The Rise of Digital Constitutional Challenges

A GROWING SHADOW OVER DIGITAL CONSTITUTIONALISM

Why in the News?

• The Union government withdrew its directive mandating pre-installation of the ‘Sanchar Saathi’ app on all mobile phones from 2026.
• The rollback came within 48 hours after strong opposition from stakeholders over data privacy, consent, surveillance, and unlimited data storage.
• The issue gained global attention after Reuters reported that Apple refused to comply with the order.
• Concerns emerged that forcing installation could lead to state overreach and potential misuse of personal data.
• The government cited rising cybercrime cases (from 15.9 lakh in 2023 to 20.4 lakh in 2024) as justification for the app.
• The episode has reignited debate on digital rights, constitutional safeguards, and the need for digital constitutionalism.

More about News

• Foreign technology companies may have played an indirect role in the rollback, as the government cannot risk losing Apple’s large-scale manufacturing presence in India.
• The mandatory app installation was projected as a public safety measure to assist users and law enforcement.
• However, the decision triggered serious concerns over surveillance, unchecked state power, and potential data misuse.
• The controversy highlights the growing tension between digital governance and constitutional freedoms.
• It underlines the urgent need for a framework of digital constitutionalism to protect citizens’ rights in the age of technology.

What Digital Constitutionalism Entails

• Digital constitutionalism refers to the extension of core constitutional values—liberty, dignity, equality, non-arbitrariness, accountability, and the rule of law—into the digital sphere.
• These principles are increasingly under threat due to the dominance of data collection, artificial intelligence (AI), and surveillance technologies.
• Governance is becoming invisible and algorithm-driven, through tools such as biometric databases and predictive algorithms.
• In the absence of strong constitutional safeguards, individuals are vulnerable to the abuse of authority and arbitrary state action.
• Daily life is deeply shaped by digital governance, including KYC verification, welfare delivery, job recruitment, healthcare records, and online political expression.
• Most of these systems operate without meaningful public awareness, consent, or democratic oversight.
• Power is increasingly concentrated in the hands of technology designers, law enforcement agencies, and private corporations.
• Citizens are gradually reduced to passive data subjects instead of active rights-holders, undermining democratic ideals.
• Surveillance has evolved into a silent, continuous, and sophisticated process through metadata collection, location tracking, biometric identification, behavioral profiling, and predictive analytics.
• Such constant surveillance chills free speech, discourages dissent, and weakens democratic participation.
• Self-censorship is becoming normalized as people modify behavior due to the fear of being monitored.
• The right to privacy was declared a fundamental right by the Supreme Court in the Justice K.S. Puttaswamy (2017) judgment.
• The Digital Personal Data Protection Act, 2023, was enacted to protect citizens’ data, but it suffers from serious limitations.
• The law provides broad exemptions to the government, lacks strong independent oversight, and offers weak remedies to individuals.
• It prioritizes administrative convenience and national security over individual autonomy and dignity, making it an inadequate instrument of constitutional protection in the digital age.

Efficiency but Less Personal Control

• Datafication has penetrated every sector—banking uses behavioral analytics, healthcare relies on digital records, education runs on online platforms, and social media constantly profiles users.
• While these systems improve efficiency and convenience, they significantly reduce individual control over personal information.
• Consent has become a mere “click-through” formality, rather than a meaningful, informed, and voluntary choice.
• The principle of purpose limitation is frequently ignored, allowing data to be reused beyond its original intent.
• As a result, privacy loss is no longer limited to isolated breaches but reflects a gradual erosion of personal autonomy, identity, and decision-making power.
• Surveillance technologies have become embedded in public spaces through CCTV cameras, biometric scanners, and digital identifiers.
• Facial recognition technology has been restricted or banned in some U.S. cities due to concerns over racial bias, mass surveillance, and wrongful identification.
• Misidentification by facial recognition systems has led to wrongful arrests in several countries.
• Digi Yatra data in India is not directly controlled by the government, raising further accountability concerns.
• Research shows that such systems often discriminate against people of color, women, and minority groups.
• Thus, instead of preventing crime, facial recognition often reinforces discrimination, similar to concerns raised over Sanchar Saathi.
• Despite the rapid expansion of these technologies in India, there is no comprehensive surveillance law, and judicial oversight remains weak.
• Transparency is minimal, creating a dangerous imbalance between state authority and institutional responsibility.
• Unchecked surveillance risks transforming a democratic state into a ‘Big Brother’ monitoring state.
• Algorithms increasingly decide access to welfare, policing profiles, content moderation, employment, and loan approvals.
• These systems function as ‘black boxes’, with opaque decision-making processes.
• When a benefit is denied or a person is flagged, there is often no explanation and no effective appeal mechanism.
• Algorithmic failures have excluded deserving families from welfare schemes and silenced legitimate voices through automated moderation.
• Ultimately, such technologies can quietly violate constitutional principles of equality, reasonableness, and natural justice.

