Do “National Security” Elections Imperil National Security Institutions?

By Gunjan Chawla

(This piece first appeared on The Leaflet)

As we approach the final phases of India’s election to the 17th Lok Sabha, national security has emerged as one of the most debated issues of the season. On the one hand, the ruling party has portrayed the need for a majboor nahi,majboot sarkar espousing a muscular, aggressive approach to security threats within and outside our national borders. On the other hand, most opposition parties have taken a broader interpretation of what ‘national security’ entails. They have included economic and financial security as well as emerging threats to data and cyber security in their agenda alongside the more ‘traditional’ threats like border disputes, international terrorism and communal violence that need to be dealt with on a war footing.

In this piece, we examine whether the treatment of national security as an issue up for debate in election campaigning could jeopardize national security institutions? As a starting point, we must distinguish between the law that governs our national security and the policies that implement our national security goals.

National Security Law v. National Security Policy

It is relevant to mention that in the last five years, we have not had any substantive legislative changes to establish or alter the legal framework that applies to traditional or even emerging threats to national security. The war-making and emergency powers of the executive must still be exercised within the constitutional bounds. By corollary, counter-terror and counter-insurgency operations conducted within the law-enforcement paradigm must still respect and uphold the fundamental rights of citizens and guarantee due process rights to accused persons to the extent that such rights are not explicitly limited by any Parliamentary enactment.

We have, however, seen a tectonic shift in the policy that governs the administration of our security affairs with unprecedented emphasis and publicity given to, inter alia, covert operations and targeted operations dubbed as ‘surgical strikes’ to counter the evolving strategies of sub-conventional warfare employed by non-state actors.

Accountability to the House of the People v. Accountability to the people

The framing of national security as an election issue by the BJP has been lauded by many, including former diplomats and security experts. They seem to believe that this would lead to a democratization of India’s security complex, and open up debates on crucial issues. This argument is premised on the truism “security is everybody’s concern”.

Indeed, it is true that terror does not discriminate – and citizens from all social strata are at risk if the unity, territorial integrity or sovereignty of the country is threatened. However, the very reason for electing a democratic government is that citizens should not have to worry about day-to-day security, which is entrusted in the hands of an elected government that (we hope) will do so.

The social contract between government and citizenry is renewed after every democratic election.It demands that the government perform its core function as the sentinel on the qui vive. Except in countries that mandate conscription or compulsory military service for all adults (which India does not), the wider electorate must be the sentinel of the last resort.

I submit that it must not be left to the governed to choose whether an aggressive or conciliatory policy is better suited for the entire nation. These decisions ought to be based on a careful scrutiny of our operational and institutional strengths and vulnerabilities as they relate to every specific threat. Say, for example, the threat to the integrity of India’s national borders posed by China must obviously be dealt with differently to the threat posed by armed insurgencies fueled by the discontent of specific sections of the populace.  A one-size fits all approach has far-reaching implications for threats to internal security. The securitization of the issue of migrants, and the treatment of refugees as illegal migrants within this category has ended up creating a new “other” from among “us”. The population of this “other” seems to be expanding rapidly – to include even rightful citizens from already marginalized communities within its ambit. In this particular category of threats to national security, an aggressive approach would serve to tighten the spiral from oppressive policy to retaliatory violence, making attacks more frequent and increasing the number of casualties on both sides.

A one-size fits all approach also militates against the fundamental doctrine of checks and balances enshrined in our Constitution. Merely by relying on the mandate of the electorate for aggressive responses to any nature of threat, the executive cannot be permitted to bypass discussing these issues in Parliament, with the duly elected representatives of the people. Backed by the legal protection of parliamentary privileges, the added layer of scrutiny by Departmentally Related Parliamentary Standing Committees (Defence, Home Affairs and External Affairs), makes it an appropriate forum – indeed, the appropriate forum to disclose relevant information to stakeholders who can then hold an informed debate and critically analyze these issues to support or where required, criticize the Government’s position on contentious issues.

Free and fair elections v. Opaque decisions in the interest of national security

This links directly to whether or not the average voter has made an informed choice between these policies. Accurate, reliable information on the nature, scope and gravity of threats to the security of the nation is sparse at best, and deliberately concealed at its worst. Security operations often require that certain information be kept from citizens, in order to afford greater agility and freedom of action for the effective conduct of operations by our security forces. Indeed, such provisions are essential to ensure the maximum degree of protection to our security forces in many cases.

The national security exception enshrined in Section 8 of the Right to Information Act, 2005 is among the fundamental provisions that exempt our national security institutions from obligations of public disclosure of information. For instance, the Home Minister’s claim that the Government conducted three surgical strikes in the last 5 years, but was willing to publicly disclose only two, easily falls within the national security exception under the RTI Act, shielding it from public scrutiny. An added layer of protection from disclosure is the risk of prosecution under the Official Secrets Act, 1923 which no doubt dissuades public functionaries from publicly disclosing details or blowing the whistle on any State action that points to illegality in matters that relate to defensive or offensive security operations. Additionally, the threatened prosecutions of senior journalists under the Official Secrets Act bear testimony to the fact that the wider electorate will almost never have access to full information on the threats that imperil their lives and safety, the conduct of operations undertaken to combat these threats, and perhaps even the precise expenditure incurred by the State in its effort to combat these threats. Similarly, questions around the legality of the ‘non-military pre-emptive’ Balakot strikes and the casualties caused in the strike linger. In the absence of complete, accurate information and even the right to ask for information on these topics, one cannot reasonably conclude that the decision of the electorate would be a free, fully informed choice.

The exclusive availability of such information to the ruling party alone raises another distinct issue that concerns the fairness of the electoral process. By virtue of our information security laws as they stand, the ruling party has access to a much larger, deeper trove of information on India’s national security threats and opportunities than the opposition ever could. This in itself, militates against the principle of a ’level playing field’ between political parties contesting elections on these issues. The ruling party will always have better access to information, and thus, be free to politicize frame issues as they see fit to suit their needs. Many have voiced concerns against the politicization of the military and national security issues. Yet, the Election Commission has issued standing instructions to the effect that MCC requirements are not applicable to any matters pertaining directly to the armed forces, including defence purchases, effectively giving the ruling party a free reign to frame the issues up for debate. Its intervention on the issue is restricted to a general advisory requesting candidates to desist from using photographs of armed forces personnel in their election campaigns, as they are ‘apolitical stakeholders’.

In light of these legal positions that militate against transparent and accountable governance insofar as it relates to security issues in the context of elections, it is difficult to conclude that making the electorate the ultimate adjudicator of India’s security policies and positions is in the nation’s best interest.

Signaling strategic partnerships or shifting alliances?

The uncertainty in national security and foreign policy that is created in the process could also adversely impact the conduct of our foreign relations. Unlike the United States, or other western countries that periodically articulate and review their national security policies or strategies to signal their intent to allies and adversaries alike, no such document has been forthcoming by any of our governments previously. Indeed, some may argue, and justifiably so, that the articulation of such policies and placing them in the public domain is a ‘foolish’ move that only suits the security requirements of highly advanced, industrialized nations that manage their national security through longstanding military alliances and collective security arrangements. India does not benefit from any regional or collective security agreements. Indeed, the vast majority of security threats to the nation emanate from within the subcontinent.

