COMMENTARY
judgment of the policy choice or the sub-
Technological Federalism
A Building Block to Constitutionalise
the Digital Sphere
Anushka Mittal
“Technological federalism” or
the interface of the landscape
of technological and data
governance with the federal
structure, as enshrined in the
Constitution of India, needs to be
ideally adjudicated upon. Till the
time it happens, it needs to be
theorised and understood in
detail. The centralisation of
data, digital architectures as
well as decision-making will be
inevitable in the absence of a
new perspective.
The author would like to acknowledge and
thank the anonymous reviewer for their inputs
as they helped to enrich the discussion and put
them in the right perspective.
Anushka Mittal (anushkam2020@gmail.com)
is a lawyer and researcher, interested in digital
constitutionalism.
18
D
igital regulation in India is being
undertaken through the intro-
duction of ministerial policies,
especially in the absence of an updated
data protection legislation. This policy-
making is an exercise of executive and
administrative power of the Indian State
(Deshpande 2006). The power along with
the executive and legislative compe-
tence is sourced from the Constitution.
In fact, delineation of such competence,
among various tiers of the state, is a
commonly accepted feature of federal-
ism (Singh 2016).
Legislative competence has been ens-
hrined in the Constitution in Part XI,
Chapter I, Articles 245–55, while execu-
tive power is provided in Chapter II,
ranging from Articles 256 to 263. The
executive power is also exercised ac-
cording to Articles 73 (by the union) and
162 (by the states), which posit that it is
coextensive with legislative power and
competence (Hindustan Times v State of
Uttar Pradesh 2003; Ram Jawaya Kapur
v State of Punjab 1955; Somanathan
2016). Further, the asymmetrical federal
apparatus (Sivaramakrishnan 2016) is
effectuated through a range of subjects,
enumerated in Schedule 7 of the Consti-
tution. These include entries over which
the union government has jurisdiction
(union list), with certain matters in the
sub-federal units’ control (state list)
while the rest may be shared between
the two zones of power and governance
(concurrent list).
A judicial review of executive action
subsists on the grounds of illegality, legi-
timate expectations, proportionality, arbi-
trariness, procedural impropriety as well
as a violation of fundamental rights
(Vakil 2018). However, the scope of re-
view of a policy is narrower. The courts
intervene in policy matters, to the extent
of its constitutionality and do not sit in
NOVEMBER 20, 2021
stantive content of the policy (Essar Steel
Limited v Union of India and Others 2016;
DDA and Another v Joint Action Commit-
tee, Allottee of SFS Flats and Others
2008). Further, any executive policy or
action not in consonance with the distri-
bution of power and legislative compe-
tence is liable to be struck down (Essar
Steel Limited v Union of India and Others
2016). Against this constitutional outline
and background, it must be noted that
the policies under discussion provide
central control and authority, without a
clear discussion about the scope of in-
volvement of the sub-federal units in the
creation of public digital infrastructure.
The policy and technological choice of
the use of a unique health ID to access
healthcare services was enshrined through-
out the ideation of the datafied health-
care system (NDHB Committee 2019). It
was recently adopted in law, through the
Unique Health Identifier Rules, 2021,
following the notification of the broad
based and totalising Aadhaar Authenti-
cation for Good Governance (Social
Welfare, Innovation, Knowledge) Rules,
2020. Even though it is “voluntary,” it will
continue to further entrench the socio-
economic role of Aadhaar, replete with its
exclusions. It is thus opportune to under-
stand technological federalism through
the example of the National Digital
Health Mission (NDHM), put in place by
the Ministry of Health and Family Wel-
fare (MoHFW) of the union government.
This will enable an appreciation of the
need for greater clarity with respect to the
space occupied by various governmental
entities and the diversity of design choices
that could have been exercised.
Constitutional Position of Health
In India, the right to health has been
judicially interpreted as a fundamental
human right (Consumer Education and
Research Centre and Others v Union of
India and Others 1995). The union exec-
utive regulates public health through
the MoHFW. It frames the National
Health Policy, which determines the pri-
orities for the health set-up. It supple-
ments the efforts of the sub-federal units
to provide for public health through
various schemes and grants, such as the
vol lVI no 47 EPW Economic & Political Weekly

National Health Mission (NHM 2018),
Ayushman Bharat Pradhan Mantri Jan
Arogya Yojana (AB PM-JAY), etc, as an
exercise of power under Article 282 of
the Constitution (Kumar 2020). Article
282 provides that
The union or a state may make any grants
for any public purpose, notwithstanding
that the purpose is not one with respect to
which Parliament or the Legislature of the
State, as the case may be, may make laws.
