The eagerly anticipated first draft of the Digital India Bill was to be released in early June. While there is no draft bill in sight, recent developments such as the CoWIN data breach, or allegations of undue pressure by the Indian government to block Twitter accounts have emphasized the need for better regulations.

The proposed Digital India Act (DIA) is part of a comprehensive legal reform package designed to drive India’s ‘techade’, a confluence of technological developments to usher India’s digital revolution. This package includes forthcoming data protection laws, national data governance framework policy, cyber-related amendments to criminal laws, and a new telecommunication law. The DIA stands out due to its wide-ranging scope, covering social media regulations, consumer protection, competition, and potential regulation of Artificial Intelligence (AI) to prevent harm.

During the second Digital India Dialogue held in Mumbai on May 23rd, Minister of State for Electronics and IT, Rajeev Chandrashekhar, provided the early June timeline for the bill and discussed the broad goals and themes. Like the first consultation held in Bangalore earlier this year he provided a high-level overview of the motivations behind the DIA, which aims to replace the outdated Information Technology Act, 2000. He raised controversial questions such as “Should there be a safe harbour at all for intermediaries?”.

Much has already been said in response to the initial consultations, particularly concerning the delicate balance of regulation. In this context and current climate of digital anxiety, it is crucial to address additional aspects related to accountability, and governance within India’s omnibus regulation.

Accountability can be achieved without excessive restrictions

Accountability is a key factor that has driven the demand for legal reform in the digital age. The Narendra Modi government is not alone in its reevaluation of the “safe harbour” principle, which grants immunity from third-party activity on the platforms of internet companies like Meta (formerly known as Facebook) or ShareChat. This principle has come under scrutiny due to perceived lack of accountability of these tech companies and platforms called as intermediaries. While the hyperbole about eliminating safe harbour completely is a rarely accepted, there is widespread support for recalibrating the responsibility of intermediaries given their significant role in the evolution of the internet. Changes in intermediary liability regulations indicate a shift toward more stringent accountability standards and greater scrutiny of user activity. It is also worth noting that the safe harbour principle has not only protected intermediaries from litigation or business disruption but also enabled free speech and the exercise of other human rights.

Granting intermediaries excessive power for control of content on their platforms, or making the state an arbiter of truth, are both poor solutions that can negatively impact the growth and freedom from internet proliferation. This is exemplified by recent events such as the allegations made by Twitter co-founder and former CEO about undue pressure from the Indian government to block specific accounts during the 2021 farmers’ protest. Similarly, the role of civil society actors and the responsibilities of individual users in creating and maintaining a safe, inclusive, and trusted digital ecosystem cannot be ignored.

To improve accountability but not restrict rights, a graded and nuanced approach is necessary but incomplete. It should be accompanied by clear and predictable processes to hold both government and industry accountable. In an internet ecosystem with multiple actors exercising varying degrees of influence, roles and responsibilities must be clearly defined. Clear, transparent processes and accountable institutions will help address the deep distrust and foster mutual accountability mechanisms among stakeholder groups.

Digital Government must include Digital Public Infrastructure

While safe harbour received considerable attention, digital government is a crucial yet less-discussed aspect of the bill. Though the DIA tentatively includes a chapter on “Digital Government,” its scope remains unclear. Digital government extends beyond the electronic delivery of public services; it encompasses enhancing transparency, accountability, and efficiency in public institutions, building trust, and leveraging Information and Communication Technologies (ICTs) to make institutions accessible. In India’s context, this should include Digital Public Infrastructure (DPI).

Although the government has consistently promoted DPIs as India’s technological contribution to the world, and a critical element in India’s digital growth strategy, it remains a term that means different things to different people. The lack of clear and agreed definitions for such a critical element of India’s digital economy strategy may explain its strange absence from the DIA discourse so far.

Including DPIs under the ambit of the new law would bring the much-needed clarity to the concept and provide legitimacy as well as enable better accountability measures. This is also essential if India wants to continue to use DPIs for its strategic and developmental goals. Furthermore, a foundation of accountable DPI institutions is essential to facilitate consumer protection and competition within the developing ecosystems. The increasing reliance on DPIs in India also brings risks to personal data, as evident from the alleged CoWIN data breach. This emphasizes not only an urgent need for India to enact a comprehensive data protection law but also to implement better data governance practices and accountability measures through the DIA and allied regulations.

It is essential to recognize that statutory changes alone cannot achieve the digital transformation of government. Behavioural changes in both individuals and public institutions are necessary. Additionally, transformation into digital government will require reimagining its scope and ideals while tackling the coordination challenge with various related regulations and schemes, ranging from data governance to bridging the digital divide.

Whether the draft Digital India Bill includes these, and many other important issues remains to be seen. Regardless, it is critical to maintain and improve the consultative approach. Ensuring better structure and clarity throughout a more predictable process will help address the myriad issues and challenges that emerge.

Authors: Gangesh Varma, Yaqoob Alam

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