However, in a time of shifting alliances in the face of what has been dubbed as “Cold War 2.0”, the failure to articulate a clear policy position that deviates from our traditionally non-aligned posture in the face of a polarized world order adds to the uncertainty in the minds of voters, aggravates adversaries and alienates potential allies. Political inclinations and international alliances that develop in the heat of election campaigning for electoral gains could easily unravel after the electoral mandate is secured, giving India the reputation of being an untrustworthy ally. For this reason, election manifestos of political parties announcing their intended policies are a poor substitute to a coherent and comprehensive policy framework backed by consensus in Parliament.

Thus, a legal and policy framework must urgently be formulated to strengthen Parliamentary oversight over institutions and infrastructure that govern India’s national security, if we truly wish to democratize the institutions and processes that ensure our national security. Populism in security matters without accountability and a reasonable level of transparency, irrespective of the party functioning in such a paradigm, is the anti-thesis of democratic governance.  In the absence of accountable institutions, each time a politician asserts that “national security is our top priority”, in constitutional terms this implies that citizens with access to restricted information risk sacrificing their guaranteed fundamental rights at the altar of an aggressive national security policy with unpredictable spin-off effects, internally and externally.

Will the nation ever be “secure”?

For any party to claim that national security is an end-state that can be “achieved” or “attained” is nothing but a blatant attempt to mislead an already misinformed electorate. No nation – democratic or otherwise can ever claim to have “achieved national security” or be completely unencumbered by threats to the security of its governance infrastructure and especially, its security personnel. A state that has fully realized its aspirations for a secure national border, territory or population is a false utopia of perfect place where no external or internal forces threaten the sovereignty and integrity of the nation.

The ground reality of such a proposition translates into a scenario that pushes us closer to a state of perpetual war in the pursuit of this utopia, without any official declaration of war from Government or Parliament. National security, whether considered as an aspiration, principle or goal–can only be managed at best and its worst, must be salvaged.

And so, where the electorate is tasked with picking the best managers of our national security, the suitability of candidates for this job must be benchmarked against their willingness to ensure accountability and transparency in this everyday affair.

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India’s new Defence Cyber Agency

Recent developments in India’s space policy including Mission Shakti, India’s first anti-satellite weapon testing is indicative of the states growing concern into contemporary threats to the state; India is ranked among the 15 least cyber-secure countries in the world from the list of 60 countries. To this end, the Prime Minister announced the setting up of three new tri-service agencies, for Cyber Warfare, Space and Special Operations, at the Combined Commanders’ Conference in Jodhpur last year.

In this post we will mainly deal with the third tri-service agency, the Defence Cyber Agency, which is setup to work in conjunction with the National Cyber Security Advisor. Its focus will reportedly be limited to military cyber-issues and not civilian ones. Its Tri-service nature means that it would include as many as 1000 personnel from all three branches, the Army, Navy and the Airforce. Rear Admiral Mohit Gupta has been appointed to be the first head of the DCA.

Current Legal Framework

The current legal framework dealing with cyber-security is not centralized. Different agencies are responsible for various aspects of cyber-security. These can broadly be classified into agencies focusing on civilian cyber security, and those focusing on the military cyber security.

The National Cyber Security Policy was adopted by the Government of India in 2013 to ensure a secure and resilient cyberspace for citizens, businesses and the government. This policy was launched to integrate all the initiatives in the area of Cyber Security and to tackle the fast-changing nature of cybercrimes. Initiatives such as setting-up the National Cyber Coordination Centre (NCCC), National Critical Information Infrastructure Protection Centre (NCIIPC), and creating sector specific Computer Emergency Response Teams (CERT) were implemented under the policy.

The Indian Computer Emergency Response Team (CERT) is an office within the Ministry of Electronics and Information Technology. It is the national nodal agency for responding to computer security incidents as and when they occur. It deals with mostly civilian threats by issuing guidelines, vulnerability notes, and whitepapers relating to security practices as well as providing a point of contact for reporting local problems.

Cyber-Security concerns in India

The 2019 Global Risk Report highlights India’s history of malicious cyber-attacks and lax cybersecurity protocols which led to massive breaches of personal information in 2018. It also specifically mentions the government ID database, Aadhaar, which has reportedly suffered multiple breaches that potentially compromised the records of all 1.1 billion registered citizens. It was reported in January that individuals were selling access to the database at a rate of 500 rupees for 10 minutes, while in March a leak at a state-owned utility company allowed anyone to download names and ID numbers.

The Digital India initiative has resulted in a boom in the internet usage in the country. However, due to the lack of proper security protocols in place, there have been an estimated 700 hacks into state and central governments websites, as was reported in Lok Sabha. Additionally, in January of 2017, the National Security Guard page was hacked by suspected Pakistan based operatives who then went on to post anti-India content on it. The need to prevent such attacks on Indian websites has been a matter of debate since 2016, following the hack of the IRCTC website.

While some aspects of cyber security are easy to classify, such as the breach of IRCTC being a civilian breach and hacking the website of the National Security Guard being a military breach, other potential cyber threats could fall within a grey area.

Defence Cyber Agency

The lacuna which the Defence Cyber Agency seeks to fill, exists in the realm of military cyber security. It is currently governed by the Defence Intelligence Agency (DIA) which operates under direct control of Ministry of Defence and focuses on the international offensive and defensive capabilities of the state. It is the nodal agency for all defence related intelligence.

The formation of the Defence Cyber Agency, is supposedly meant to combat the current threat of foreign hackers from nations such as China or Pakistan, who could attack India’s digital infrastructure using Cyber warfare. The new agency could potentially set up the roadmap for the future of India’s cyber security specifically, by combating threats made to military targets.

A common feature of many military agencies is the lack of legislative clarity; in the absence of a clear and coherent policy document or a parliamentary enactment to this effect, the parameters on which the domain of ‘military cyber security’ is demarcated remain unclear. The definition of ‘military’ in this case could potentially be based on the nature of the target (IRCTC hack vs. NSG hack) the origin of the threat (geographical location or the nationality of the perpetrator) or even the source of the threat (China/Pakistan or amateur domestic hackers). 

The Agency is expected to follow a decentralized structure where the bulk of the agency will be focused into smaller teams, spread around the country, with the command center in Delhi. It also aims at putting dedicated officers in major headquarters of the tri-forces to deal with emerging cyber security issues.

One of the main takeaways from the setting up of this agency is the inter-service cooperation between the Army, Navy and the Airforce. The move is also in keeping with the Joint Training Doctrine Indian Armed Forces, of 2017, which seeks to foster ‘Synergy’ and ‘Integration’ amongst the three Services and other stake-holders leading to an enhanced efficiency and optimum utilisation of resources.

Since the new agency will fall under the purview of the Ministry of Defence, the precise mandate and composition of the DCA are not clear at this point. After its formal inauguration, which is supposed to happen sometime this month, it is possible that people will have a better idea of the agency’s role and functions in maintaining India’s cyber defences.

