Why in the News?
The Union government's move to mandate pre-installation of the Sanchar Saathi app on mobile phones (later withdrawn) triggered concerns regarding consent, surveillance, data misuse and state overreach.
What is Digital Constitutionalism?
- It refers to the application of constitutional principles such as liberty, dignity, equality and no-arbitrariness, privacy, accountability and rule of law to the digital domain including data collection, artificial intelligence, algorithms and surveillance systems.
- It seeks to ensure that digital power is subjected to the same constitutional limits as traditional state authority.
Reasons for emergence of Digital Constitutionalism
- Expansion of Digital State Power: Modern states increasingly exercise authority through digital infrastructure such as predictive policing, facial recognition, mass data collection, etc.
- Unchecked digital state power risks violating Article 21 (privacy and dignity) and Article 14 (equality before law and equal protection of law), necessitating constitutional limits in cyberspace.
- Rise of Big-Techs as Quasi-Sovereign Powers: Private digital platforms now perform functions traditionally associated with the State such as Regulating speech (content moderation, de-platforming), Governing economic access (app stores, gig platforms), Controlling information flows (search engines, social media), etc.
- These platforms operate via opaque algorithms without democratic accountability, creating a form of private constitutional order.
- When private power affects public rights at scale, constitutional principles must constrain not just the State but also dominant digital intermediaries.
- Threats to Democratic processes: Digital platforms significantly influence public opinion, elections, and political participation through misinformation, deepfakes, and micro-targeted political ads distort electoral choices.
- Further, echo chambers and algorithm-driven polarization weaken deliberative democracy, necessitating protection of digital foundations of the constitutional democracy.
- Judicial recognition of Digital Rights: Courts globally, including in India, have begun to recognize that constitutional protections extend to digital spaces.
- E.g., In Anuradha Bhasin case (2020) Supreme Court acknowledged that Article 19(1)(a) of the Indian Constitution protects freedom of speech and expression through the medium of internet.
Challenges to Constitutional Principles in the Digital Space
- Unchecked Surveillance: Silent and continuous monitoring through metadata, location tracking, biometrics and facial recognition creates a chilling effect on free speech and dissent.
- Erosion of Right to Privacy: Excessive data collection and storage with consent reduced to routine "click-through" formalities erodes meaningful individual control over personal information.
- Algorithmic Opacity: Automated decision-making in welfare, policing, employment and content moderation without transparency, explanation or appeal mechanisms violates the principles of natural justice.
- Concentration of Digital Power: Concentration of digital power in state agencies, law enforcement bodies and private technology corporations reduces citizens to passive data subjects rather than active rights-holders.
- Bias and Discrimination: AI and facial recognition systems often exhibit gender, racial and social biases leading to exclusion and wrongful targeting of vulnerable groups.
- Weak Oversight Mechanisms: Absence of independent audit and judicial control over surveillance and algorithms.
Existing Legal Mechanism in India to Safeguard Rights in Digital Space
- Justice K.S. Puttaswamy Case (2017): Recognised the Right to Privacy as a Fundamental Right under Article 21.
- Digital Personal Data Protection (DPDP) Act, 2023: Provides a statutory framework regulating the collection, processing and storage of personal data, defining rights and duties of data principals and fiduciaries.
- Information Technology Act, 2000: Regulates digital platforms, cybercrime and intermediary liability.
- Sector-specific Rules & Policies: CERT-In directions for cybersecurity, IT Rules 2021 for social media intermediaries and digital platforms, telecom and fintech regulations for communication and financial data.
- Net Neutrality Regulations: Based on TRAI's recommendations, Department of Telecommunication amended the licensing norms of the Telecom Operators to prohibit discriminatory treatment of the content over internet, except for some reasonable traffic management.
- Net neutrality refers to the principle that all internet data must be treated equally, without discrimination, blocking, throttling, or paid prioritisation by Internet Service Providers (ISPs).
Global approaches to Digital Constitutionalism
- European Union: Represents the most advanced form of digital constitutionalism, treating digital rights as extensions of fundamental rights under General Digital Protection Regulations (2018), Digital Services Act, etc.
- United States: Prioritises liberty over regulation shaped by strong protection of freedom of speech, market-driven models, and anti-trust provisions.
- UN and International Forums: UN sought to extend human rights law to digital spaces, with an emphasis on freedom of expression, privacy, and internet access.
Way Forward
- Constitutionalising Digital Governance: Clearly articulate digital rights (privacy, data access, algorithmic fairness) in law to reflect Puttaswamy case' proportionality and reasoned justification standards.
- Independent Oversight: Ensure autonomy of the Data Protection Board, to be constituted under the DPDP Act, and should be made accountable to the Parliament.
- Regulated Surveillance: Surveillance should be limited to exceptional national security situations, subject to mandatory judicial warrants and proportionality tests.
- Algorithmic Accountability: Mandate algorithmic impact assessments for high-risk automated systems, especially in public services and disclose rationale and recourse mechanisms where automated decisions affect rights (e.g., denial of service, credit decisions).
- Consultative and inclusive law-making: Institutionalise wide public consultations with civil society, academia, technologists, and marginalised groups to enable meaningful engagement.
- Digital Literacy: Empower citizens to understand, question and challenge digital authority.
- Global cooperation: Participate in international standards bodies (e.g., OECD, GPAI) to shape rights-based digital governance norms and cooperate on cross-border data flows with safeguards that respect sovereignty and privacy.
Conclusion
Digital constitutionalism has emerged not merely due to technological change, but because powers of traditional actors - state, market, and civil society, has migrated into digital architectures without adequate constitutional restraints. As governance increasingly relies on data, algorithms and surveillance, constitutional values of liberty, privacy, equality and accountability must act as firm guardrails. Embedding these principles into digital systems, supported by strong oversight, transparent technologies and informed citizens is crucial to ensure that technological progress strengthens democracy rather than undermines it.
