Digital constitutionalism

Government ordered mobile phone manufacturers to pre-install Sanchar Saathi app from 2026.

Rolled back within 48 hours after concerns on:

• ambiguous data collection

• lack of consent

• unlimited storage

• surveillance fears

Apple refused to implement the policy; Reuters exposed the story.

Government cited rising cybercrimes (15.9 lakh in 2023 → 20.4 lakh in 2024) as justification.

Pushback highlighted risks of state overreach and triggered debate on digital constitutionalism.

Extending core constitutional values — liberty, dignity, equality, non-arbitrariness, accountability, rule of law — into the digital ecosystem.

Threats arise due to:

• expansive data collection

• AI-driven governance

• invisible algorithmic decision-making

• pervasive surveillance

Without constitutional protections, digital governance can enable abuse of authority.

Digital processes now mediate:

• KYC

• welfare distribution

• education and jobs

• health-care systems

• social-media political expression

Most operate without transparency, oversight, or real consent.

Power shifts to tech designers, law enforcement, private companies, making citizens passive data subjects.

Modern surveillance uses:

• metadata

• facial recognition

• location tracking

• predictive analytics

• biometric identification

Surveillance becomes silent, constant, invisible → leads to:

• self-censorship

• chilling of dissent

• weakening of democracy

Right to privacy recognised as fundamental in Puttaswamy (2017).

Intended to safeguard citizen data but has:

• broad government exemptions

• weak independent oversight

• limited remedies for individuals

• prioritises administrative convenience and security over autonomy.

Considered inadequate as a constitutional safeguard.

Sectors using behavioural analytics: banking, healthcare, education, social media.

Efficiency rises but personal control over data erodes.

Consent becomes routine click-through, not meaningful.

Privacy harm is cumulative and structural.

Used widely in public spaces; risks include:

• discrimination

• misidentification

• wrongful arrests

Some U.S. cities have banned/restricted it.

Studies show adverse impact on women, minorities, people of colour.

Digi Yatra data not held by government – raises accountability questions.

Algorithms shape:

• welfare eligibility

• policing

• job shortlisting

• content moderation

These are black box systems — no explanation, no appeal mechanism.

Leads to:

• exclusion from welfare

• silencing of voices

• violation of equality, natural justice, reasonableness.

IT Act, 2000 and digital laws focus on platform regulation, not citizen rights.

Court guidelines are scattered.

No external body to audit AI systems or surveillance orders.

Remedies remain slow, costly, inaccessible.

Public lacks awareness of dangers.

Digital systems now shape rights, freedoms, and state power.

Yet these systems are not subjected to constitutional discipline → undermines democracy.

Must be institutional, not merely theoretical.

Proposals:

• Independent Digital Rights Commission.

• Strict limits on surveillance; allowed only when necessary and proportionate.

• Mandatory public transparency reports.

• Parliamentary scrutiny.

• Judicial warrants for surveillance.

• Regular audit and bias testing of high-risk AI systems.

• Rights to explanation + appeal for algorithmic decisions.

• Stronger purpose limitation, minimal data collection, liabilities for abuse.

• Digital literacy as constitutional empowerment.

Digital technologies shape access to services, identity, and political participation.

As governance becomes data-driven, constitutional values must guide technological adoption.

Digital constitutionalism aims to ensure technology remains a servant of the people, not an authoritarian master.