By Swarati Sabhapandit
Ever since the notion of political community has entered the lexicon of human civilisation, scholars from different walks of time and space have interpreted this phenomenon. The idea of a ‘political community’ can take various forms, depending on how power is structured between the rulers and the ruled. For us, the most familiar version of the political community is the State.
The emergence of the State as an acceptable form of political community was reached through a basic understanding concerned with the establishment and regulation of governing authority and the preservation of the rights of the population. The arrangement to preserve a sovereign authority over a defined territory and people was justified as a means to promote peace and sociability. Thus, sovereign power, which was deemed to be exclusively exercised by the State, became the locus around which the modern governmental ordering was regulated.
While the notion of sovereign power has been interpreted in multitudes, a few foundational credentials remain powerful tropes of modern political thought. French jurist Jean Bodin’s counsel on political laws of governmental development continues to hold relevance today. Writing in 1576, Bodin argues that every viable state must possess a single, supreme centre of authority (sovereignty) containing all governmental powers. However, he also contends that in order to sustain the state, it is essential to maintain a separation between legislature and executive, arguing that the more limited the power of sovereignty is, the more assured it is. Bodin’s investigation of the political community marks an important shift in orientation from Roman law, where he shifted the focus from the rulers to the political constitution of the people or nation.
Almost 200 years later, Jean-Jacques Rousseau’s writings on the nature of state-building gave a concrete shape to the contemporary understanding of the State, sovereignty, and political freedom. For Rousseau, a stable political community is marked by a social contract in which humans exchange their natural freedom for ‘higher’ political freedom. Thus, the political equality and equal liberty granted to the people within the political community reconcile freedom and government. The contemporary notion of popular sovereignty could be derived precisely from these arrangements. Bodin and Rousseau’s interventions serve as crucial precepts to understand the reconfiguration of sovereignty that contemporary democracies are witnessing today.
Over the past two-odd decades, governance has undergone a major shift with the rise of the digital revolution. Our relationship with the State is now increasingly mediated and controlled through digital technologies. The United Nations defines digital governance or e-governance as the process by which governments, the private sector, and civil society develop and apply shared principles, norms, rules, decision-making procedures, and programs to shape the evolution and use of the digital environment. It essentially involves the establishment of a framework that guides the equal and responsible use of digital technologies, which benefits all the stakeholders (emphasis added).
As democracies increasingly lean towards e-governance, it is crucial to take stock of the aspired goal and the lived experience these polities encounter. Let’s take the example of India, the world’s largest democracy, a country going through a substantial ‘digital revolution’ in governance.
With the introduction of the Unique Identification Authority of India (UIDAI), colloquially known as Aadhaar, which issues a unique digital identity to each resident of India, the State claimed that India entered a new age of digital transformation. The initiative was introduced to increase efficiency, transparency, and effectiveness in the distribution of welfare services by the State. It was also anticipated that the issue of intermediaries and pilferage—considered a significant obstacle in welfare distribution—would be significantly reduced. However, the decade that followed was marked by intensive data collection, persistent breaches of civil rights, fragile digital safeguards, and an added layer of indignity for the poor and disadvantaged.
Despite early warnings about possible damages, the lack of a legal framework, and multiple court rulings to prevent mandatory implementation and instances of legislative evasions, the Aadhaar project was rapidly expanded and hailed as a major success in the State narrative. While the project began without much understanding of the problem it was expected to solve, the available evidence points towards a substantial profit for private entities. Although Section 57 of the Aadhaar Act, 2016 had permitted private entities to use Aadhaar authentication, the Supreme Court of India, in Justice K.S. Puttaswamy (I) (2018) , struck down this provision to prevent such usage. In a striking violation of this ruling, however, the State amended the Aadhaar rules in February 2025 to allow private entities to use Aadhaar authentication for service delivery, citing the goals of promoting ‘ease of living’ and improving ‘access to services’.
The civil society widely criticised the State’s move as unwarranted, and the expansion was part of the ‘spectre of the surveillance state’. Rewinding a few years, these concerns were echoed in a statement by Nandan Nilekani in the foreword to a 2016 Credit Suisse report on India’s banking sector, where he noted that residents’ Aadhaar-based “digital footprints” could unlock a USD 600 billion business opportunity.
Given Nilekani’s role as the former chairperson of UIDAI and a relentless advocate of the Aadhaar project, the apprehensions surrounding the State’s decision to grant private entities access to Aadhaar authentication cannot be easily dismissed. In practice, Aadhaar has now become deeply embedded in the private sector, serving as a mandatory requirement for accessing a wide range of services—including mobile SIM cards, internet connections, flight bookings, hotel reservations, and more.