A key issue, which has not been addressed so far remains the need to employ experts in the field of cyber-security. While the new agency is projected to employ over 1000 personnel from the three services, employing personnel with sufficient technical knowledge will be difficult, owing to a general lack of qualified personnel in this field. Additionally, with the boom in the cyber security market, the DCA would not only have to contend with private players in the domestic markets in attracting qualified talent, but also face stiff competition from international players in the scene.

In addition to setting up the DCA, it is also important that all three services take this opportunity to better train existing personnel in basic cyber security practices, including staff which is not specifically deployed to the DCA.

It is hoped that the formation of such an agency will not only improve India’s cyber security but also bolster its international reputation in terms of digital safety. The creation of this new agency highlights the weaponization of cyberspace as a tool of modern warfare, and also the importance of data and information sharing between the three services in order to better protect the nation.

Will Fake News Decide the World’s Largest Election?

Varsha Rao

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Social media platforms like Facebook and Twitter have been hauled up by many an authority for their role as conduits in the dissemination of ‘fake news’, including the United States Senate and India’s Parliamentary Standing Committee on Information Technology.

In the run-up to the Lok Sabha Elections, social media and messaging platforms have put in place strategies to check attempts at spreading misinformation.

To prevent voter suppression (acts aimed at reducing voter turnout), Facebook bans misrepresentations about the voting process, such as claims that people can vote online. The  launch of political advertisement archives in India by Facebook, Google and Twitter has also contributed to the fight against misinformation campaigns.

Fact-checkers are the second line of defence after artificial intelligence and machine learning has had its turn in identifying potential pieces of false news. The judgement and research ability of the fact-checker determines the rating that the highlighted content will receive as well as its priority on platforms, such as on Facebook’s News Feed.

However, entities involved in misinformation campaigns remain undeterred.

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Cutting Off a Hydra’s Head: Challenges Befalling Social Media Intermediaries

The existence of multiple forms of social media and competing platforms allows malicious actors to engage in ‘platform shopping’ and utilize methods which throw up fewer obstacles.

An example of this is podcasts or series of audio files. Scrutinizing the content of podcasts for hate speech and misinformation is much more difficult than identifying buzzwords in articles. When platforms disseminating podcasts do not have transparent policies on taking down content, there is no guarantee that flagging a podcast for problematic content will contain its reach. Furthermore, since podcasts are in a nascent stage of popularity, platforms may not have the resources or funding to engage in extensive fact-checking or hire third party fact-checkers.

The emergence of ‘deepfakes’ or artfully doctored photos and videos has contributed to the flow of misinformation on social media as well. Lack of awareness regarding the existence and popularity of ‘deepfakes’ along with the difficulty in spotting manipulations in the footage exacerbates its ability to influence the target audience.

Social media companies are well aware that they are going up against determined actors with the capacity to generate creative solutions on the fly. One such example was observed by an American reporter on a chat channel, Discord. When a Twitter user complained about Twitter’s proactive measures in deleting accounts connected to voter suppression attempts, another user suggested the use of Snapchat filters on photos found online when creating a fake account to evade reverse image searches.

It does not help that certain challenges faced by social media companies have no immediate solutions. In its press releases, Facebook has highlighted the scarcity of professional fact-checkers worldwide, the time it takes for a complex news item to be scrutinized and the lack of meaningful data in local dialects to aid machine learning.

Furthermore, while solutions have been implemented by social media companies in good faith, they have been shown to remain unsuccessful in tackling the problem as a whole. A reporter for The Atlantic drew attention to a loophole in Facebook’s Ad Library authentication process, an otherwise effective dragnet in a sea of insidious advertising. By setting up a limited liability company to act as the publisher of the ad, special interest groups can obscure their identity and continue to sponsor ads on Facebook. The inability to predict users’ behavioural tendencies may also lead to the failure of the solution, such as in the case of WhatsApp where the labelling of forwarded messages may not encourage the recipient to question the legitimacy of the message if the recipient has faith in the credibility of the sender.

While scrutinizing the strategies offered by social media platforms and other intermediaries, it is important to keep in mind that the problem of ‘fake news’ is not a new phenomenon. The introduction of the printing press in the 15th century also unleashed a wave of ‘fake news’ regarding witches and religious fanaticism which would be printed alongside scientific discoveries. Thus, while social media may have amplified its reach – much like a microphone does in the hands of a speaker – it is ultimately the individual spewing vitriol that is the true culprit. The burden of generating solutions cannot be solely borne by the intermediaries.

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Is the Government’s Heart in the Right Place: Misplaced Solutions for an Insidious Problem

Unfortunately, as part of their contribution to curb the dissemination of ‘fake news’, the Government has made scarce headway. In April 2018, a directive was issued by the Ministry of Information and Broadcasting stating that the accreditation of journalists found to have generated or circulated ‘fake news’ would be suspended for a time period to be determined according to the frequency of violations and would be cancelled in case of a third violation. The guidelines were immediately withdrawn on the direction of the Prime Minister’s Office after the Government was heavily criticized by journalists and media bodies for attempting to muzzle the free press.

In December 2018, the Ministry of Electronics and Information Technology published the draft Information Technology [Intermediaries Guidelines (Amendment) Rules], 2018, which requires – inter alia – that intermediaries enable tracing of the origin of information and deploy automated tools to proactively identify and remove unlawful content. WhatsApp, a platform with end-to-end encryption, took a stand against breaking encryption and pointed to privacy and free speech concerns to justify their position.

As countries attempt to block the dissemination of ‘fake news’ on the internet and regulate the flow of information on social media platforms, it is imperative to ensure that overbroad definitions and strategies do not end up promoting political censorship.

China’s crackdown on ‘online rumours’ since 2013 is an example of the State controlling information flow. Not only must ‘rumours’ – including content undermining morality and the socialist system – be removed by social network operators, but also their publication could result in a jail term of 3 years for the creator. The licenses required by social media networks to operate in China may be held hostage if their interpretation of ‘rumours’ does not align with the Chinese authorities. This incentivizes overly cautious intermediaries to block or report content that seems ‘fake’ by the Government’s standards, thus leading to collateral censorship.

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‘What Is’ versus ‘What Could Have Been’: The Pitfalls of Election Campaigning  

The lack of significant engagement and progress on the ‘fake news’ and misinformation front is certainly a cause for concern as it points to a lack of political will.

The misuse of social media and messaging platforms by the ruling party as well as the Opposition has been widely reported by news outlets. BJP President allegedly told the party’s IT cell volunteers that the 32 lakh-strong WhatsApp groups allow the BJP to deliver any message to the public, even if it is fake. Last month, Facebook took down pages connected to the Congress IT cell as well as an IT firm behind the NaMo app for coordinated inauthentic behaviour and spam. WhatsApp’s head of communications has also interacted with political parties to highlight that WhatsApp is not a broadcast platform and accounts engaging in bulk messaging will be banned.