Further, the policies and the central
governance of health are a patchwork of
various items of competence embedded in
the Constitution. The central government
machinery is run as per the rules framed
by the executive under Article 77(3). Ac-
cording to Rule 3 of the Government of
India (Allocation of Business) Rules,
1961, the NHM is regulated by the union
due to Entry 20A1 of the concurrent list.
Similarly, the central government gov-
erns health through other subjects of the
union list under Entries 28,2 64,3 664
and Entries 16,5 25,6 26,7 298 and 309 of
the concurrent list. It must be noted,
however, that according to the constitu-
tional federal structure, “public health
and sanitation, hospitals and dispensa-
ries” is a state subject under Entry 6 of
the state list. This results in an overlap of
legislative and executive action, though
the broad contours of the actions have
been laid down by the courts. It is a test-
ed interpretation of Article 254 that the
same matter may be regulated by differ-
ent governments so long as one does not
usurp the domain of the other and nei-
ther are irreconcilable (Niranjan 2016).
The health schemes decidedly follow
a pattern of synergy, which are adopted
by sub-federal units. However, the basic
and foundational standards are laid
down by the union. For example, the
NHM subsumes the National Rural
Health Mission (NRHM), which provides
funds, grants, and sets the priorities for
the states to adopt the measures for
health services in their respective rural
areas. As judicially held, the scheme is
framed under several entries of the con-
current list and that the state govern-
ment does not possess jurisdiction to vi-
olate the terms and conditions contained
in the NRHM scheme and its operational
guidelines (Devendra, Kumar and Others
Economic & Political Weekly EPW NOVEMBER 20, 2021
v State of Uttar Pradesh and Others 2011).
At the same time, there are various
states that have drafted a legislation
dealing with public health as they enjoy
legislative and executive dominion over
it with a National Health Bill open for
adoption (Sinha 2020).
This state of affairs does not result in
the necessary clarity required to embed
a set of new and transformational digital
systems in the handiwork of the Consti-
tution. This may lead to acute repercus-
sions to outline accountability for public
digital infrastructure.
Digital Health Set-up
The National Health Policy, 2017 aims to
improve the quality of healthcare services,
universal access, and coverage for health
expenses. It codified a shift in health-
care policy by focusing on strategic pur-
chasing of secondary and tertiary care
services from the private sector and a
publicly-funded health insurance model
(Rathi 2019). Apart from the creation of
physical infrastructure, these goals are
sought to be achieved through the data-
fication of relationships and transactions
in the healthcare set-up. The National
Digital Health Blueprint was formulat-
ed, followed by the enactment of the
NDHM to establish the ecosystem. While
posited as a solution to measure and ad-
dress gaps in access and quality in
healthcare provisioning through data
analysis, it has morphed into data cen-
tralisation and insurance coverage (Rathi
2019). Presently, this digital campaign to
provide healthcare, predicated on elec-
tronic health records and health data
collection, has been subsumed within
the MoHFW’s domain.
The NDHM aims to collect data in the
form of electronic health records through
an identification system, formulate elec-
tronic registries of doctors, hospitals and
patients, store such data in a federated
architecture at the facility level with in-
formation exchanges and access available
at the state and central levels. It also seeks
to involve private players (service pro-
viders and insurance) for the creation and
expansion of infrastructure (NDHB Com-
mittee 2019). Further, the National Health
Authority (NHA) has been constituted by
an executive action (Wire Staff 2019),
vol lVI no 47
COMMENTARY
which oversees the implementation of
the public insurance scheme (PM-JAY)
and the creation of a NDHM (NHA). State
health agencies have also been created
for co-option (Ahmed et al 2019).
The digital public ecosystems are net-
works within a network (of the internet)
(Oliveira et al 2019). The NDHM is the ar-
chitecture atop which data is shared
across multiple rungs for various purpos-
es. An “open network architecture” com-
bines attributes of bottom-up and top-
down development factors (Longstaff
2000). The NDHM is designed in this way
to cater to private players, such as insur-
ance companies, which will nurture the
infrastructure and use it for private claims,
as well (National Health Authority 2020).
Its success or utility is premised on rap-
id adoption and interoperability, lest
bottlenecks be created. The literature on
the regulation of networked industries
acknowledges that jurisdictional alloca-
tion is vastly complicated due to the ver-
tical industrial structure of network in-
dustries, where different industry seg-
ments could operate at different optimal
geographical sizes (Trillas 2008). Thus,
the cooperation of all elements, such as
hospitals and sub-federal units, is en-
forced through central control by the
NDHM. This necessitates a greater study
of its federal implications and the regu-
latory space provided to such units.