While Aadhaar is possibly the largest and most powerful infrastructure of surveillance and data mining any democratic state has ever built, the scope and nature of this infrastructure are gradually expanding. Ministry of Civil Aviation, in 2017, launched DigiYatra, an opt-in service at Indian airports to make airport travel ‘seamless, contactless, hassle-free, and paperless’ for all passengers. The service enables digital processing of passengers at airports by using facial recognition technologies (‘FRT’) and Aadhaar-linked credentials to authenticate them as opposed to the conventional use of boarding passes. While the Ministry’s DigiYatra Biometric Boarding System (‘DYBBS’) policy clarifies the voluntary nature of the application, consent of the passengers became paramount due to privacy and surveillance concerns, as well as the inaccurate nature of the technology being used.
However, more recently, concerns have been expressed about the unlawful and undignified manner in which DigiYatra is being deployed in the airports. Passengers are reportedly being coerced by private airport personnel and security staff into signing into DigiYatra service and scanning their faces at multiple airport checkpoints. A recent report by The Hindu revealed that among 21,000 domestic passengers flying out of Delhi, 21 percent signed up for DigiYatra without realising it, and only 15 percent used the service knowing ‘the benefits it offered’. While DigiYatra remains considerate of the notion of ‘consent’, some domestic airports have integrated ‘paperless biometric technology’, raising severe privacy and surveillance concerns.
Another flagship technological intervention integrated by the State during the peak of the COVID-19 pandemic was Aarogya Setu. Aarogya Setu is a mobile-based application developed under the State’s e-governance initiative to ‘track and sensitise’ the citizens regarding the spread and possible precautions for COVID-19. Although the central government initially mandated the installation of the application only for its employees, in the post-pandemic period, it became widely embedded in the digital devices of the general public, primarily to access services related to travel, healthcare, and accommodation.
Like Aadhaar, the sweeping imposition of Aarogya Setu was accompanied by legal lacunae, privacy concerns, excessive collection, processing, and possible sharing of non-consensual data, absence of statutory backing, and utter lack of transparency and accountability on the part of the State. In a report published by Internet Freedom Foundation (2020), a non-profit organisations working towards defending digital rights, it is noted that while the benefits of the app remain unclear and questionable, the Central government itself has apologised for the opaque and ‘irresponsible’ behaviour with respect to the app.
So, how do these concerns related to privacy, surveillance, and inequality lead us to interrogate the State’s sovereign power today? This is due to the direct correlation between the integration of these technologies in everyday governance and a simultaneous inflation of sovereign power exclusively exercised by the State.
Let’s try to unpack this puzzle through two arrangements of constitutional liberal democracies: constitutional rights and a set of rules that regulate the institutions of the state.
First, the integration of these technologies is accompanied by serious legislative evasion. When Aadhaar was introduced in 2010 as a voluntary initiative through an executive order and immediately made compulsory to access social welfare services, the legislature was kept completely out of this exercise. When the initiative received much backlash due to privacy concerns and the unimaginable pain it inflicted on the poor and downtrodden, the Aadhaar Act was introduced in Parliament as a money bill to circumvent the RajyaSabha’s constitutional role. Since the incumbent government already had a majority in the Lok Sabha, the entire exercise was a farce that undermined the legislature’s authority and violated multiple court orders that reiterated the voluntary nature of Aadhaar. The State’s actions raise important concerns about the organisation and distribution of sovereign power in constitutional democracies. Although the constitutional framework envisions a balanced distribution of sovereign power across various state institutions, the political executive often appears to function as the primary wielder of this power.
Second, while in 2017, the Supreme Court of India upheld the validity of the Aadhaar Act, it simultaneously entrenched the right to privacy in the lexicon of constitutional rights in India. In the following years, the State has consistently undermined this constitutional framework by integrating technologies that significantly compromise privacy and contribute to a ‘chilling effect’—where citizens begin to self-censor out of fear of potential legal liabilities. Even more concerning is the growing involvement of private actors in this expanding ‘data ecosystem,’ now increasingly supported and legitimised by legal mandates.