For political parties, there is much to gain by manipulating public opinion in a country where elections are tightly-contested along narrow margins, and election results have a long-lasting impact on the intricate fabric of national identity. Back in 2013, the Internet and Mobile Association of India (IAMAI) had gathered from a Social Media survey conducted in 35 Indian cities that the votes of only 3-4% of social media users could be swung. Of course, this was before the 2016 U.S. Presidential Elections which saw social media disinformation campaigns being executed with a renewed vigour.

As a starting point, political parties could have agreed to refrain from executing misinformation campaigns and instead, opted to encourage healthy debate based on verifiable facts to influence the electorate. Mud-slinging and propaganda campaigns are tactics that could potentially win elections. However, political candidates cannot ignore the lethal consequences of ‘fake news’ in India and carry on as if it is business as usual, especially when ‘fake news’ has become a life-and-death issue.

In the run-up to its federal elections in 2017, major political parties in Germany entered into a ‘gentleman’s agreement’ to disregard information leaked as a result of cyberattacks instead of exploiting it. An agreement by Indian political parties on the ethics that ought to govern social media use would have underscored the same spirit.

Instead of attempting to increase the burden on intermediaries, the Government could also have undertaken extensive digital literacy campaigns to build resilience against attempts at manipulation, be it domestic or foreign. The campaigns could have been structured to highlight the techniques by which false information is propagated to manipulate the psychology of the voter.

Social media platforms, political parties and the Election Commission form a trinity that shares the responsibility of protecting the authenticity of content informing a voter’s choice. While the degree of responsibility may be different, without collaboration, the goal will remain unachievable. The shortcomings of the political parties do not absolve the social media intermediaries of their responsibility. It took Twitter until half of polling had been completed to launch an anti-voter suppression feature on the microblogging platform. There have also been multiple instances of ‘fake news’ being taken down on other social media platforms but remaining in circulation on Twitter.

The impact of misinformation campaigns on the Lok Sabha elections will be uncovered only once the elections come to an end. The best-case scenario it that it has a negligible impact on the election result. The worst-case scenario? The influence is so pervasive that we will follow in the footsteps of the U.S. and take a minimum of two years to uncover its reach.

Regardless of what ultimately happens, perhaps there is one thing we can all agree on – not enough has been done to protect this “festival of democracy” from being manipulated.

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(Varsha is a researcher with the Centre for Communication Governance at National Law University Delhi.)

Khamosh! Is the Chatter of Surrogate Election Campaigns on Social Media Silencing Election Silence?

Nidhi Singh and Gunjan Chawla

(The piece was first published in the Leaflet)

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Section 126 of the Representation of People Act, 1951 (RPA) imposes a 48-hour ban preceding polling — on public meetings and processions in connection with the election, the display or propagation in a polling area of “any election matter” — which is intended or calculated to affect or influence the result of an election. The provision embodies a right to “election silence” for voters, which is under attack due to the use of social media for election campaigning and the technological challenges in enforcing this period of election silence. This article examines the regulatory challenges faced by the Election Commission of India (ECI) in its implementation.

Even though polling has now begun in multiple phases, voters remain submerged under a barrage of information virtually indistinguishable from propaganda disseminated by surrogate ads. All modes of dissemination ranging from social media, radio, television, pamphlets to ads on billboards and bus stops have been utilized to target, persuade and influence voters” opinions. In this context, a 48-hour period of quiet contemplation, free from election advertising to properly evaluate their options and make a well-reasoned and informed choice in the polls acquires renewed importance. Although some have argued for the removal of the election silence period altogether, we believe that the 48-hour period under S.126 is essential to the conduct of free and fair elections. A violation of the voters right to silence in close proximity to polling could vitiate the entire election process.

As we examine these issues in detail, we find that the challenges in enforcing restrictions on political speech are symptomatic of the larger problem of inadequate reporting and oversight of election expenditures incurred by political parties, candidates and their “supporters” or “well-wishers”. We argue that it should not be incumbent upon the voters to “dodge” propaganda on social media platforms by unsubscribing for two days. Article 324 entrusts the ECI with the responsibility of creating and maintaining an environment conducive to the conduct of free and fair elections; this includes the power to give appropriate directions to relevant stakeholders. The onus thus, falls on the ECI to be proactive in penalizing violations that interfere with the meaningful exercise of this right.

Enforcing Election Silence: Scope and Application

It is a settled point in law that the right to speech implies, the right to silence. It implies freedom, not to listen, and not to be forced to listen. This right enshrined in S. 126 has led the ECI to direct that the prohibitions under S. 126 apply mutatis mutandis to election matters, including advertisements, circulated on social media platforms (SMPs). However, for advertisements in the print media in the same time period, the ECI has directed that such ads may be published only if the contents of political advertisements are pre-certified by the Media Certification and Monitoring Committees (MCMC) at the state/district level, as the case may be. In this manner, the MCMC pre-certification requirements are the enforcement mechanisms employed by the ECI to prevent violations of S.126. Presumably, these requirements should apply to electronic and digital media as well to prevent the dissemination of “election matter” disguised as advertisements. Additionally, where such ads appear without obtaining such a pre-certification, the ECI can easily identify clear cases of violation.

However, despite these ECI directions that recognize that such ads at the eleventh hour could vitiate the entire election process,  and recommendations of the Sinha Committee, S. 126 has not yet been amended to combat the mushrooming of surrogate election campaigns on SMPs. Notably, the ECI has clarified that these restrictions do not apply to posts by individual users, as they cannot be treated as advertisements. However, it is relevant to point out that the ECI’s directions and clarifications seek to fill the lacunae in the law on an ad hoc basis. As on date, there is no Parliamentary legislation that makes S. 126 applicable to SMPs.

Silencing Surrogate Campaigns on Social Media

With the objective of preserving the period of election silence, the application of S.126 to SMPs raises 3 distinct issues – (1) how to distinguish between social media influencers (SMIs) posting individual opinions and SMIs acting as surrogate advertisers (2) the definition of “election matter” and the scope of what is prohibited (3) how to meaningfully implement this ban in tandem with multiphasic elections without simultaneously hindering the right to political speech for voter in non-polling constituencies.

Silencing Surrogate Advertisers or Social Media Influencers?

The phenomenon of SMIs blurs the line between individual users and what the ECI considers surrogate advertisers. In our previous post, we had pointed out that S.126 in its current form could be misused to target and silence “undesirable” political posts by SMIs.

Surrogate posts by SMIs in lieu of election advertisement escape the scrutiny of the ECI as they are not covered under the mandatory MCMC pre-certification requirements. These advertisements, masquerading as personal opinions are not adequately dealt with by any other provision, and thus should be brought under the umbrella of S.126 in tandem with more stringent reporting requirements for political parties and candidates regarding election expenditure. The ECI Compendium treats SMIs as just another individual user, and erroneously assumes that SMIs post content on their initiative. But that is not the case. The rise of the SMI phenomenon is premised on leveraging the influencer’s social capital in return for promotion of material akin to an advertisement. Where an SMI does not disclose whether a post is paid or not, there is little recourse for the ECI other than relying on community guidelines of SMPs that require distinguishing between paid and unpaid content.

