8 April 2015

Digital India abroad: India’s foreign policy and digital rights

A report by

Abstract

THIS ARTICLE HAS BEEN CO-AUTHORED BY ANJA KOVACS AND SAIKAT DATTA.

If India has supported economic, social and cultural rights far more vocally at global fora than civil and political rights, this is a result of both domestic security compulsions and historical foreign policy positions. Internet rights advocates’ strategies will need to take into account India’s preoccupation with sovereignty and an improved international stature to gain the country’s full support. This article was co-authored by Anja Kovacs and Saikat Datta, and first published in Lettinga, Doutje and Lars van Troost (eds.) (2015), Shifting Power and Human Rights Diplomacy: India. Amsterdam: Amnesty International Netherlands.

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Introduction

Since the late 2000s, the subject of human rights in the context of the Internet has gained increasing prominence on the international agenda1. First introduced in the UN Human Rights Council in 2008, consideration within the UN system began in earnest with the Internet-focused 2011 report of the then UN Special Rapporteur on Freedom of Opinion and Expression, Mr. Frank La Rue. This opened the way for a number of resolutions related to the Internet and human rights in the UN Human Rights Council. In more recent years, and especially since the Edward Snowden revelations on illegal espionage activities by US intelligence agency NSA, the UN General Assembly, too, has acknowledged the importance of human rights online and has touched on or addressed challenges in this regard in a growing number of resolutions. With the highest body of the UN system paying close attention as well, human rights on the Internet have formally become a part of the UN agenda (see Brown 2013 and 2014).

As the largest democracy and one of the largest Internet user bases in the world – facts that India takes, justifiable, pride in – it would be easy to expect India to play an active and even defining role in these debates. But has it indeed fulfilled this expectation? And what can be done to make India a stronger ally in the global debate on the Internet and human rights?

In this short paper, we will first outline India’s contributions to the global Internet rights debate. We will then examine the drivers of its foreign policy on these matters. Finally, we will assess what strategies can be helpful for Internet rights advocates if they want to have India as a stronger ally on their side.

India and the Internet rights debate at the global level

As a scan of the various Internet rights-related resolutions that have been passed at the UN Human Rights Council (HRC) and the UN General Assembly (GA) in the past few years makes clear, India’s voice in the debate on human rights and the Internet has been somewhat muted.

Importantly, India was one of the co-sponsors of the groundbreaking UN HRC Resolution 20/8, on the ‘Promotion, Protection and Enjoyment of Human Rights on the Internet’, in 2012 – the first ever resolution in the UN system to be specifically devoted to the subject of human rights and the Internet. But it did not join the more than seventy co-sponsors to support the amended version of the resolution, Resolution 26/13, two years later. In fact, when China, supported by others, sought to bring in an amendment to the resolution that would weaken it by leaving a loophole for online censorship counter to both the intent of the resolution and international standards, India didn’t vote against it but merely abstained (Article 19 2014).

Moreover, despite disclosures based on top secret documentation revealing that India was the fifth-most targeted country for the NSA in addition to being used as a Special Collection Site to target other entities (Greenwald and Saxena 2013), India did not co-sponsor recent UN resolutions relating to privacy and surveillance in the digital age, be it at the Human Rights Council or at the General Assembly2. Nor did India co-sponsor various resolutions at the Human Rights Council and the General Assembly that touched on the rights to freedom of peaceful assembly and association online3 or on the Internet-related human rights of specific groups, such as journalists4, women 5, human rights defenders 6 or civil society7.

This is not, however, to say that India hasn’t been involved in important resolutions that touch on Internet-related human rights at all. Apart from Resolution 20/8, India also co-sponsored UN General Assembly (GA) Resolution 68/243, which for the first time noted the importance of respect for human rights when using ICTs in the context of international security. India has also been known to take an active role in the negotiations around the resolution for information and communication technologies for development, which is generally sponsored by the Group of 77 and China8.The latter resolution deals with a wide range of Internet rights-related issues, many touching on digital inclusion and social, cultural and economic technology-related rights.

