A Growing Shadow Over Digital Constitutionalism

UPSC Syllabus Topic: GS Paper 2 –Government Policies for various sectors

Introduction

Digital technologies now shape welfare services, policing, communication, and even political expression. But as these systems expand, concerns about surveillance, data misuse, consent, bias, and weak oversight have intensified. The Sanchar Saathi controversy exposed how quickly digital tools can challenge constitutional protections. With algorithms, biometrics, and AI influencing daily life, India faces an urgent need to safeguard liberty, dignity, equality, and accountability in the digital space. This is the core idea of digital constitutionalism.

What is “digital constitutionalism”?

Meaning: Digital constitutionalism means applying core constitutional values such as liberty, dignity, equality, fairness, accountability, and the rule of law to the digital world. It ensures that technology, data systems, and artificial intelligence do not weaken citizens’ rights.

Digital Governance and New Risks: It recognises that today’s governance increasingly depends on digital tools like biometric databases, predictive algorithms, AI-based policing, and automated welfare systems. These systems deeply influence people’s daily lives. Without constitutional checks, they can become instruments of surveillance, exclusion, and discrimination.

Constitutional Basis: The idea gained strength after the Supreme Court in Justice K.S. Puttaswamy (2017) held that privacy is a fundamental right and that any restriction on it must be legal, necessary, and proportionate. This judgment created a constitutional basis for protecting individual rights in the digital age.

Why There Is Need for “Digital Constitutionalism”

1. Constant and invisible surveillance: Surveillance today is silent. Metadata, location tracing, behavioural patterns, and biometric identifiers allow authorities and companies to observe people without physical presence. This chills free speech and encourages self-censorship.
2. Erosion of meaningful consent: Consent is now a routine click. People do not fully understand how their data will be used or shared. This leads to slow loss of personal control over identity and choices.
3. Concentration of power: Control lies with tech designers, law enforcement agencies, and private companies. Citizens become passive data subjects rather than active right-holders. This shifts the democratic balance away from people towards institutions and corporations.
4. Discriminatory technologies: Algorithmic tools and facial recognition can produce biased results. Global studies show higher false positives for people of colour and women. These errors may lead to humiliation, wrongful suspicion, denial of services, or unfair targeting. The main problem here is discrimination in the outcome of the technology.
5. Lack of transparency and appeal: Automated systems decide who gets welfare, who is flagged by police, and whose content is removed online. Often, people do not know why a decision was taken or how the system works. When a decision is wrong, there is no clear explanation or simple appeal process. The main problem here is the absence of openness and remedy, which violates natural justice.
6. Weak legal framework: The IT Act, 2000 and existing rules were not designed for AI or data-driven governance. Courts have issued limited guidelines, but they are scattered. India lacks an institution that can regularly audit high-risk algorithms or surveillance tools.
7. Growing democratic risk: When digital systems influence rights but remain outside constitutional control, democracy becomes weak. If unchecked, digital governance can shift towards a “monitoring state” rather than a rights-respecting state.

Thus, digital constitutionalism is essential to ensure that technology does not overpower citizens’ freedoms.

Initiatives Taken

Government Initiatives in India

• Sanchar Saathi rollback: The government withdrew the mandatory installation order within 48 hours after concerns about privacy and consent. This shows that public pressure can correct digital overreach.
• Puttaswamy Judgment (2017): Established privacy as a fundamental right and set the tests of legality, necessity, and proportionality for any intrusion.
• Digital Personal Data Protection Act, 2023: Introduced rules on data processing, although exemptions for the State remain wide.
• NITI Aayog’s Responsible AI Framework: Suggests transparency, safety, accountability, and non-discrimination in AI systems.
• India AI Mission (2024–25): It calls for ethical, responsible AI deployment, although concrete enforcement mechanisms are still developing.

Global Government Initiatives

• EU’s General Data Protection Regulation (GDPR): Sets strict rules on consent, data minimisation, purpose limitation, and user rights. It is considered the strongest example of digital constitutionalism.
• EU AI Act (2024): Introduces a risk-based approach. It bans unacceptable AI uses like certain biometric mass surveillance and demands strict checks for high-risk AI.
• UN Resolutions on AI Governance (2023–24): It call for safe, secure, trustworthy and human-centric AI that respects human rights and supports sustainable development.

Private Sector and Civil Society Initiatives

• Platform resistance: Apple refused to install Sanchar Saathi by default, forcing reconsideration.
• Investigative journalism: Reuters exposed the issue, creating public awareness.
• Digital rights groups: Organisations like the Internet Freedom Foundation highlight legal gaps, protest mass surveillance, and demand stronger oversight.
• Global NGOs: Amnesty International and others campaign against biased facial recognition systems.

These actors cannot replace constitutional institutions, but they often initiate public debate and push governments to rethink intrusive measures.

Way Forward

1. Independent digital rights commission: Create a statutory, independent body with powers to audit high-risk algorithms, inspect surveillance programmes, order corrections and provide quick remedies to citizens.
2. Comprehensive surveillance law: Surveillance should be allowed only in clearly defined, grave national-security or serious crime situations, subject to the Puttaswamy tests of legality, necessity and proportionality and prior judicial warrants wherever possible.
3. Strong transparency and oversight: Mandatory parliamentary review, public transparency reports on interception and algorithmic tools, and routine audits similar to EU-style fundamental-rights impact assessments for high-risk AI.
4. Algorithmic accountability and due process: Citizens should have a clear right to explanation and a right to appeal against automated decisions in welfare, policing, credit, employment or content moderation. There is need for regular bias-testing of “risky AI devices” to avoid discrimination.
5. Tight data-protection norms: Purpose limitation, minimal collection, storage limits and heavy penalties for abuse should be enforced in practice, not just on paper, drawing on principles already recognised in GDPR-style regimes.
6. Digital literacy as constitutional empowerment: People must understand how digital systems affect their rights. Citizens need skills to question, complain and organise against arbitrary digital power; otherwise, rights remain abstract.

Conclusion

Digital systems now hold enormous power over rights, identity, and opportunities. Without strong safeguards, they may create silent, unchecked forms of surveillance and discrimination. Digital constitutionalism ensures that technology remains accountable to democratic values. Strong laws, transparent systems, independent oversight, and empowered citizens are essential to protect freedom and dignity in an increasingly data-driven world.

Question for practice:

Examine how the rise of digital technologies has created the need for “digital constitutionalism” in India.

Source: The Hindu