While evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (NDHE) – a digital system for the generation, use, and ‘frictionless’ circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure”. Seeing the NDHE as a data infrastructure allows us to visibilise the regulatory effects of the NDHE, i.e., the ways in which the NDHE creates “communities of the affected” whose access to public health is now mediated by affordances granted by the NDHE. This, in turn, shapes law and regulation of the NDHE, where legal frameworks for (health) data protection are not weakened by accident, but weakened by design. At the same time, the regulatory effects of the NDHE can and should be regulated by law, by channeling law’s commitment to the creation of healthy public spheres to ensure the vitality of a democracy. Accordingly, this paper makes three contributions – one, it provides a brief overview of the political economy and the regulatory effects of the NDHE; two, it analyses the ways in which the regulatory effects of the NDHE shape legal frameworks for health data to disempower individuals and communities who are the generators of this data; and three, it outlines research and policy suggestions for how the law can intervene in limiting the exclusionary data-politics of the NDHE.
This paper originated in the seminar Global Data Law II: Ordering and Power. It will be published by the National Law School of India University’s Socio-Legal Review, Vol 20, Issue 1 (2024).