Outside of the multilateral processes of the UN, India’s record of support has been similarly uneven. For example, India reportedly declined to become a member of the Freedom Online Coalition, a partnership of 24 governments from the developing and developed world working to advance Internet freedom, despite having been invited explicitly by its initiators.

At the same time, however, India has acknowledged the importance of respecting human rights on the Internet in several multistakeholder Internet governance fora. For example, India mentioned freedom of expression and privacy and consumer rights as crucial Internet issues that need addressing today in its October 2013 submission to the UN CSTD Working Group on Enhanced Cooperation. This Working Group was tasked with bridging the gap between those who believe that multistakeholder approaches as they exist today serve Internet governance well, and those who seek greater government involvement. In that same submission, India also drew attention to the importance of multilingualization, and the affordability, reliability and quality of service, especially in developing countries9.

Similarly, in its submission to NETmundial, a global multistakeholder meeting to discuss the future of Internet governance, India stated that the ‘same rights that people have offline must also be protected online’, in addition to asking all stakeholders to commit to multilingualization and the ‘development of locally relevant information, applications and services that will benefit developing countries and countries with economies in transition’10. The language on online and offline human rights in India’s submission to the NETmundial was taken verbatim from UN HRC Resolution 20/8.

What a close examination, thus, reveals is a pattern in which India does voice support for the promotion and protection of human rights on the Internet, but generally shies away from expanding on the importance of civil and political rights, such as freedom of expression and privacy. Instead, where it goes in detail, its focus seems to be resolutely on economic, social and cultural rights. Why this divide?

Historical drivers of India’s foreign policy

It would be easy to surmise that it is India’s domestic agenda that drives its reluctance to speak out on issues such as privacy and freedom of expression on the Internet. Research has shown that India’s cybersecurity concerns have indeed emerged as a crucial factor in determining its global policy on Internet governance (Kovacs 2014). But as others have also pointed out, India’s ‘attempts to deal with some of the concerns relating to material of [the] Internet which it considers problematic and potentially a threat to security has been frequently criticised’ from within the country11. It is by now fairly well-known that India is already experimenting and building its internal surveillance systems without putting the appropriate strong safeguards in place, such as strong horizontal privacy protections in law, and parliamentary and/or judicial oversight and audit mechanisms12. In fact, as the Hindustan Times reported, intelligence agencies have been insisting that any future Privacy Bill in India should not cover their activities (Sharma and Tikku 2013). Similarly, various provisions of India’s Information Technology Act (Amended), 2008, have come under attack for their chilling effect on freedom of expression. India’s Supreme Court is currently hearing arguments on the constitutionality of Section 66A and Section 79 of the IT Act in particular13. Section 66A criminalises a broad range of free speech online while Section 79 concerns Internet intermediaries’ liability for speech acts of their users.

The rights and security-related challenges that India, like many other countries, is grappling with at home in the new context dictated by the Internet, thus might well affect its foreign policy. But an analysis of India’s stances at international fora in general indicates that there is a rationale endemic to its foreign policy at play as well. Two linked aspects that have marked India’s foreign policy for more than two decades now are of particular importance. The first is India’s aspiration for greater global stature and recognition, exemplified by its pursuit of a permanent seat in the UN Security Council. The second is the pre-eminence in its foreign policy of not human rights or democracy - although India values both greatly – but of the principle of sovereignty.

The latter has not always been the case. When India gained independence, it soon became clear that the state would put its might behind a hope to create a new language of human rights that was international and not bound by considerations of sovereignty. Thus, for example, in 1952, India helped steer an agenda at the United Nations that protested the introduction of apartheid in South Africa and the violation of basic human rights and fundamental freedoms that this entailed14. India’s first Prime Minister, Jawaharlal Nehru was looking, it has been argued, for a pathway to create a new ‘One World’ that would adequately establish and reflect global human rights norms through the fledgling United Nations. Thus, Nehru has been said not to have been in favour of sovereignty that could block a global defence of human rights. Instead, he was described as a ‘universalist’ for whom ‘national self-interest was not a narrow self-centred concept, but one in which there was no incompatibility with the interests of other nations’ (Rao 2009).