The use of SMIs in election campaigns on social media is analogous to the use of “star campaigners“ in election rallies. Star campaigners are by definition candidates or members of political parties or at the very least, reported as having links with the party. SMIs can be said to be their virtual equivalent, whereby both phenomena use the popularity of one individual to draw large gatherings and influence the electorate in favor of a local candidate. ECI rules allow for this practice and lay down special requirements for the apportionment and reporting of the expenditure on star campaigners.

Any post by the official handles of parties and candidates in this period would be a clear violation. The question that remains is whether the ECI framework can silence the chatter of surrogate ads and SMIs on SMPs to enforce election silence in letter and spirit. Owing to their unique characteristics and widespread influence, SMIs should be treated as a distinct category that includes influential “well-wishers” and “supporters” of political parties and/or candidates on SMPs.

“Election Matter”: What is banned?

Election matter’ under S.126(3) includes any content intended or calculated to influence or affect the result of an election. The provision does not depend upon the description of the person posting the content but turns upon their intent in disseminating election related content in polling areas. This intent may be inferred from context, i.e. the number of followers or subscribers that can be attributed to the SMI, party or candidate. Knowledge of the likelihood that by virtue of their reach or social standing, they would illegally influence public opinion is indicative of the required intent but not sufficient. Surrogate ads and political posts by SMIs can both break election silence. However, the former escapes scrutiny while the latter is left unduly restricted, even when SMIs derive no pecuniary or other benefit from posting political content.

It is only SMI’s who have received pecuniary benefits or have been sponsored to post political content by third-parties that should be silenced under S.126. The issue of SMIs writing sponsored content disguised as personal opinions has been marred by controversy. This raises the broader question of clandestine funding of such posts, as well as the financial and political quid pro quo between surrogate advertisers and political parties/candidates. On the issue of expenses incurred on surrogate advertisements, the ECI identifies two categories of election expenses– legal and illegal. In doing so, it seems to have resigned itself to the reality that election campaigns do not and will not accurately report this category of expenses, if at all.

The “intent to influence” on the part of the person breaking election silence under S.126, should be inferred from a combination of factors. Due consideration and appropriate weightage should be given to the person’s social standing, political connections and reach, circulation of the election matter in question, its likelihood of influencing election outcomes, temporal proximity to the elections and pecuniary remuneration or any other material benefit derived from the exertion of such influence.

Multiphasic elections and the geographical scope: Where is it banned?

Difficulties in enforcing silence on SMPs are further compounded by the multiphasic natureof the elections. This links into the overarching difficulty in the territorial jurisdiction over the internet as a whole, and with phased elections as another factor, it would be nearly impossible to enforce the 48-hour election silence in isolated parts of the country.

In the case of social media, a post that goes live from the account of a person situated in Mumbai could conceivably reach voters in Mussoorie to influence opinions and election outcomes in unprecedented ways. With the use of cyber cells, and the strategic use of keywords, it is possible to create artificial trends and to manufacture virality for individual posts to influence election outcomes, all this while, escaping ECI and MCMC scrutiny.

However, the extension of the geographical scope of the ban beyond polling areas would be unduly restrictive of the rights of voters in other constituencies. At the same time, to remove the 48-hour period of election altogether would erode all voters’ right to silence that is crucial for the right to vote to be exercised meaningfully. Yet another option, although a procedural solution to a substantive problem, is to do away with multiphasic elections altogether or reduce the number of phases in which polling is conducted. This would avoid collaterally restricting free speech not prohibited under S. 126. The administrative costs and inconvenience of these procedural measures could be offset by the ECI adopting a more proactive role in taking suo moto cognizance of S. 126 violations by political parties, candidates and surrogate campaigns on SMPs and more importantly, imposing higher fines proportionate to the massive expenditures incurred on election campaigns, surrogate or otherwise.

A recent study by the Oxford Internet Institute indicates that India is among 48 countries most vulnerable to the manipulation of public opinion over social media platforms which emerge as a critical threat to public life. In the face of such obvious threats to the conduct of free and fair elections, the ECI, in considering recommendations of the Sinha Committee to amend S.126, must uphold and enforce the voters’ right to election silence on SMPs. This right would be reduced to a mere aspiration if the ECI fails to draw sharp lines to distinguish paid and unpaid content posted by surrogates in lieu of political parties and candidates.

Election Advertising on Social Media Platforms: Is the Election Commission Outsourcing Regulation to the Private Sector?

Nidhi Singh and Gunjan Chawla

(The piece was first published in the Leaflet)

As polling day approaches, political advertisements have become omnipresent–offline and online. Their influence cannot be denied. Broadly, it can be exerted in two ways – through the purchase of political ads on social media and through the expression of individual users on such platforms. Yet, these crucial categories of stakeholders who wield substantial influence on the opinion of voters through social media remains beyond the direct oversight of the Election Commission of India (ECI).

The ECI is currently grappling with unprecedented regulatory challenges engendered by the leveraging of social media platforms by political parties and candidates in election campaigns. The growing influence of these platforms has created new stakeholders in the electoral process that have the capacity and the reach to influence the opinions of far more voters than was possible by traditional media outlets.

In this piece, we examine the regulatory framework applicable to political ads on social media and its shortcomings.

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The Regulatory Framework

The ECI’s Model Code of Conduct (MCC) only regulates the conduct of political parties and candidates but not that of other stakeholders in the electoral process. The increasing role of social media in election campaigning necessitates that existing law, including S.126 of the Representation of Peoples Act, 1951 be amended to meet challenges in implementing the 48-hour period of election silence on social media platforms. The Sinha Committee’srecommendations to this effect are being considered by the ECI.

Consequently, the ECI recently directed that that any advertisement on social media sites in the 48-hour period before the polling must not promote or cause prejudice to any party or candidate, in the light of S.126. Candidates are required to submit details of their social media accounts at the time of filing nominations. Advertisements on social media are treated at par with those on traditional media outlets.

Upon invitation of the ECI last month, social media companies including Google, Facebook, and ShareChat under the aegis of the Internet and Mobile Association of India (IMAI) participated in the formulation of a Voluntary Code of Ethics for the General Elections 2019“to identify measures [they] can put in place to increase confidence in the electoral process”. The Code was presented to the ECI on 20 March 2019, underlining the participants’ commitment “to facilitating transparency in paid political advertisements, including utilising their pre-existing labels/disclosure technology for such advertisements.

The Voluntary Code provides for a notification-cum-enforcement mechanism “keeping in mind the principle of freedom of expression”. Participants have agreed to provide “a mechanism to relevant political advertisers to submit pre-certificates issued by the ECI and/or the Media Certification and Monitoring Committee (MCMC) in relation to election advertisements that feature names of political parties or candidates for the upcoming elections.” They have also agreed to expeditiously process advertisements that do not feature such a certification and are lawfully notified to them. To improve the response time, platforms have agreed to provide for direct liaison channels between these companies and the ECI for prompt resolution of any violations.