Third, contrary to the UN definition of digital governance, which emphasises the involvement of multiple stakeholders for responsible use of digital technologies in governance, what was witnessed in India’s case was a complete disregard for civil society, political representatives, and, most importantly, the citizens who are at the receiving end of these initiatives. An initiative aimed initially at improving transparency and efficiency in governance has instead evolved into a system where the State holds greater access to our private lives than we do to its functioning. While informed consent is widely recognised globally as a cornerstone of privacy and data protection laws, India’s approach to data governance has significantly blurred these boundaries. Under the Aadhaar regime, citizens lack the autonomy to freely choose whether or not they wish to identify themselves with the government.
Fourth, the modern state system is marked by a set of rules known as public law, which dictates the arrangement between the sovereign and the people so that citizens’ political freedoms are fully recognised while sovereign power is least exercised. As a result, requirements of transparency are held to be directly proportionate to power. Since the State has the exclusive right to exercise sovereign power, which creates an unequal power relationship between the sovereign and its citizens, digital technologies should enable closer scrutiny of the State and its institutions, which will serve a legitimate public interest rather than increasing surveillance over its citizens.
Fifth, Aadhaar and other technologies were developed in the absence of data protection laws and with an absolute disregard for privacy rights. While more than a decade later, in 2023, the Digital Personal Data Protection Act (‘DPDPA’) was passed, much of the damage related to privacy, security, and inequality has already been done. While the new act nominally advances data protection, it simultaneously grants sweeping administrative powers to the executive under broad categories like sovereignty, national security, and public order. More importantly, the law does not classify ‘sensitive personal data’ as a distinct category needing additional safeguards and caution. Global instruments such as the European Union’s General Data Protection Regulation (‘GDPR’) identify data gathered through biometric and facial recognition as a ‘special and vulnerable’ category requiring higher processing standards.
Additionally, the State has been manipulating the existing legal provisions to blur the requirements of transparency in the guise of protection of the right to privacy. The DPDP was proposed to safeguard and balance peoples’ right to privacy and their right to information, which are fundamental rights flowing from the Constitution. Unfortunately, the Bill fails on both counts. Section 44(3) of the DPDPA seeks to discard Section 8(j) of the Right to Information Act, 2005 by putting a blanket exemption to the disclosure of personal information of public servants. It also discarded Section 8(1) of the RTI Act, under which any information accessible to Parliament or a state legislature could not be denied to the public. Through a selective interpretation of privacy and transparency concerns, and without any independent oversight, the State has effectively established a covert security apparatus armed with an abundance of power and data at its disposition.
Since the State is the primary processor of the data accumulated through the digital governance platforms, the security of our personal data is conditional primarily to the discretion of the State. At this stage, faith in the State’s goodwill appears to be the only accessible solution to its citizens. But can faith alone truly define the contractual relationship that underpins the very foundation of the modern state system? These reflections should be anchored in a foundational democratic principle — popular sovereignty, which is rooted in a social contract wherein citizens confer legitimate authority to the government in exchange for protecting their rights.
Therefore, the concept of sovereignty must be grounded in the principles of accountability and transparency, which serve to restrain the exercise of power. To reflect Bodin’s counsel, sovereign power is best preserved when it is exercised sparingly. Yet, we are witnessing a stark departure from this order today. The State and its institutions are relentlessly pushing the boundaries of sovereign power under the banner of progress, welfare, and technological advancement. The consequences of this unchecked expansion — censorship, criminal profiling, surveillance, financial fraud, and rising inequality — are steadily becoming apparent.
Democracy has something important to say to and about the more egregiously permissive and self-referential formulations and practices of sovereignty. Power needs restraints as people seek to live self-determined lives in conditions absent from the perpetual threat or use of violence, and sovereignty appears to be a good place to think about these aspirations. The State legitimises its exercise of sovereign power that often imposes a homogenised and unitary nation upon a diversity of human identities and experiences. People disappear, or if they appear at all, they appear subjugated. It is against such an arrangement that the constitutional document plays a balancing act by recognising the diverse identities under the constitutive category of citizen.
Mattew S. Weinert’s (2007) counsel on ‘democratic sovereignty’ might offer an important insight. Weinert argues for an alternative notion of sovereignty where one should shift the focus away from sovereignty’s agent (the State) to sovereignty’s content. Here, the legitimisation of the State and popular sovereignty practices is measured through common good and democratic principles like human rights, the rule of law, and environmental protection, or principles that preserve and advance the general welfare of the political community and its constituents. It is precisely such principles on which our democracies are founded that call for an interrogation of the expanding sovereign power today. (IPA Service)
Courtesy: The Leaflet