While the position taken by Nehru continued to dominate India’s foreign policy for several decades, a change began to emerge, however, in the early 1990s. Scholars like Dr. C. Raja Mohan, the head of Strategic Studies at the New Delhi-based Observer Research Foundation (ORF) (and co-contributor to this volume) have mapped this significant change in India’s foreign policy. C. Raja Mohan said: “In 1948, when the United Nations declaration for human rights was being drafted, Nehru was clearly for a greater internationalism. That changed post 1991 as India began to grapple with charges of human rights abuse while tackling the rising insurgency in Jammu & Kashmir. In many ways this single event has continued to leave a deep impact on India’s foreign policy ever since15.” The change, as Dr. C. Raja Mohan points out, has ensured a decisive shift away from the ‘internationalism’ and global standard for human rights to a new language of sovereignty. India’s interventions are based on the principle that ‘a call for human rights must not lead to interference in internal affairs’.

The pre-eminence of the principle of sovereignty in India’s foreign policy received a further fill-up as its aspirations to be recognized as a global leader also became increasingly pronounced during the same period. If India was not to alienate, in this quest, any of its potential allies among the G77 countries, an emphasis on sovereignty, rather than human rights, made further strategic sense. India’s strategic relationships with China, Russia, arguably Iran and also its neighbours in South Asia can be considered of particular importance in this respect. As the authors of an influential report on India’s foreign policy have noted: “Our approaches to international law, international norms are overly inhibited by anxieties about the potential implications that our commitment to certain global norms may have for our options in the neighbourhood” (Khilnani 2012).

Impact on India’s foreign policy as related to digital rights

Where India’s stances on matters related to the Internet are concerned, these two, linked tendencies of its foreign policy have had important consequences in two different ways.

First, they explain the contrast between India’s relatively muted voice in many of the Internet rights related discussions that address civil and political rights on the one hand, and its much more active promotion of economic, cultural and social rights on the other. Advocacy with regards to the former in particular is often seen as a Western agenda; where digital rights are concerned, the announcement with much fanfare by then US Foreign Secretary Hillary Clinton, in January 2010, that a fairly narrowly conceived ‘Internet freedom’ was to be an explicit objective of the US foreign policy agenda did little to disavow such perceptions. Now that India seeks to expand its influence in the international community, as before, its preoccupation with the principle of sovereignty precludes it from taking any position that could make it appear a handmaiden to an interventionist Western agenda16. In contrast, the promotion and protection of economic, social and cultural rights has been high on the agenda of developing countries in particular for long, not in the least because they see these as tied so closely with the right to development. For many of India’s strategically important partners, the promotion of development is more palatable than that of democracy, as it again avoids the need to comment on the political structure of other states, thus promoting the principles of non-interference and sovereignty17.

There is, however, a second, equally important though perhaps somewhat more circuitous way in which the driving forces of India’s foreign policy affect the field of Internet rights – and this time one that is more specific to this area. They have also led India’s foreign policy establishment to reject the multistakeholder approach to Internet governance, which it believes currently largely serves the interests of the US and its allies. Instead, India’s diplomatic corps has been pushing proactively for a multilateral approach to Internet governance, with governments being the primary, and perhaps sole, arbiter of ‘national interest’. The best-known illustration of this is India’s proposal, introduced in the UN General Assembly in 2011, to constitute a UN Committee for Internet-Related Policies (CIRP)18. The proposal wanted to set up a ‘UN-like body’ to govern the Internet, a multilateral body that will consist of ‘50 member states of the United Nations, chosen/elected on the basis of equitable geographical representation’. It was meant to provide ‘equitable representation of all UN Member states, in accordance with the established UN principles and practices’. Clearly, the emphasis was on giving a seat to governments at the high table, while other stakeholders were to be reduced to mere ‘advisory roles’.