Social Concerns of NDHM
Apart from the constitutional implica-
tions, arising out of its structural set-up,
there are myriad social concerns that
necessitate a prior discussion about eve-
ry digital project in India. While these
projects and policies are ostensibly un-
dertaken to resolve the issues of public
service delivery, a faulty governance
mechanism can increase the chasm than
reduce it. As the system is put into place,
it would be premature to note its suc-
cesses and defeats. However, based on
what we know, the following is a dis-
claimer of the future misgovernance
that can behold the users.
The NDHM encourages production and
collection of extremely sensitive data.
Health data has been designated as sen-
sitive personal data universally and in
India. It is also broadly defined as the
19
COMMENTARY
data related to the state of physical or
mental health of the data principal and
includes records regarding the past, pre-
sent, or future state of the health of such
data principal, data collected in the
course of registration for, or provision of
health services, data associating the
data principal to the provision of specific
health services (Personal Data Protec-
tion Bill 2019, Section 3[21]). It allows
for collection of health data through
medical and electronic records at vari-
ous levels of the digital architecture
comprising clinics/hospitals, state au-
thorities, and a central database.
It must be noted that different ele-
ments of a data profile vest at different
levels of this architecture. To that ex-
tent, it claims to have ensured privacy by
design. It seeks to ensure privacy in view
of the Health Data Management Policy,
which has been extensively critiqued
(Response to HDMP 2020). However,
without a strong and clear base law, it
spirals into administrative actions where-
by none of the privacy guarantees are
respected. For example, COWIN registra-
tions for vaccination appointments and
certificates have been pilfered on to
create unique health IDs, without res-
pecting the first principles of consent.
This is not only done with incomprehen-
sible information but also the complete
lack of knowledge of all participants
(Dogra 2021).
Similarly, while the NDHM may be
useful to improve the quality of care,
considering all health data of a person
will be available at one location to be
viewed and examined for care, there is
no logical understanding of its potential
to increase access to healthcare of ex-
cluded populations. In contrast, as care
becomes premised on digital citizenship,
it may reduce access or make it more dif-
ficult. At the moment, there are big hos-
pital chains that already make digital
records of patients and their care. This
individualised set-up is not interopera-
ble, that is, to suggest that one cannot
transfer all records in digital format
from one corporate entity to another. It
is hoped that the NDHM is followed in
letter and spirit to enable that. Further,
the mass of data collected is susceptible
to subversive tactics by its fiduciary. It is
20
important to sufficiently check the pow-
er of this fiduciary and ensure accounta-
bility standards, lest it be created as a
surveillance tool, increasing opacity bet-
ween the citizens and the others, includ-
ing service providers, the state, or com-
panies who use this information. The
NDHM hopes to build a data repository
for research and epidemiological trac-
ing. This function is premised on the use
of anony mised and de-identified data.
While the goals are legitimate in them-
selves to pursue public health (K S Put-
taswamy v Union of India 2018), the safe-
guards are sufficiently lacking as priva-
cy is premised on the good faith behav-
iour of the processor that anonymises
the data. There is largely no mechanism
or public audits for people to know if a
fiduciary or a processor is in the wrong,
unless the breach is made public.
All these risk factors assume a danger-
ous reality as they are laid atop the ex-
isting social, economic, and political dif-
ferences in the country. As information
becomes an even more potent and pow-
erful arsenal, the fissures can be exacer-
bated and widened through the misuse
and even use of such data for inequitable
or harmful policies (Sahay and Mukherjee
2020). Thus, the constitutional standards
are imperative to maintain, which require
a framework law at the earliest, along
with rules and policies, which indicate
proportionality of state action vis-à-vis
the legitimate expectations of privacy.
NDHM and the Federal Structure
The NDHM is being envisaged to achieve
the aims of universal health coverage,
digitisation of healthcare, and the ease
of use of health records and data. On the
constitutional level, there are various
sources of regulation in this space such
as Entry 47 (insurance) of the union list
or Entry 6 (public health) of the state list.