Political Content and Ghost Advertisements on Social Media Platforms

There is no statutory definition of ‘political advertisement’. However, different platforms have tried to identify what constitutes political content and/or advertising in the articulation of their political content policies. For instance, Twitter’s Political Campaigning Policy identifies three categories of ‘political campaigning ads’ – (1) ads purchased by a political party, (2) ads purchased by a candidate and (3) ads advocating for a clearly identified candidate or political party. Google in its policy on verification for election advertising in India goes a step further and identifies four categories of users who may register for publishing political advertisements – (1) political parties (2) businesses (3) non-profit organisations and (4) individuals. It broadens the scope by including all ads ‘which feature a political party’.

Such political ads, including those that fall under category (3) in Twitter’s policy and (4) in Google’s policy, but are not directly funded by the political party or candidate, are called surrogate or ghost advertisements. They are a cause for concern because their wide circulation runs the risk of misleading voters and potentially facilitating unethical and/or illegal payments to support election campaigns through advertising. The fact that political advertisements have generated over INR 10 crore in revenue for Facebook since February 2019 reflects the magnitude of this problem, and the enormous expenses that could potentially go unreported as election expenses.

Although the new ECI guidelines mandate the disclosure of expenditure on social media advertisements by political parties and candidates, they do not amply cover the ads that are purchased by ‘supporters’, or ‘well-wishers’ of the party who cannot directly be linked to either the party or the candidate. The MCC and the Voluntary Code do not regulate this area adequately, and the platforms themselves have stepped in to fill this lacuna using their company policies – by requiring paid ads to carry disclaimers, taking down ads that should carry these disclaimers but do not, maintaining public archives of these ads and the expenditure incurred by the purchaser.

et, these ‘soft-law’ measures are unable to effectively address the issues relating to election funding. The expenditure on ghost advertising pages cannot be accounted for by the ECI accurately under the present law. With the 2019 Lok Sabha elections shaping up to be the most expensive elections ever contested, these ghost advertisers are now a major factor in influencing election outcomes. This raises issues of transparency and accountability. The platforms have expressed willingness to self-regulate. However, the effectiveness of these voluntary enforcement measures by social media platforms in ensuring accountability is limited, due to electoral laws that are archaic and ill-equipped to impose adequate sanctions – civil, administrative or criminal.

Enforcing the Voluntary Code: Criminal Sanctions?

The MCC lacks statutory authority and therefore, does not provide any penalties for violation. The only legal recourse for the violation of essential electoral ethics can be through prosecution, if the conduct in question violates a penal statute. Similarly, the Voluntary Code is also an instrument which relies upon self-regulation by stakeholders for implementation.

The criminal provision relating to election advertising on behalf of candidates without their authorisation can be found in S.171H of the Indian Penal Code (IPC), which imposes a nominal fine of INR 500 as punishment. Further it provides that such authorisation may be obtained after the fact, only if the expenses incurred do not exceed INR 10.

In contrast to the paltry fine prescribed, the expenditure of the top ten Facebook pages for political advertisement for the months of February and March total to INR 6,13,24,689. Of these pages, while one is registered to the Bharatiya Janata Party (BJP) and another to the Biju Janata Dal (BJD), the others are registered to private entities and four of these 10 pages were run without disclaimers stating they were political advertisements.

Penalties prescribed under the IPC are grossly insufficient to deal with the magnitude of challenges presented by the reach of ghost advertisers. At the same time, the application of S.126 to social media could potentially expose individual users, especially social media influencers posting paid content, to criminal liability.

Until S.126 is amended in consonance with the recommendations of the Sinha Committee report, online political advertisements could arguably fall under S.126(1)(b) which specifically prohibits “the display of any election matter by means of cinematograph, television or other similar apparatus.” (emphasis added) S.126(3) clarifies that “election matter” means “any matter intended or calculated to influence or affect the result of an election”. This definition does not depend entirely on the content of the ad, and includes an element of mens rea requiring proof of intent to influence or affect the result of an election. Similarly, the expression “other similar apparatus” is too vague to indicate to an average voter, what conduct is permitted on social media platforms in the 48-hour period. A sweeping application of S.126 to social media platforms, which prescribes a punishment of two years’ imprisonment and fine, could severely jeopardise the individual user’s right to freely express their political opinions online during this time.

Curious Anomaly

A perusal of the MCMC’s pre-verification requirements for political advertisements reveals a curious anomaly. Anyone other than a political party or candidate applying for a certificate for advertisement is required to sign a solemn declaration that the advertisement is not intended for the benefit of any political party or candidate and that the advertisement has not been sponsored, commissioned or paid for by any political party or candidate. This has two possible implications.

Firstly, the declaration acts as an immunity blanket for third party political advertisers, protecting them from prosecution under S.126 by legally excising the element of ‘intent to influence’ that is inherent in the very act of publishing a political advertisement on social media.

Secondly, this declaration conflicts with the definitions of political advertisement formulated by social media platforms. In this regard, the Voluntary Code bridges a crucial gap in the regulatory framework by nurturing an organic, symbiotic relationship with the MCC, while ceding to its primacy. Such an approach enables us to effectively use the categorisations of political advertisers by social media companies as an interpretative guide to limit the scope of application of S.126 to target violations by ghost advertising, but refrain from targeting political speech of individual users.

Given the gaping loopholes in the legal framework to ensure free and fair elections by regulating and monitoring election advertisements, the Voluntary Code is a welcome step towards ensuring transparency and accountability in the elections. It now falls on the ECI to provide a uniform definition of ‘political advertisements’. However, social media influencers comprise a unique category within individual users and present a unique set of challenges, which needs to be examined further as a distinct issue.

Securing Electoral Infrastructure: How Alert is India’s Election Chowkidaar?

Varsha Rao

With the publication of Special Counsel Robert Mueller’s much-awaited report on Russian interference in the United States Presidential Elections of 2016, the threat of hacking and misinformation campaigns to influence elections is taking centre-stage yet again. Closer to home, the discussion has become more pertinent than ever before. In a democratic process of gigantic proportions, 900 million Indians across 543 constituencies are expected to cast their vote in 7 phases to elect a Government for the next five years.

The gravity and significance of the ongoing General Elections to the Lok Sabha thus begs the question – how susceptible is the world’s largest democracy to cyber interference?

Interfering in an election in the digital age involves a two-pronged attack – firstly, by influencing the political inclination of the electorate via misinformation campaigns on social media platforms, and secondly, by manipulating the electoral infrastructure itself. This article will focus on the latter, more specifically, the infrastructure and processes administered by the Election Commission of India.

Voter Registration Databases and Election Management Systems (EMS)

Unfettered access to voter registration databases arms malicious actors with the ability to alter or delete the information of registered voters, thereby impacting who casts a vote on polling day. Voter information can be deleted from the electoral rolls to accomplish en-masse voter suppression and disenfranchisement along communal lines in an already polarized voting environment. The connectivity of voter databases to various networks for real-time inputs and updates make them highly susceptible to cyberattacks.

The manipulation of election management systems (EMS) can have an even wider impact on the electoral process. Gaining access to the Election Commission’s network would be akin to creating a peephole into highly confidential data ranging from deployment of security forces to the tracking of voting machines.