While this particular proposal failed to get much traction and thus seems to be off the table for now, the push for greater government control over Internet issues within the framework of the sovereign state continues to guide most of India’s foreign policy on this matter. Thus, for example, in the first half of 2014, India negotiated UN GA Resolution A/RES/68/302 on the ‘Modalities for the overall review by the General Assembly of the implementation of the outcomes of the World Summit on the Information Society’ to its conclusion on behalf of the G77 and China19. Considered by many in civil society as a step backwards vis-à-vis the World Summit on the Information Society (WSIS) processes themselves, the resolution firmly enshrines the overall review as an ‘intergovernmental negotiation process’, which promises to take inputs from all other stakeholders but does not define, or even so much as outline, the process for doing so.

As the goal of greater control over Internet governance processes – inspired by the larger goals of asserting sovereignty and achieving greater recognition of India’s status and leadership – has become such an important objective of India’s foreign policy, it is now becoming increasingly clear that any support for human rights will, at least for now, have to be subservient to it.

This makes more intelligible, then, India’s active involvement in resolutions such as resolution A/RES/69/204, discussed earlier, related to information and communications technology for development. Importantly, this resolution does not only highlight, in its operative part, a whole range of issues that are crucial for development in the era of ICTs, it also contains, in its introductory paragraphs, numerous references that support India’s agenda regarding the global Internet governance architecture. In fact, when India made a statement in the UN GA Second Committee, where the resolution was under discussion, it explicitly highlighted the value it attached to both the development and Internet governance aspects of the resolution, stressing again, even in this context, its belief in multilateralism as the way forward for Internet governance as well as re-emphasizing the satisfaction it felt at the outcome of the negotiations for the modalities of the WSIS20. It also explains, for example, why India could not agree to the NETmundial outcome document, which, while paying considerable attention to human rights, also firmly embraced multistakeholder Internet governance but remained mute about multilateral options and involvement. In fact, officials from the Ministry of External Affairs who have attended the conference are believed to have questioned whether it is useful for India to attend such conferences at all. In India’s foreign policy agenda, the promotion and protection of human rights for now remains subordinate to broader strategic goals.

Implications for advocacy regarding the Internet and human rights

What are the implications of all this for human rights advocacy in the digital context?

Though India is likely to continue to be receptive to initiatives addressing economic, social and cultural rights in a wide range of fora, getting the country on board to actively support a broader rights agenda that also addresses issues such as privacy and freedom of expression online will need careful consideration and will likely not be effective unless India’s strategic concerns are taken into account in any strategy (see also contributions by Sachdeva and by Pai & Singh in this volume).

For one thing, such a strategy might prefer to start by focusing more on regional (e.g. the South Asian Association for Regional Cooperation, SAARC) and cross-regional (e.g. BRICS – Brazil, Russia, India, China and South Africa) fora, where the risk of a rights agenda being seen as a Western one is smaller, rather than on the traditional UN processes. If we see a multiplication of policy institutions in the world today, it is precisely because rising powers like India are not convinced that the existing ones serve their strategic interests best. More than the UN, it is arguable institutions such as the Shanghai Cooperation Organisation where much of the initial alignment of the countries involved on issues such as cybersecurity happens. Rights advocacy will need to recognize this reality.

Perhaps as importantly, however, is that any strategy will have to take into account India’s positions on the debate on the architecture of Internet governance – not by discarding multistakeholderism, which improves the chances that the voices of human rights defenders are heard, but by actively promoting a reform of the system so that it becomes genuinely reflective of the concerns of stakeholders around the world.

At the global level, a variety of measures to improve the inclusiveness, transparency and accountability of the multistakeholder system are required. Proposals could include the carving out of specific spaces and moments for multilateral decision making on specific issues (for example to find greater resolution to jurisdictional issues), embedded within a multistakeholder landscape. They could also involve greater involvement of organizations such as the International Telecommunication Union (ITU) in particular aspects of Internet governance (for example through collaborations with organisations such as the Internet Corporation for Assigned Names and Numbers, ICANN) with decision making requiring a rough consensus among all those involved. While such proposals today are easily dismissed, Internet rights advocates who are concerned with improving human rights records worldwide might have a stake in considering them more carefully. If India’s concerns are not being taken more seriously soon, it is likely that India will look to bilateral fora to address its main Internet-related concerns, many of which, as mentioned, focus around cybersecurity. In bilateral fora, the possibilities for human rights advocates to influence outcomes generally are even smaller than they are in intergovernmental processes at the UN.