An Inadequate Legal System

• India’s existing digital legal framework, including the Information Technology Act, 2000, and emerging tech laws, is primarily focused on regulating platforms and controlling technology, not on protecting citizens’ liberties and privacy.
• Judicial guidelines on digital rights exist, but they remain fragmented, interim, and insufficient.
• There is no independent institutional mechanism to audit or review high-risk algorithms and surveillance orders.
• For most citizens, especially the tech-aware, legal remedies are slow, costly, and difficult to access.
• At the same time, the larger population remains unaware of the dangers of digital surveillance and data misuse.
• This situation creates a constitutional paradox where rights, freedoms, and state power are increasingly shaped by digital systems, just like traditional institutions.
• However, these digital systems are not subjected to constitutional discipline, creating a serious democratic imbalance.
• Such an incongruity weakens constitutional morality and undermines democracy.
• Digital constitutionalism must go beyond theory and establish strong institutional safeguards.
• An independent Digital Rights Commission should be created to investigate violations and ensure accountability.
• Surveillance must be legally restricted, permitted only in grave national security situations, and governed strictly by the principles of necessity and proportionality.
• Judicial warrants, parliamentary scrutiny, and mandatory public transparency reports should be made compulsory.
• High-risk AI systems must be regularly audited and tested for bias.
• Citizens must be granted the right to explanation and the right to appeal against automated decisions.
• Strict purpose limitation, minimal data collection, and stringent punishment for data misuse should be legally enforced.
• Digital literacy should be recognized as a form of constitutional empowerment, enabling citizens to question, challenge, and resist digital power structures.
• Without awareness, rights remain only theoretical and ineffective in practice.
• Digital technologies now shape citizenship, access to services, political participation, and personal identity.
• As governance becomes increasingly data-driven, constitutional values must guide this transformation.
• Freedom, equality, and privacy must not become silent casualties of efficiency.
• Digital constitutionalism is thus not merely a legal reform, but a defense of democracy in the algorithmic age.
• Its core promise is to ensure that technology remains a servant of the people, not an invisible authoritarian master.

Way Forward

• Enact a comprehensive Digital Rights Law that places fundamental rights at the center of digital governance, not merely platform regulation.
• Establish an independent Digital Rights Commission with powers to investigate, audit algorithms, hear complaints, and impose penalties.
• Impose strict legal limits on surveillance, allowing it only under judicial warrant, necessity, and proportionality.
• Make parliamentary oversight and public transparency reports mandatory for all large-scale surveillance programs.
• Introduce algorithmic accountability laws requiring: ○ Regular bias testing and audits ○ Explainability of automated decisions ○ A statutory right to appeal against algorithmic outcomes
• Strengthen the Digital Personal Data Protection Act by: ○ Removing blanket government exemptions ○ Ensuring independent regulatory oversight ○ Providing strong compensation and redress mechanisms for individuals
• Enforce purpose limitation, minimal data collection, and time-bound data storage across public and private sectors.
• Impose strict criminal liability for data misuse and unlawful surveillance.
• Recognize digital literacy as a constitutional empowerment tool through large-scale public awareness campaigns.
• Ensure judicial and police capacity building in cyber law, AI risks, and digital rights.
• Promote ethical AI frameworks aligned with constitutional values of equity, dignity, and non-discrimination.
• Encourage citizen participation in digital law-making through consultations and open audits.

To address the growing concerns over digital rights and governance, it is crucial to implement a robust framework of digital constitutionalism. This framework should include a comprehensive Digital Rights Law, which would serve as the digital equivalent of environmental clearance for new technologies and platforms. Such a law would require a thorough digital impact assessment before the implementation of any new digital system, much like the environmental impact assessment process.

Furthermore, the establishment of a Digital Regulation Zone could help protect sensitive digital ecosystems from unchecked exploitation, similar to how the Coastal Regulation Zone safeguards coastal areas. The implementation of a “data misuser pays principle” would hold entities accountable for data breaches and misuse, analogous to the polluter pays principle in environmental law.

To ensure proactive protection of digital rights, the precautionary principle should be applied in the digital realm. This would mean taking preventive action against potential digital harms, even in the absence of complete scientific certainty about their impacts. The goal should be to create a surveillance-free digital environment, akin to the concept of a pollution-free environment in ecological contexts.

In cases where digital rights violations have already occurred, there may be a need for retrospective or ex post facto digital clearances. This approach would allow for the regularization of existing digital systems that may not have undergone proper scrutiny at their inception, provided they meet certain stringent criteria and compensate for any past harms.

The development of robust digital jurisprudence is essential to address the unique challenges posed by the digital age. This would involve the evolution of legal principles and precedents specifically tailored to digital rights and governance issues. Additionally, fostering digital democracy through increased citizen participation in digital policy-making processes is crucial for ensuring that digital governance aligns with democratic values.

By drawing parallels between environmental and digital governance principles, we can create a comprehensive framework for digital constitutionalism. This approach would help balance the benefits of technological advancement with the protection of fundamental rights and democratic values in the digital age.

Source: https://www.thehindu.com/opinion/lead/a-growing-shadow-over-digital-constitutionalism/article70362964.ece](https://www.thehindu.com/opinion/lead/a-growing-shadow-over-digital-

Mains Question

“In the context of rising surveillance, AI governance, and datafication, examine the need for digital constitutionalism in India. Discuss the challenges posed to privacy, liberty, and democratic accountability.”