Recent revelations about the Election Commission of India’s (mis)conduct have exposed a deeper problem of how technology systems in government are used to reduce accountability and perhaps even subvert the law. We now know that unilateral, unauthorised changes were made to the electoral process without proper authority and in violation of the laws governing our right to vote. The ECINET, the ECI’s main technology system, has played a key role in enforcing these changes in ways that are invisible and not contestable by the public. This should worry all Indians who have equated digitisation with better accountability and transparency. Left unchecked, this kind of autocratic digitisation appears designed for disenfranchisement. Three particular concerns stand out.

First, they show how officials can make illegal or unauthorised changes using internal, informal orders directly into IT systems that become the “de facto” rules of the electoral system. Such de facto rules are almost impossible to contest. This was seen when new fields appeared in the digital Form 6 for fresh voter registration, forcing first-time voters to provide details about their parents/grandparents. Why is a person’s right to vote dependent on their parent or grandparent’s identity? Yet voters could not proceed practically without filling out these fields in the form. These new fields appeared suddenly, in departure from the contents of Form 6 prescribed by the Registration of Electors Rules, 1960 and the Representation of the People Act, 1950. Demanding such additional information from voters must be authorised by law, through proper amendments and modifications of the 1960 Rules that must then be laid before Parliament (per Section 28 of the Representation of the People Act).

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Second, such autocratic digitisation through the back end of the IT system risks introducing centralisation and opacity into the electoral governance system — which was legally designed to be decentralised and transparent. This is seen in the concerns reportedly raised by two of the Election Commissioners in relation to the poor access controls for the portal and its databases. On the one hand, they flagged how key constituency-level statutory authorities responsible for preparing electoral rolls (the Electoral Registration Officers) struggled to get proper, complete access to the online portal from the central IT officials. On the other hand, there is no audit to certify the list of people within the ECI who can access or modify the electoral database, raising serious issues about oversight over unauthorised access to this system. This raises questions about the quality of the ECI’s technology-led governance strategy, which seems counter to the design of India’s electoral systems. Under the law in India, the vision for electoral roll preparation is decentralised by design for robustness and transparency. The ECI’s changes ought to aid this vision, rather than undermine it.

Third, these developments highlight the failure of the IT system, and those overseeing it, to respond to technology’s own shortcomings. This failure has dire consequences for the right to vote, as seen when 97 voters in Goa were incorrectly removed from the electoral roll after the software flagged them for “discrepancies”. They subsequently provided documents in a full legal process to establish that they were legitimate voters. Despite this, the digital system did not allow deletions to be reversed. Reports show that despite multiple requests from state-level officials to central ECI officials (including the Director General of IT and Goa’s Senior Deputy Election Commissioner), no option to roll back these deletions was created. All 97 voters were excluded from voting. Each vote has value, and how many more are being lost to the same fate? Technology systems are often feted as being nimble, agile and responsive — with the law failing to keep up. The reality seems to be the reverse.

The internal dysfunction of the ECI exposed by these revelations has laid bare the crisis of accountability and governance facing electoral governance in India. It also highlights a broader challenge, reflecting a new way in which many state institutions now operate. Officials are increasingly subverting the law from within institutions, implementing illegal changes “on the fly” to their IT systems using only bureaucratic orders, hidden from public view. Despite this subversion, the direct implementation of these changes through ECINET makes them binding in practice.

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Worryingly, the ECI’s mode of autocratic digitisation is not isolated. Indeed, as my doctoral research has revealed, our experience with other technology-led systems, such as Aadhaar, shows similar dysfunctions. Over the years, many changes to Aadhaar’s IT system have been accompanied only by bureaucratic orders, even when they shift important legal and policy choices. For example, the adoption of facial authentication (in 2018) was moved directly through the IT system and announced through bureaucratic circulars without wider public debate. Yet, this represented a major change from the earlier policy choice (in 2010) not to use facial authentication, for reasons including its unreliability and privacy risks. Much like the changes within ECINET, the risk is that burying these changes in bureaucratic orders and IT systems introduces opacity that enables autocratic digitisation. Asking the public to approach the courts to review such invisible measures is like asking them to catch the wind. We must confront this reality as this public debate continues in the months ahead, to think imaginatively about the forms of accountability we demand from our digitising public institutions.

The writer is a Research Fellow in Law & Technology at University College London