Election Commission staff can be targeted via phishing attacks in a manner similar to the cyberattacks executed during the 2016 U.S. Elections. Classified documents of the U.S. National Security Agency (NSA) as well as Special Counsel Robert Mueller’s report confirm that hackers affiliated with the Russian government targeted an American software vendor enlisted with maintaining and verifying voter rolls. Thereafter, posing as the vendor, the hackers successfully tricked government officials into downloading malicious software that creates a backdoor into the infected computer.

The Election Commission has made proactive attempts to improve the cyber hygiene of its officials by conducting national and regional cybersecurity workshops and issuing instructions regarding vigilance against phishing attacks. Furthermore, Cyber Security Regulations have been issued to regulate the officers’ online behaviour. A Chief Information Security Officer (CISO) was appointed in December 2017 at the central level and Cybersecurity Nodal Officers have been appointed in at the State-level.

The Election Commission has also addressed spoofing attempts by taking down imposter apps from mobile phone app distribution platforms. According to newspaper reports, the Election Commission has carried out a third-party security audit of all poll-related applications and websites, and enabled Secure Sockets Layer (SSL) on the Election Commission website to encrypt information exchanged between a user’s browser and the website.

There is no doubt that cybersecurity risks are constantly evolving, and it remains imperative for the Election Commission to conduct systematic and periodic vulnerability analyses in collaboration with security auditors to update Election Commission systems and software.

Electronic Voting Machines

An EVM is made up of two units – a Control Unit and a Balloting Unit, linked by a five-metre long cable. The Presiding/Polling Officer uses the Control Unit to release a ballot. This allows the voter inside the voting compartment to cast their vote on the Balloting Unit by pressing the button labelled with the candidate name and party symbol of their choice. An individual cannot vote multiple times as the machine is locked once a vote is recorded, and can be enabled again only when the Presiding Officer releases the ballot by pressing the relevant button on the Control Unit.

While the Election Commission has reiterated time and again that EVMs are tamper-proof, the machines have come under criticism from security researchers and computer scientists. To defend the integrity of EVMs, the Election Commission frequently cites the simplistic design of the machine. The EVMs are battery-operated in order to be functional in parts of the country that do not have electricity access. Additionally, they are not connected to any online networks nor do they contain wireless technology, thereby mitigating the possibility of remote software-based attacks. While these factors certainly reduce the potential for EVM hacking, they do not justify the Election Commission’s unshakeable belief that EVMs are infallible.

The most explosive demonstration of EVMs being susceptible to hacking attempts was carried out all the way back in 2010 by a Hyderabad-based technologist, Hari K. Prasad in collaboration with J. Alex Halderman, an American computer science professor and Rop Gonggrijp, a hacker who campaigned to decertify EVMs in the Netherlands.

Various personnel interact with the EVM, right from the beginning of the supply chain to the officials and staff responsible for its storage and security before and after polling. In a paper published by Hari Prasad and his team, two methods of physical tampering were tested and demonstrated. The first method is to replace the Control Unit’s display board which is used during the counting process to show the number of votes received by candidates. The dishonest display board, on receiving instructions via Bluetooth, would have the ability to intercept the vote totals and display fraudulent totals by adjusting the percentage of votes received by each candidate. The second method involves attaching a temporary clip-on device to the memory chip inside the EVM to execute a vote-stealing program in favour of a selected candidate.

The physical security of the EVM takes on manifold importance in light of the above. The Election Commission has strict procedures in place to transport and store the machines, employing GPS and surveillance technology. Storage spaces known as ‘strong rooms’ having a single-entry point, double lock system and CCTV coverage are utilised. However, there have been frequent news reports about cases of EVM theft, strong room blackouts as well as unauthorized access.

The Election Commission has argued that since mock polls are conducted before official polling commences, any malfunctions or tampering attempts will be detected before it can impact the electoral process. However, this countermeasure does not address the possibility of attackers programming their tampering devices to kick into gear only after the EVM has recorded a set number of votes, thereby skipping over any mock poll entries.

Furthermore, while the source-coding or the writing of the software onto the EVM chip is done by Indian public sector undertakings (PSUs), the microchips themselves are imported from the United States and Japan. Since the EVM chip is a one-time programmable chip, it can neither be read, copied nor overwritten. The benefit of this feature is that they cannot be re-programmed by malicious actors. However, the masking also has a downside – in the event that any vulnerabilities are inserted into the chip or source code during the movement of the machine components along the supply chain, it may not be possible to detect the vulnerability.

Introducing a Voter Verifiable Paper Audit Trail (VVPAT) system was widely touted as second layer of verification to catch any EVM malfunctions. It was only at the insistence of the Supreme Court that the Election Commission agreed to roll out EVMs with VVPATs for the ongoing General Elections.

When a vote is cast, the battery-operated VVPAT system prints a slip containing the serial number, name and symbol of the candidate, which is available for viewing through a transparent window for a few seconds. Following that, the slip falls into a sealed drop box.

An effective VVPAT audit is an important solution to the vulnerabilities plaguing EVMs. The Election Commission’s procedure for VVPAT audit involved counting of VVPAT slips in one polling booth per Assembly segment for the General Elections. The Supreme Court had to intervene again – at the insistence of Opposition parties – for the Election Commission to increase the audit from one EVM to five per Assembly segment. The Court did not accept the Opposition parties’ plea to have 33-50% votes verified.

The call for extensive VVPAT slip audits has been an ongoing battle, with bureaucrats, politicians and experts on the frontlines. Former bureaucrats had written to the Election Commission to increase the audit sample size to 50 machines per 1 lakh booths instead of 5-6 machines. A former Chief Election Commissioner has proposed that the two runners-up in a constituency may be the given the option to randomly select two EVMs each for a VVPAT slip audit – a procedure similar to the Umpire Decision Review System in cricket. Another proposed method known as the Risk Limiting Audit requires the ballots to be audited until a pre-determined statistical threshold of confidence is met.

The resistance displayed by the Election Commission to introducing VVPAT slip audits as well as expanding the sample size of the audits is alarming. The Chief Justice of India even reprimanded the Election Commission for “insulat[ing] itself from suggestion for improvement”. Unsurprisingly, the Court had to reassure the Election Commission that in making recommendations to improve the electoral process, it was not casting aspersions on the functioning of the body.

While it is commendable that the Election Commission has embraced the implementation of technology like EVMs in the electoral process, it is becoming clear that it has not incorporated the tradition of vulnerability research and software patching to prevent further exploits. Security researchers must be provided time and unfettered access to test the efficacy and security offered by EVMs. Hacking challenges should not be restricted to EVM replicas or superficial tinkering on the external body of the EVM.

It is understandable for an authority like the Election Commission to focus on protecting the integrity of the institution as well as the election infrastructure. However, pointing out flaws in the EVM technology is not equivalent to an attack on the institution of the Election Commission. While the entire process of elections is built around trust – be it trust in the method of casting votes or trust in the authority tabulating the votes – it is the responsibility of those in whom the trust of the electorate is reposed to ensure transparency at every stage and welcome public scrutiny, especially when new and complex technology is being employed.