The competence of the appropriate gov-
ernmental tier is determined through the
doctrine of pith and substance enshrined
in Article 246. It is largely a judicial ex-
ercise, though it is imperative to specify
that there are various ways to analyse the
NDHM as a data policy, a health policy,
an insurance one, or as a unique subject,
which must be covered by the residuary
power of the union government. If it is
NOVEMBER 20, 2021
an exercise of residuary power under
Article 248, then such policy action must
explicitly reject its attribution to any
other item in the state or concurrent list
(Manmohan Vig, Delhi and Others v State
of Haryana and Others 1981). At the
same time, it must also be noted that
subnational law cannot be applied be-
yond the state; so, central regulation be-
comes the most viable option for the pro-
posed design and architecture of data
sharing, exchange, and use (Article 245
of the Constitution).
In the past, other policies and laws
like the Aadhaar (Targeted Delivery of
Financial and other Subsidies, benefits
and services) Act, 2016 and its linkage
with identification documents for in-
come tax purposes have been justified as
a part of Entry 8210 and the residuary
power of the union list (Binoy Viswam v
Union of India and Others 2017; K S Put-
taswamy v Union of India 2018). Similar-
ly, the previous digital health initiative
such as the Health Management Infor-
mation System was also devised as a
central database with cooperation from
all subnational units and facilities. How-
ever, it was largely an evidence and data
collection system for statistical purposes,
without direct predication of health ser-
vices on such data or even individualised
collection (MoHFW 2008). This can be
understood as part of the union mandate
to collect data on vital statistics.11 So far,
a clear characterisation of the NDHM is
not provided, which makes it susceptible
to legal challenges in the future.
In Conclusion
The federally disparate arrangement
and the subsequent weakness of the
healthcare system in India can be attrib-
uted to a fiscally strong centre (Pahwa
and Beland 2013; Sahoo 2016; Agrawal
2020). The course chartered by develop-
ments in India suffers from legacy issues
of centre–state coordination. Since a lot
of synergy or centralisation had been
observed for standard services (Balago-
pal and Vijaybhaskar 2019; Kumar 2020),
the digital trajectory has also taken a
similar path. The difference is the lock-
in and the investment costs, which do
not leave any space for sub-federal units
to depart from the top-down model
vol lVI no 47 EPW Economic & Political Weekly

provided by the union government. This
may be a unique effect of datafication,
which needs a fresh look from the prism
of federalism. Even the high-level group
on the health sector, constituted by the
Fifteenth Finance Commission, suggest-
ed that public health should be placed in
the concurrent list (Fifteenth Finance
Commission of India 2019). This would
significantly clarify the scope of power
of states vis-à-vis the union government.
Further, centralisation is usually adopt-
ed when there are jurisdictional spillo-
vers and when there are coordination is-
sues, product and policy economies of
scale (Trillas 2008)—a case characteris-
tic of the NDHM. However, all policy doc-
uments have been silent on these crucial
points for the civil society to base their
critique on, focusing instead on the need
for greater coordination between various
wings (NDHB Committee 2019).
The health schemes of yore were desi-
gned to transfer funds, while the cen-
tralised architecture as well as govern-
ance mechanism of the NDHM transfer
data across the various levels of govern-
ment. The point of departure is impor-
tant to understand the concerns not only
of governance but also of technology
design. At the moment, the NDHM is heav-
ily criticised as a disguised attempt to
universalise access to healthcare when
the focus rests on the digitisation of real-
time data to be supplied to the industry
associated with healthcare, mainly the
insurance players (Mishra and Padhi
2020). However, governance by states
could have addressed the need to include
technologies that best suit them, decide
the priorities, and use other kinds of ar-
tefacts beyond unique identification docu-
ments. This is but one example of the digi-
tal disruption of democracy and consti-
tutional structures, as we know them.
Notes
1 Population control and family planning.
2 Port quarantine, including hospitals connected
therewith; seamen’s and marine hospitals.
3 Institutions for scientific or technical education
financed by the Government of India wholly or
in part and declared by Parliament by law to be
institutions of national importance.
4 Coordination and determination of standards
in institutions for higher education or research
and scientific and technical institutions.
5 Lunacy and mental deficiency, including places
for the reception or treatment of lunatics and
mental deficients.
Economic & Political Weekly EPW NOVEMBER 20, 2021
6 Education, including technical education, med-
ical education, and universities, subject to the
provisions of Entries 63, 64, 65, and 66 of List I;
vocational and technical training of labour.
7 Legal, medical, and other professions.
8 Prevention of the extension from one state to
another of infectious or contagious diseases or
pests affecting men, animals, or plants.
9 Vital statistics, including registration of births
and deaths.
10 Tax on income other than agricultural income.
11 Constitution of India Schedule 7, Entry 30 of
the union list.
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vol lVI no 47 EPW Economic & Political Weekly