As importantly, however, Internet rights advocates will also need to pay attention to the national level. It is by developing stronger mechanisms within India for multistakeholder participation in policy making around the Internet, that domestic voices that promote and protect human rights have the greatest chance of being heard and of impacting related policies in the shorter term. While foreign policy is often remarkably disconnected from what happens within a country, a strong multistakeholder model within India could re-establish that connection. At the same time, as a consensus among Indian stakeholders on particular issues is being built, the Indian government will also have a far larger circle of ambassadors for its ideas than just its bureaucrats, as stakeholders from India participate in a considerably wider range of fora on a consistent basis than the government is able to do. A strong multistakeholder system within India thus also strengthens India’s position in multistakeholder models of Internet governance as they currently exist at the global level.

The promotion and protection of human rights in the context of the Internet, the strengthening of multistakeholderism at the national level, and its reform at the global level are intimately intertwined.

List of references

Article 19 (2014). ‘UNHRC rejects attempts to dilute Internet freedoms’. Article 19, Statement, 26 June. Available at: https://www.article19.org/resources.php/resource/37602/en/unhrc-rejects-attempts-to-dilute-Internet-freedoms.

Brown, D. (2013). ‘UN Human Rights Council discusses surveillance and other Internet issues at 24th Session’. Access, 16 September. Available at: https://www.accessnow.org/blog/2013/09/16/un-human-rights-council-discusses-surveillance-and-other-Internet-issues-at.

Brown, D. (2014). ‘Digital Rights and the UN: Recent and upcoming UN resolutions’. Access, 11 June. Available at: https://www.accessnow.org/blog/2014/06/11/Digital-rights-and-the-UN-recent-and-upcoming-UN-resolutions.

Greenwald, G. and S. Saxena (2013) ‘India among top targets of spying by NSA’, The Hindu, 23 September. Available at: http://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-nsa/article5157526.ece.

Khilnani, S., R. Kumar, P. Mehta, P. Menon, N. Nilekani, S. Raghavan, S. Saran, & S. Varadarajan (2012) Nonalignment 2.0: A foreign and strategic policy for India in the twenty first century, New Delhi: Government of India. Available at: http://www.cprindia.org/research/reports/nonalignment-20-foreign-and-strategic-policy-india-twenty-first-century.

Kovacs, A. (2014). ‘Is reconciliation of multistakeholderism and multilateralism in Internet governance possible? India at NETmundial’, Internet governance: Global South Perspective Series (2) “NETmundial: Reflections from Brazil, India and Kenya” (edited by L. Kaspar), pp. 17-24.

Rao, P.V. Narasimha (2009), ‘Nehru and Non-Alignment’. Mainstream, 47(24). Available at: http://www.mainstreamweekly.net/article1399.html.

Sharma, N. and A. Tikku (2013). ‘Spy agencies, IB and RAW, put spanner in proposed privacy law’, Hindustan Times, 2 November. Available at: http://www.hindustantimes.com/india-news/spy-agencies-ib-and-raw-put-spanner-in-proposed-privacy-law/article1-1146418.aspx.