(Varsha is a researcher with the Centre for Communication Governance at National Law University Delhi.)

Mission Shakti: One month after the completion of India’s first ASAT

Tomorrow marks one month of the successful completion of Mission Shakti- India’s first Anti-Satellite (ASAT) testing. The test has received mixed reactions from the international community. In this post, we address the three main concerns arising from the ASAT test.

First, we examine the technological aspects of ASAT weapons and their significance. Second, we examine the impact of space debris that may potentially be generated by such tests. Third, we examine the outcome of this test on the future of regulation of outer space.

What is an Anti-Satellite Missile?

An Anti-Satellite Missile or the ASAT is a space weapon which destroys or interferes with satellites, impeding a nation’s ability to collect intelligence or direct attacks. Such a weapon can be air, land, or sea-based. While it is estimated that several nations may possess this technology, only four countries – USA, Russia, China and India have demonstrated their ASAT capabilities successfully.

ASATs can come in various forms since as several different mechanisms can be used to target or otherwise interfere with a satellite. India’s ASAT employed the kinetic-kill model, whereby an object in space or on the ground is sent to collide with an orbiting satellite, destroying both object and target with the energy of the crash.

India, in testing its new ASAT capabilities shot down a pre-determined targeted Low Orbit Satellite which was orbiting at about 300 km from the Earth. This puts the satellite in the lower thermosphere or the ionosphere of the Earth’s atmosphere. For reference, we can consider that the International Space Station usually orbits at a radius of about 350 to 400 km. This was achieved using the DRDO’s Ballistic Missile Defence interceptor and demonstrates India’s ability to intercept satellites through the use of indigenously developed technology.

In the FAQ’s uploaded by the Ministry of External Affairs shortly after the test, the Government clarified that the technology has been developed to protect and preserve domestic assets and reaffirmed its intention to use it only for protection, not as an offensive measure. The main objective identified by the FAQ’s was to demonstrate the capability to safeguard national assets and interests in outer space.

India has undertaken 102 spacecraft missions consisting of communication satellites, earth observation satellites, experimental satellites, navigation satellites, apart from satellites meant for scientific research and exploration, academic studies and other small satellites. The space programme now forms a critical component of India’s security, economic and social infrastructure, and is recognized as a significant commercial investment by the Government of India. With the expansion of the space programme, India has now emerged as one of the frontrunners in the ‘Space Market’.

Although four states have declared themselves as having ASAT’s, this technology has never been used against another state. In most cases, states have used it to dismantle their own satellites for strategic or technical reasons. Many describe it as a posturing tool, rather than an arms race for space weapons. The range of this technology is accurate against low earth satellites, which are mostly communications satellites, such as those used for telecommunication, earth observation satellites, the Hubble telescope etc, but does not necessarily cover satellites in Medium and High Orbit zones which contain satellites which have military and strategic uses.

Space Debris

One of the major concerns relating to the use of such weapons is the generation of space debris that could linger in outer space for many years. The test was followed by international disapproval by both states and scientific communities alike over possible concerns due to space debris. Some bodies have since called upon an absolute ban upon the testing of any space weapons. However, political will to introduce such a ban appears lacking.

Another notable response to the test was a call from some members of the industry to boycott India’s Polar Satellite Launch Vehicle. Launching secondary payloads on the PSLV generates significant income for India. Those calling for a boycott of India’s PSLV have taken the view that the creation of space debris in low Earth orbit through anti-satellite testing activities by India could harm the business models of PSLV’s launch customers. A boycott of this nature could significantly hurt India’s interests. However, no concrete measures were taken by any companies and most smaller companies refused to comment.

In response to concerns about orbital space debris generated by Mission Shakti, the Pentagon announced that the US Military’s Strategic Command was tracking 250 pieces of space debris generated by the missile test and would issue close-approach notifications as required, until the debris enters the Earth’s atmosphere. Whereas, the MEA had stated that any debris generated would burn up ‘in a few weeks’ in the atmosphere before contact and thus pose minimal harm. The original estimate provided by ISRO was 45 days, however new reports state that some pieces could take between 1-2 years to fall back to earth.

This is in contrast to the 14,000 pieces of space debris that had been generated by China’s ASAT test in 2007, which hit one Russian satellite and potentially endangered others in the vicinity, provoking strong reactions from the international community.

International Law and the Militarization of Outer Space

This test highlights a lacuna in the present international legal framework that governs outer space. The Outer Space Treaty of 1967 only forbids the deployment of weapons of mass destruction in outer space. This creates a grey area in this framework that operationalizes the principle of peaceful uses of outer space. ASAT weapons are neither considered WMDs, nor are they otherwise explicitly prohibited by treaty law. The lack of international consensus on the issue has enabled nations part of the so-called ‘elite space club’ to develop and retain such technology without being censured or sanctioned. Efforts to build such a consensus also remain stagnated.

One of the prime examples of stagnated International Law in space is the Prevention of an Arms Race in Space (PAROS) treaty, which was originally proposed by China and Russia. The treaty has categorically been opposed by the US from the beginning of the negotiations in 1985 to the first draft, which was submitted by Russia in 2008. In 2017 UNGA resolution 72/250 established a group of governmental experts (GGE) to “consider and make recommendations on substantial elements of PAROS”.  The GGE met for the second time in March 2019.

A promising effort was put forward in the European Union’s proposed International Code of Conduct for Outer Space Activities — this sought to address the present challenges posed by the growing availability of Anti-Satellite technology and required states to resolve to not damage or destroy any satellite except for reasons of safety, self-defence or to avoid debris production. An Anti-Satellite test would have been prohibited under this regime. However, the draft code was a non- binding, voluntary international instrument which aimed at building norms of responsible behaviour in space activities. Additionally, the discussion of the draft in 2015 was further complicated by procedural complications and the continued rejection of the code by the Russia and China. Barring a revival by a powerful stakeholder, like the US, the draft code currently appears to be dead.

Current Concerns

While this test raised several difficult questions about the framework of Space Regulation, it does have the effect of putting the issue of space disarmament back onto the drawing board. With growing international coverage on the issues relating to the regulation of space, this may be a good time for the international community to try and frame updated rules to operationalize the principle of ‘peaceful use of outer space’ and prevent an arms race in outer space. With India’s de facto inclusion into the ‘elite club’ of ASAT capable countries, it could significantly contribute to the conversation as well.

With India’s growing presence in the field of space exploration, this would be an excellent opportunity to frame national guidelines in relation to the use and regulation of outer space. This would have two advantages; firstly, it would allow the state to regulate the use of ‘space technology’ as an up and coming sector which is of interest not only because of potential national security concerns but also as a commercial avenue for generation of revenue. Secondly, this would allow India to articulate norms which can serve as evidence of State practice and may later influence the formation of international law on the subject.

A lot has changed in the last decade, with increased commercial investments into outer space in the form of satellites, it is possible that this test may prove to be a wake-up call rather than a panic alarm, urging states and commercial stakeholders to come together to form a sustainable and effective form of space regulation.