nearly 20 GB of data every month and spending nearly five hours on their smartphones every day, this law will shape our lives for decades to come. The internet today is not only a forum to trade goods and services but also one where we exercise our most sacrosanct right – our freedom of speech.
These consultations, however, come at a time when there has been a worrying trend of the government arrogating to itself functions that require judicial consideration. For example, a 2021 amendment to the Information Technology Act created a self-regulatory mechanism to evaluate whether content posted on social media should be removed. But sitting on top of this self-regulatory apparatus is an Inter-Departmental Committee comprising representatives of ministries ranging from women and child development to defence. Conspicuous by their absence are members with training in law, who are necessary to decide whether – and how much – the right to free speech should be restricted to meet other societal priorities.
Similarly, the Digital Personal Data Protection Bill 2022 envisages a Data Protection Board of India whose members will be appointed and removed based on rules created unilaterally by the Centre. The proposed board will conduct inquiries related to the violation of data privacy and exercise the powers of a civil court without being obligated to have a judicial member. Even if it had such members, the ease with which the government could remove them would erode their independence and make them less effective.
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Why judicial scrutiny is necessary
This phenomenon of government officials making decisions related to constitutionally-given rights without judicial oversight comes with several risks. It violates the principle of separation of powers, wherein an independent judiciary is meant to be a check on governments’ excesses. For example, the government is among the biggest collectors of our data. Would a Data Protection Board appointed unilaterally by it be able to hold it accountable for lapses?
More importantly, balancing our fundamental rights with other societal priorities requires deep thought. Judges undergo years of training and have decades of experience in law, which equips them to find this right balance. Moreover, the judiciary is a deliberative forum where both sides of an argument can present their cases, cross-question each other and collectively arrive at the right decision. Much of this deliberative apparatus goes missing when decisions are made by bureaucrats. Their training does not include an exploration of law as rigorous as that of lawyers. They are also not adequately trained in the mundane procedures of natural justice. They act on the will of their political bosses, who in turn get elected by cobbling electoral majorities and may not have as much of an appreciation for minority rights as a trained judge.
The procedural absence of the judiciary from digital India goes back many decades. At times, the Supreme Court itself seems to have either aided or overlooked this phenomenon. For instance, in a 1997 judgment, the court turned down a plea that sought to make judicial sanction mandatory before any phone tap was implemented. Instead, it authorised bureaucrats – Central and state Home Secretaries, that is – to make nuanced decisions between citizens’ privacy rights and governments’ investigative needs. The court created a review committee to which such orders were to be sent, but it consisted of another set of bureaucrats.
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Balance is key
The ineffectiveness of these procedural safeguards is another reminder why the act of balancing fundamental rights and societal needs should occur in the judiciary rather than the bureaucracy. At the onset, asking bureaucrats to review surveillance decisions approved by their peers is rife with conflicts of interest. More importantly, our overstretched bureaucracy is not designed for such deliberations. For example, even in 2013, the central government alone issued about 300 surveillance orders daily. The committee reportedly meets only once in two months. If true, this means each order is being reviewed for not more than a few seconds. Our rights, even when rightfully infringed upon, need greater care.
As it races toward publishing a first draft of the Digital India Bill by the end of July, the government would do well to give the judiciary its rightful place in the regulation of our digital rights. Not only will that bring the most relevant expertise to these complex questions, but it will also free up the government’s bandwidth to do what it is best equipped to – set the policy vision for the country and execute it effectively. Even as we grapple with the ambiguities of an uncertain future, we would do well to keep in mind the timeless principles of good governance –separation of powers and independent oversight.
Subhashish Bhadra is author of ‘Caged Tiger: How Too Much Government is Holding Indians Back’. He tweets @Subhashish30. Views are personal.
(Edited by Zoya Bhatti)