Aasim Khan explores how India’s experiments with liberal constitutionalism have informed its approach to internet governance.
The 20th century witnessed several ‘revolutions of sovereignty’, and India’s independence was amongst the more startling ones. It began with the decline of an imperial regime and ended with a liberal constitutional settlement that has endured longer than most critics thought it would. India’s constitution regime, unique in the post-colonial world, also undergirds a secular democratic state in a region teeming with authoritarianism. Today, as the debate over the global governance of the internet intensifies it is worth considering how the rise of a sustainable constitutional order in India could provide a framework for reforms.
When seen in light of the uncertainties confronting political leaders, campaigners and users of the internet, the similarities with India’s own tryst with destiny become very evident. Since its inception, internet governance has been in the hands of an efficient but insular technocracy based in the United States. Now as the network expands globally, the legitimacy of its governing institutions, particularly in terms of defining and safeguarding user rights, is under intense pressure. As calls for Internet Freedom get louder, the challenge for reformers, as it was for the ‘freedom fighters’ in India, is to strike a balance between change and continuity in the governance institutions and to ensure greater trust and engagement of the Netizens.
One of the key features in India’s constitutional regime is precisely this mix of the old and the new. Just as internet campaigners face the challenge of deciding the quantum of reforms, makers of India’s constitutional regime had to calibrate the pace and nature of institutional change in the system left behind by the colonial rulers. When the debates finally drew to a close the Indian leadership retained as much as it discarded. In fact India’s constitution retained several features of the British era legislations, particularly from the Government of India Act that had developed over several decades before India’s independence.
At the same time the constitutional debates also led to major reforms. Inspired by the American system they included the idea of a separation of powers but deliberately left the arrangement fluid enough for future interpretations. So while the legislature and the executive in India have the law-making powers, these were not above judicial review by the ‘supreme’ courts of law. Over the years this has led to the strengthening of a ‘basic structure doctrine’ that ensures that the institutional balance can never be altered no matter how strong a majority any political party or leader might garner in an election.
In the context of internet governance the evolution of this consensus in India offers lessons for building stronger safeguards against the excesses of states and powerful corporations. Until now internet governance norms evolved according to the needs and priorities of the major powers that had the technical know-how and an advantage in terms of early adoption by their users. But as the network becomes globally ubiquitous, and alternate visions for technical standardisation emerge, the challenge is about promoting governance innovations that ensure greater user engagement.
In India the fluidity of its constitutional regime has ensured just such a virtuous cycle of innovations leading to diversity in citizen activism. For instance, as the quality of debate in the parliament began to plummet (not uncommon in democracies) the courts in India began to seek ‘public interest litigations’ directly from the citizens. On several occasions this mechanism opened a space for debating civil and human rights issues when the parliament tried to push them to the periphery. While such innovations in governance are rarely foreseeable, the delicate balancing of the executive by the judiciary can inspire campaigners for ‘digital human rights’ to think about autonomous institutions that are able to engage common users rather than reflect the demands of special interest groups.
Similarly in the context of defining ‘user rights,’ again the example of India’s constitutional history offers a useful framework. Recognising its cultural pluralism, the framers of the constitution made specific provisions for ‘group rights’ for the marginalised communities in India but once again left ample scope for future interpretations. This has ensured that the efficacy and desirability of continuing with affirmative action policies (quotas for certain ‘backward classes’) is frequently debated in India. Similarly in the context of internet governance instead of defining the precise contours of new institutions (such as member country representation in the evolving multi-stakeholder fora) reforms must focus on ensuring that there is scope for periodically revisiting all provisions in the future.
Eventually by leaving the scope for multiple interpretations open the founders of Indian constitution enabled a complex pattern of democracy and the proof of their success is evident in the surge in the vibrancy of its contemporary ‘public sphere’. In the context of the internet’s technical management, the knowledge embedded within ICANN and other engineering bodies is perhaps irreplaceable. But if these institutions have to become more responsive, and eventually more participatory, then governments and campaigners must realise that their efforts (or dissent) should be focussed on creating diverse set of institutions that offer multiple avenues for users to engage with the system.
Creating new veto points might seem frustrating in the short term, but a separation of powers and certain fluidity in the institutional balance would be crucial factors in locking-in various actors. Since it gained independence in 1947, India’s experiments with liberal constitutionalism has been a journey full of governance innovations and it could serve as a handy guide for those anxious about the impact of the reforms on the future of the internet. The fact that the country also accounts for hundreds of millions of internet users only makes it ever more relevant.
Aasim Khan is a Ph.D. candidate at the India Institute, King’s College London. He is a Global Governance Futures 2025 fellow in the Internet Governance working group. Aasim is interested in the ideational and social basis of institutional reforms and is currently researching the case of internet governance in India.