  1. The research on which this paper is based was made possible with the support from Global Partners Digital. 

  2. See e.g. A/HRC/DEC/25/117, A/RES/68/167 and A/RES/69/166. 

  3. See e.g. A/HRC/RES/21/16 and A/HRC/RES/24/5. 

  4. See e.g. A/HRC/RES/21/12, A/RES/68/163 and A/RES/69/185. 

  5. See e.g. A/HRC/RES/23/2 and A/RES/68/181. 

  6. See e.g. A/HRC/RES/22/6 and again A/RES/68/181. 

  7. See e.g. A/HRC/RES/24/21. 

  8. For the most recent resolution on this topic, see A/RES/69/204. 

  9. Permanent Mission of India to the United Nations Office (2013). ‘Contribution to the Working Group on Enhanced Cooperation by the Permanent Mission of India to the United Nations Office’. UNCTAD, Geneva, 9 October. Available at: http://unctad.org/Sections/ un_cstd/docs/WGEC_IndiaMission.pdf

  10. Ministry of External Affairs, Government of India (2014). ‘Government of India’s initial submission to Global Multistakeholder Meeting on the Future of Internet Governance, Brazil, April 23-24 , 2014’. NETmundial, Sao Paulo. Available at: http://content.netmundial.br/contribution/government-of-india-s-initial-submission-to-global-multistakeholder-meeting-on-the-future-of-Internet-governance-sau-paulo-brazil-april-23-24-2014/138

  11. CCAOI (2014) A study on the Indian perspective on Internet governance, 16 April, p. 20. Available at: http://www.ccaoi.in/UI/links/topnews_detail.php?id=11

  12. For an overview of India’s surveillance initiatives, see SFLC.in (2014) India’s surveillance state. Available at: http://sflc.in/wp-content/uploads/2014/09/SFLC-FINALSURVEILLANCE-REPORT.pdf

  13. For an analysis of section 66A of the Information Technology Act, see Kovacs, A. (2014) Regulating social media or reforming Section 66A? Our Recommendations to the Law Commission of India. Internet Democracy Project, New Delhi, August. Available at: http://internetdemocracy.in/reports/regulating-social-media-or-reforming-section-66a-our-recommendations-to-the-law-commission-of-india/

  14. ‘Statement by Mrs. Vijaya Lakshmi Pandit, Chairperson of the delegation of India, introducing the item on apartheid in the Ad Hoc Political Committee of the General Assembly’, 12 November 1952. Available at: http://www.anc.org.za/show.php?id=4971. 

  15. Personal interview, New Delhi, January 2015. 

  16. For a recent example of an intervention in which India stresses the importance of sovereignty in the context of a human rights debate, though not specifically addressing digital rights, see Statement by Mr. Mayank Joshi, First Secretary, on Agenda Item 68: ‘Promotion and Protection of Human Rights’ (b) Human rights questions, including alternative approaches for improving the effective enjoyment of human rights an fundamental freedoms (c) Human rights situations and reports of special Rapporteurs and representatives at the Third Committee of the 69th Session of the UN General Assembly, New York, 29 October, 2014. Available at: https://www.pminewyork.org/pages.php?id=2043. 

  17. In fact, where Internet rights are concerned, India generally seems more involved with UN GA resolutions that come out of its First and Second Committees, rather than the Third Committee. It is the Third Committee, on social, humanitarian and cultural affairs, that is generally considered the natural home for human rights resolutions at the General Assembly. The First Committee deals with disarmament and international security, while the Second Committee covers economic and financial matters. 

  18. ‘India’s Proposal for a United Nations Committee for Internet-Related Policies (CIRP). Statement by Mr. Dushyant Singh, Hon’ble Member of Parliament, India, on Agenda Item 16: Information and Communications Technology for Development.’ 66th Session of the UN General Assembly, New York, 26 October 2011. Available at: http://internetdemocracy.in/wp-content/uploads/2014/07/India-UN-CIRP-Proposal-at-UNGA-2011.pdf

  19. Statement by Ambassador Asoke Kumar Mukerji, Permanent Representative of India to UN, during Adoption of Resolution on Modalities for Overall Review of Implementation of Outcomes of the WSIS during 68th Session of the UN General Assembly, New York, 31 July 2014. Available at: https://www.pminewyork.org/pages.php?id=1956. 

  20. Statement by Ambassador Asoke Kumar Mukerji, Permanent Representative of India to UN, on Agenda Item 16: Information and Communications Technologies for Development, at the Second Committee of the 69th Session of the UN General Assembly, New York, 13 October 2014, https://www.pminewyork.org/pages.php?id=2016. 


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