Technology, Exclusion and the Digital Divide

In one line

The digital delivery of public services creates a new form of exclusion which is automatic rather than decided, and Indian law addresses it in only two places: the accessibility provisions of the disability legislation and the information accessibility article of the Disability Convention.

Why digital exclusion is different in kind

Ordinary discrimination is an act by a person. Somebody refuses an admission, terminates an employment, denies entry to a well. There is an actor, a decision, a motive to prove or infer, and a defendant.

Digital exclusion has none of those. A subsidy is delivered through an application that requires a smartphone, a network connection, a literate user, a working authentication and a functioning fingerprint. A person who lacks any one of those receives nothing, and nobody has decided anything about them.

Four consequences follow, and they are the analysis.

There is no defendant. Section 3(3) of the disability legislation requires that a discriminatory act or omission be shown to be a proportionate means of achieving a legitimate aim, which presupposes an act or omission attributable to someone. A system that excludes by design has an author, but the author is a procurement decision taken years earlier.

The exclusion is total rather than partial. An inaccessible building can be entered with help. An authentication that fails returns nothing, and there is no partial access to a database.

It compounds every other disadvantage on this paper. The person without a smartphone is poor; the person who cannot read the screen is illiterate or blind; the person whose fingerprint will not register is old or does manual labour; the person with no network lives in a remote or tribal area. Digital exclusion maps almost exactly onto the groups Modules I to III are about.

And it is invisible to the institution. A department that has moved a scheme online sees the applications it received and does not see the people who could not apply. Failure to reach a person leaves no record, which is why this problem is systematically underestimated by the bodies responsible for it.

Where Indian law addresses it

Section 40 of the disability legislation requires the Central Government, in consultation with the Chief Commissioner, to formulate rules laying down standards of accessibility for the physical environment, transportation, information and communications, including appropriate technologies and systems, and other facilities and services provided to the public in urban and rural areas.

Note that section 40 covers information and communications and appropriate technologies expressly, so the statutory hook exists; what it produces is a set of standards, and standards bind through the sections that make them mandatory.

Article 9 of the Disability Convention requires access to information and communications, including information and communications technologies and systems, and requires States to promote access to new information and communications technologies and systems, including the Internet, and to promote accessible design at an early stage so that these technologies become accessible at minimum cost.