Written by Prateek Waghre
A consultation for the ‘Digital India Bill’ was held in Bengaluru on March 9. This seems to be a positive step. Only with the benefit of hindsight will we be able to truly judge whether this marks the start of a genuine consultation exercise or is merely theatre. While the name, ‘Digital India Bill’ finds no mention in any official press releases or government communiques, it has been frequently referred to by officials from MeitY in their interactions with the press since at least April 2022. It is supposed to replace and supersede the Information Technology Act, 2000 — which is now over 20 years old.
The Bill seems ambitious and appears to be extremely wide in scope. Going by various attributed and unattributed statements given by officials at the Ministry of Information and Technology (MeitY) about the ‘Digital India Bill’, a non-exhaustive list of items/issues that it could cover include artificial intelligence, ‘Blockchain’, ‘deliberate misinformation’, doxxing, Metaverse, advanced quantum computing, AI-based platforms, e-commerce entities, fact-checking portals, social media companies and their algorithms, catfishing, cyberbullying, gaslighting, identity theft, non-personal data, and so on.
The complexity of the task at hand cannot be understated. The services we interact with on the internet simultaneously impact spheres such as competition, privacy, public discourse, mental health, and many more. The issues vary from market or governance failures, some of which can potentially be addressed through regulatory interventions, but also include deep-seated social problems coupled with the manifestation of psychosocial factors further amplified by our cognitive biases. Their effects seamlessly flow between physical and digital spaces and must be understood in greater detail before they can be wished away just by rewriting laws. The elementary public policy suggests that the legislation is attempting to do too much. In the book ‘Missing in Action’, Pranay Kotasthane and Raghu Sanjaylal Jaitly remark that trying to solve several problems with one policy in addition to the need to balance equity, efficiency and effectiveness is a trap we should avoid and one of eight beliefs about public policy that we must unlearn.
Despite hearing about this proposed legislation for nearly a year, we are yet to see a clear and detailed articulation of what MeitY considers are the key safety issues and harms we face on the internet, beyond rhetoric. Neither has any department within the executive detailed how they consider the current laws as being applicable to the internet, where they see gaps, and whether these gaps are a function of framing, enforcement, etc. Merely fixing accountability on intermediaries cannot be the aim without comprehensively outlining the existing problems and supporting them with evidence. And, since designing policies is effectively an exercise in confronting tradeoffs, there also needs to be due consideration and explanation about the benefits that internet services enable, accompanied by, an ideally quantifiable, assessment of how they might be impacted as well as the thought process behind the choices made. These are prerequisites for civil society, industry and even the government itself to even begin to estimate whether they are on the right track or just engaging in an exercise of placing the proverbial cart before the horse.
The Government of India should seek to encourage the development of institutional capability and independent research. This is imperative if India wants to position itself as a leader in all things digital in the long term. There are no shortcuts here, but in the near term, some of these gaps can be narrowed by conducting genuine public consultations in good faith. An open, trusted and accountable process where the executive is open to feedback and course correction needs to form the basis of such ambitious legislation.
MeitY’s track record suggests there is room for improvement, which is demonstrated by a few notable examples. Despite years of criticism of previous draft versions of proposed data legislation by civil society, especially on matters such as exemptions for the state, and the (lack of) independence of a data protection authority — the most recent draft has not only seemingly ignored this feedback but also made it worse in some circumstances. Nor has it provided specific reasoning as to why certain aspects of the draft Data Protection Bill, 2021 were retained while others were given a ‘thumbs down’.
Further, the Ministry has denied Right to Information requests for consultation responses to the draft Indian Telecommunications Bill, 2022. It went a step further with the draft Digital Personal Data Protection Bill, 2022 and subsequent consultations by stating upfront that consultation responses would not be made public. It has, thus, refused to provide information about consultation responses for amendments to the IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 in relation to online gaming. The lack of transparency on display citing procedural technicalities belies any proclamations of a genuinely transparent process.
To its credit, MeitY has conducted some open in-person consultation meetings since 2022. Unfortunately, past public consultation events that this author has attended have sent the message that contrary views are not welcome. In a true inversion of responsibility, civil society is browbeaten, ridiculed, and expected to be precise and narrow with their asks and concerns, while the Ministry gives itself tremendous leeway under the guise of experimentation. A process where citizens do not feel safe while expressing disagreement or conveying critical feedback about issues that affect their rights is sure to generate suboptimal outcomes.
Any legislation born out of consultation processes that are not genuinely open, transparent and conducted in good faith will likely end up being deficient in substance, adversely affecting the digital and physical safety of nagriks.
The writer is the Policy Director at The Internet Freedom Foundation
