Essay #10 in the Data and Pandemic Politics series on data justice and COVID-19

Editors’ Note: Arindrajit Basu, Aman Nair and Pallavi Bedi explore the ways in which regulation facilitates the capture of public service provision by the private sector in India through what they term ‘transitional arrangements’, where commercial firms expand across sectors in ways that challenge regulators’ ability to scrutinise and check private power.

The editors would like to thank the Rule of Law Programme Asia, Konrad-Adenauer-Stiftung for their support in curating this essay.

Digital India

With the Indian government’s clarion call of ‘Digital India’ serving as the launchpad for governance strategy in India, a variety of private sector institutions have played a key role in the development and implementation of essentially public functions. Private sector actors provide technical know-how, digital implementation solutions and advise governments on keeping digital solutions at the front and centre of socio-economic or governance challenges. For example, in 2006, the Ministry of Electronics and Information Technology approved the National E-Governance Plan. Initially, the mission mode projects focussed on governance schemes such as banking, land records, issuance of pensions and passports. However, over time, the ambit of the digitisation process was expanded to include nearly all the interactions between the state and its citizens such as healthcare, education and transportation. Along with the increase in the digitisation of delivery services, came the adoption of the public-private partnership (PPP) model by the government. Departments/ministries have been advised to make use of e-Governance as well as automation techniques from the inception stage of the project itself. These partnerships have seen the government either completely delegate the building of public digital infrastructure to private entities, or have these private corporations train the government’s inherent digital capabilities.

This project defines a sector transition as one where firms establish themselves in one sector and use the infrastructure and insights gained in that sector to pivot to other spheres. This definition does not account for the variety of public-private partnerships that help galvanize digital public service delivery in India. So, for the purpose of this post, we use a slightly modified terminology and definition—that of ‘transitional digital public service delivery arrangements’ (transitional arrangements)—when private sector and non-governmental actors use general purpose technology to work across sectors through a variety of regulatory arrangements with the state.

Private actors in public service delivery

There are broadly four kinds of transitional digital public service delivery arrangements at play here. First, are recently minted start-ups that harness emerging technologies such as Artificial Intelligence (AI) to provide a variety of services across sectors to both governments and private actors. An example is Staqu that provides AI-driven Facial Recognition Technology services across sectors - ranging from policing to private security for real estate companies, and most recently a variety of COVID-19 specific solutions such as critical patient monitoring and bed occupancy detection. Second, are ‘big’ foreign tech multinationals, like Google and Microsoft, that have moved beyond their core sectors to provide public services such as flood prevention and use of analytics for agricultural support. The third model, used to develop India’s contact-tracing app Aarogya Setu, was the National Informatics Centre (government) working with a network of ‘volunteers’ from academia and industry. Finally, there are the large Indian Information Technology companies such as Infosys that have been involved with a variety of government projects, including the development of essential digital infrastructure. A case in point is Infosys’s involvement in revamping of the recent online portal for filing income tax returns.

Following the onset of the pandemic, several transitional arrangements have been greenlit, and encouraged, through government policies. In June 2021, soon after the rollout of the COVID-19 vaccination programme to all eligible beneficiaries above the age of 18, the Central Government authorised private sector companies such as Makemytrip (a travel booking platform), IndiGo (the largest airline in India) and Paytm (a digital payment application) to offer bookings/appointments for the vaccination. Earlier, in May 2021, the Government of India had issued guidelines to permit integration of third-party apps with CoWin (the website deployed by the Government for beneficiaries to book their vaccination appointment).

Shoring up accountability and regulatory scrutiny of private actors

The Indian Constitutional framework guarantees the protection of fundamental rights against a violation through a public function carried out by a state or non-state actor. As transitional arrangements proliferate, how can governments and civil society effectively ensure that private entities are held sufficiently accountable to the prime beneficiaries of these services?

Transitional arrangements do not start off as seeking to evade accountability or scrutiny. An initial red flag arises when public narrative and policy discourse on technology or data-driven solutions are monopolised by the very companies looking to provide the solutions. Techno-solutionism driven by the private sector is an unfortunate case of supply driving its own demand. Before engaging in any relationship with private actors, any state actor must ask whether the government has in-house capacity to produce the solution themselves, and whether a technological solution is the most appropriate one. This does not mean that the PPP model should be discouraged but approached with caution ensuring that policy solutions are driven by democratically accountable representatives, not solely by profit-oriented actors.

In cases where this litmus test is satisfied, stringent accountability mechanisms must be implemented. The recent imbroglio between the Finance Ministry and Infosys following the launch of the income tax portal on June 7th is an interesting example. The portal itself was plagued with a number of glitches. This prompted Union Finance Minister Nirmala Sitharaman to ask Infosys to solve the issue. It should be noted that this came as a response to the minister receiving a number of messages on Twitter about glitches. However, glitches have since persisted with the government now setting a new deadline of September 15th for problems to be fixed. Infosys have since addressed some of the concerns raised by citizens as per statements made by the Central Board of Direct Taxes.

Towards a cohesive and uniform framework

While the government has taken these ad hoc measures to appease aggrieved taxpayers, this points to a crying need for formal accountability or monitoring measures in cases of service delivery. This is even more critical when private actors are providing AI-driven services through proprietary source code. A cohesive and uniform framework for public-private engagement must be conceptualized including:

(a) Uniformity in the wording and content of contracts that the government signs. Niti Aayog and the Ministry of Electronics and Information Technology have developed model concession agreements for the government to enter into with the private sector. The model agreements do specify the obligations and the responsibilities of the private company; however, it is essential to ensure that such agreements are also in line with the Indian Constitution and public welfare; and

(b) Mechanisms for continuous monitoring and evaluation of private sector actors participating in government projects, along with penalties for non-compliance.

Citizen action and civil society also have a critical role to play. One of the most ill-fated digital sector transitions was Facebook’s ‘Free Basics’—an ambitious gambit to provide ‘free internet’ to the hitherto unconnected in India. The rub lay in this plan’s violation of net neutrality—a proposal that received fierce opposition from civil society in India, ultimately causing the Telecom Regulatory Authority of India to ban the service.

The private sector has much to offer in India’s burgeoning economy both within and across sectors. However, public welfare must be driven by the state and must always remain accountable and accessible to individuals and communities, their intended beneficiaries.

Arindrajit Basu is the Research Lead at the Centre for Internet & Society (CIS) in India, where he focuses on the geopolitics and constitutionality of emerging technologies.

Aman Nair is a policy officer at CIS, working on cyber security and data governance.

Pallavi Bedi is a Senior Policy Officer at CIS, where she works on privacy and data protection.


Suggested citation: Basu, A., Nair, A. and Bedi. P. (2021, November 19). Furthering Private Sector Accountability for Public Service Delivery in India. Data and Pandemic Politics, 10. https://doi.org/10.26116/datajustice-covid-19.010