Why in the News
- Recently, central government’s order directing mobile phone manufacturers to pre-install the ‘Sanchar Saathi’ app from 2026 was revoked within 48 hours.
- The rollback followed widespread concerns raised by most stakeholders regarding ambiguous data collection methods, lack of consent, potential for surveillance, and unlimited data storage.
- The policy reversal occurred after Reuters broke the story and Apple refused to implement the policy, suggesting foreign entities may have played a significant role given the government’s interest in retaining Apple and its manufacturing presence in India.
Background or Context
- The government’s move to mandate the app installation was ostensibly aimed at cybercrime safety, as cybercrimes increased from 15.9 lakh cases in 2023 to 20.4 lakh in 2024.
- However, the strong pushback against the order brought forth legitimate questions concerning surveillance, state power, and data misuse. These issues underscore the urgent need for the concept of digital constitutionalism to be properly understood and implemented.
Understanding Digital Constitutionalism
Core Tenets of Digital Constitutionalism
Digital constitutionalism is signified by the extension of constitutional principles into the digital space. These principles, such as liberty, dignity, equality (including non-arbitrariness), accountability, and the rule of law, are perceived as being under threat where data collection, Artificial Intelligence (AI), and surveillance technologies are becoming dominant.
Threat to Constitutional Values
Modern governance increasingly operates as an invisible system, utilising technologies such as biometric databases and predictive algorithms. In the absence of strong constitutional protection within these systems, citizens are likely to be exposed to abuse of authority.
Challenges Posed by Digital Governance
Concentration of Power and Erosion of Rights
Everyday life is now being significantly influenced by digital governance, as automated processes mediate critical functions:
- Mediation of Essential Services: Automated processes mediate services such as Know Your Customer (KYC) verification, welfare distribution, job applications, health-care records, and even political expression on social media.
- Non-Consensual Operation: These technologies often operate without any significant revelation or approval from people.
- Unequal State Creation: Power becomes concentrated in the hands of tech designers, law enforcement agencies, and private companies. This generates an unequal state where citizens are reduced to passive data subjects rather than remaining active right-holders, as expected in liberal democracies.
Problem of Modern Surveillance
Surveillance has evolved into a worrisome, modern form that is neither visible nor immediate, being performed through sophisticated means:
- Surveillance Mechanisms: Modern surveillance is performed with the help of metadata gathering, location tracing, biometric identification, behavioural modelling, and predictive analytics.
- Chilling Effect on Democracy: This constant, silent surveillance can chill free speech, discourage dissent, and disrupt democracies, leading to self-censorship becoming the new normal for individuals aware they are under observation.
Inadequacy of Current Legal Frameworks
The Right to Privacy was affirmed as a basic right in India by the Supreme Court in the landmark Justice K.S. Puttaswamy (Retd.) And Anr. vs Union of India And Ors. (2017) case. However, the more recent Digital Personal Data Protection Act, 2023, is considered inadequate due to significant flaws:
- Broad Governmental Exemptions: Law gives broad exemption to the government.
- Weak Oversight and Remedies: Law is not well overseen by an independent body and contains weak remedies for individuals.
- Prioritisation of Convenience: Law places administrative convenience and national security over individual autonomy and dignity, rendering it insufficient for constitutional protection.
Data-fication and Algorithmic Bias
Efficiency at the Cost of Personal Control
Data-fication has permeated every sector, from banks relying on behavioural analytics to hospitals using digital medical records. While these developments create efficiency, they simultaneously reduce personal control over information:
- Diluted Consent: Consent has been reduced to a routine “click-through” process, not representing a genuine voluntary choice.
- Purpose Limitation Ignored: The principle of purpose limitation is often ignored.
- Erosion of Identity: Privacy loss is now understood as the gradual erasure of personal control over identity and decision-making, moving beyond isolated breaches.
Discrimination via Surveillance Technologies
The use of surveillance technologies in public places, such as closed circuit cameras, biometric scanners, and digital identifiers, leads to constant monitoring.
- Facial Recognition Issues: Facial recognition, which is prohibited or severely limited in some United States cities, is linked to racial discrimination, surveillance, and a risk of false identification, which has led to wrongful arrests abroad. Research has found these systems at times adversely work against people of colour, women, and minority groups.
- Lack of Legal Scrutiny: Such technologies are growing in India despite a lack of comprehensive law on surveillance, effective judicial control, and rare transparency. This unchecked surveillance may transform a democratic state into a monitoring state like Big Brother.
Black Box of Algorithmic Governance
Algorithms are increasingly determining crucial life outcomes: who receives welfare, is profiled by police, has content removed, and who gets a job or a loan application shortlisted.
- Obscure Decision-Making: These systems are commonly known as black boxes because their decision-making functions are obscure.
- Lack of Redressal: When a benefit is denied or a person is suspected, there is no explanation and a clear-cut mechanism of appeal is lacking.
- Constitutional Violations: Algorithmic failures have had real consequences, such as excluding deserving families from welfare schemes and silencing legitimate voices. Technology can quietly violate the constitutional principles of equality, reasonableness, and natural justice.
Way Forward
The appropriate model of digital constitutionalism must extend beyond mere theory to develop institutional protection.
Institutional and Legal Reforms
| Area of Reform | Action Points |
| Establishing Accountability | An independent digital rights commission should be created with the mandate to inquire into violations of digital rights and ensure effective accountability for data misuse or abuse of digital authority. |
| Restricting Surveillance | Law must be reformed to strictly restrict surveillance and allow it only in grave situations of national security, which must be determined by the constitutional principles of necessity and proportionality. |
| Ensuring Transparency and Judicial Control | For all surveillance orders, judicial warrants must be made obligatory. Furthermore, public transparency reports and increased parliamentary scrutiny should be enforced to prevent unchecked power. |
| Auditing High-Risk AI | Risky AI devices and automated decision systems should be subjected to regular auditing and bias-testing to ensure they operate fairly and do not result in discrimination. |
| Enforcing Data Protection | Enhanced data protection must be ensured by reinforcing a tight control of purpose, mandating limited collection of personal data, and stipulating severe punishment of abuse to protect individual autonomy. |
Citizen-Centric Empowerment
| Area of Empowerment | Action Points |
| Right to Redressal | Citizens must be guaranteed the right to explanation regarding automated decisions that affect them, alongside the right to appeal these decisions through clear-cut mechanisms, especially when benefits are denied or suspicion is cast. |
| Constitutional Empowerment through Literacy | Digital literacy is to be considered a form of constitutional empowerment. Individuals should be put in a position to criticise, challenge, and oppose prevailing digital power structures, recognising that rights are mere theories without adequate knowledge. |
Conclusion
- Digital technologies have become integral to citizenship, determining access to services, political participation, and identity.
- With governance increasingly being data-driven, constitutional values must serve as the starting point for this shift. Freedom, equality, and privacy are too precious to be mute victims of mere efficiency.
- Digital constitutionalism is framed not just as a change in law but as the defence of the democratic era in the algorithmic era, with the promise of ensuring that technology remains a servant of the people and not a silent, authoritarian master.
