Need for Digital Constitutionalism

Context

The central government withdrew its directive requiring mandatory installation of the Sanchar Saathi app after widespread concerns regarding privacy, consent, surveillance, and unlimited data access. The rollback occurred within 48 hours, highlighting rising concerns over state power, data protection, and the need for digital constitutionalism in India.

What is Digital Constitutionalism?

1. Digital constitutionalism refers to the application of constitutional values (such as liberty, privacy, dignity, equality, accountability, and rule of law) to digital technologies, platforms, and government data systems.
2. It ensures that digital tools like AI, biometric surveillance, facial recognition, digital ID systems, and large data platforms protect citizens’ rights rather than restrict them.
3. Example: A system like Aadhaar-based verification or facial recognition in public spaces must ensure voluntary consent, transparency, limited purpose use, and independent oversight.
4. Without such safeguards, technology can be misused for mass surveillance or denial of services, violating Article 21 (Right to Privacy and Dignity).

Why Does Digital Constitutionalism Matter?

1. Digital systems now affect everyday life: Digital tools decide access to welfare benefits, KYC verification, education, job opportunities, and healthcare. Without constitutional safeguards, citizens become passive data subjects rather than active rights-holders.
2. Growing concentration of power: A few tech companies, state agencies, and algorithm designers control vast amounts of personal data and decision-making power, leading to imbalances between citizens and institutions.
3. Invisible and continuous surveillance: Modern surveillance through metadata, location tracking, biometric data and predictive analytics is silent and constant, creating fear of being watched and pushing people towards self-censorship.
4. Impact on democratic freedoms: Fear of tracking and profiling restricts free speech, dissent, and participation, weakening democratic spaces and creating a culture of silence and conformity.

How Constitutional Rights Are Being Challenged due to Lack of Digital Constitutionalism?

1. Weak Protection of Right to Privacy (Article 21): The Digital Personal Data Protection Act, 2023 provides broad exemptions to the government and lacks independent oversight, reducing citizens’ control over personal information.
2. Meaningless Consent: Consent has turned into forced or click-through approval, not a free and informed choice, reducing user autonomy over data.
3. Expansion of Surveillance without Legal Framework: Tools like facial recognition, CCTV networks, and biometric scanners operate without dedicated surveillance laws, judicial warrants, or transparency, increasing the risk of misuse.
4. Algorithmic Governance without Accountability: Automated systems can decide who receives welfare, who is profiled by police, or whose content gets removed, but do not provide explanations or appeals, violating principles of natural justice.
5. Discrimination through Biased Technology: Research shows facial recognition is less accurate for women and minority groups, leading to wrongful identification, exclusion or denial of benefits, contradicting equality and non-arbitrariness.

Implications

1. Chilling Effect on Free Speech: People avoid expressing opinions when they fear digital tracking, weakening democratic debate.
2. Exclusion from Welfare and Public Services: Algorithmic errors have prevented many genuine beneficiaries from receiving ration, pensions, or healthcare.
3. Transformation into a Surveillance State: Continuous monitoring can shift governance from public accountability to control and monitoring.
4. Loss of Autonomy and Human Dignity: Users lose control over identity, data, and decision-making processes.
5. Erosion of Trust in Governance: Lack of transparency and remedy mechanisms creates public distrust in digital initiatives.

Challenges and Way Forward

Conclusion

As governance becomes increasingly data-driven, constitutional values must guide digital progress. Digital constitutionalism is essential to ensure that technology remains a tool that empowers citizens, not a mechanism of surveillance and control. Protecting freedom, equality, dignity and privacy is central to preserving democracy in the algorithmic era.