Digital Constitutionalism in India: Protecting Fundamental Rights in the Digital Age

In November 2025, the Indian government was forced to roll back — within hours — its directive making the Sanchar Saathi app mandatory for all mobile users. The reason? Widespread outrage over forced consent, potential mass surveillance, and violation of privacy.

This incident has once again put the spotlight on a fast-emerging global idea: Digital Constitutionalism — the urgent need to extend constitutional safeguards of liberty, dignity, equality, and rule of law into the world of apps, algorithms, Aadhaar, facial recognition, and Big Tech platforms.

What is Digital Constitutionalism?

Digital Constitutionalism is the philosophy and practice of applying core constitutional principles to digital technologies, platforms, and data-driven governance.

It insists that:

• Privacy, free speech, equality, and due process do not stop at the edge of the internet or the smartphone screen.
• Neither the State nor private corporations can use technology to bypass the Constitution.
• Every algorithmic decision, surveillance tool, or data collection practice must pass the same tests of legality, necessity, and proportionality that apply offline.

The concept gained global traction after landmark judgments like India’s Puttaswamy (2017) (which declared privacy a fundamental right) and the European Union’s GDPR (2018).

Why Digital Constitutionalism Matters for India in 2025

India is the world’s largest “digital society”:

• 900+ million internet users
• World’s largest biometric database (Aadhaar – 1.4 billion enrolments)
• Rapid rollout of facial recognition (Delhi Police, DigiYatra, state projects)
• Hundreds of government apps collecting sensitive personal data
• Rising use of AI in welfare, policing, credit scoring, and hiring

Yet, the legal framework lags dangerously behind technology.

Nine Core Features of Digital Constitutionalism

1. Privacy as a Fundamental Right Article 21 + Puttaswamy triple test (legality, necessity, proportionality) applies to every digital intrusion.
2. Meaningful, Granular & Revocable Consent No more “take-it-or-leave-it” clickwrap agreements or forced app installations.
3. Strict Limits on State & Corporate Surveillance Judicial warrants, independent oversight, transparency reports.
4. Algorithmic Transparency & Accountability Mandatory audits and explainability for high-risk AI systems.
5. Non-Discrimination by Design Bias testing so AI does not perpetuate caste, gender, religious, or economic inequality.
6. Data Minimisation & Purpose Limitation Collect only what is strictly needed; use only for declared purposes.
7. Right to be Forgotten & Data Portability Empowers citizens to control their digital footprint.
8. Independent Oversight Institutions A powerful Digital Rights Commission with investigation and enforcement powers.
9. Digital Literacy as a Constitutional Duty State must educate citizens about their digital rights.

Current Laws Governing Digital Rights in India (2025)

India still has no dedicated modern surveillance law and no independent algorithmic oversight body.

Five Burning Challenges in 2025

1. Mass Surveillance Without Warrants Facial recognition systems, CCTV networks, and metadata collection operate in a legal vacuum.
2. Blanket Government Exemptions under DPDP Act Section 17(2) & 17(4) allow the State to bypass almost every citizen protection.
3. Algorithmic Opacity & Bias No mandatory bias audits even for AI used in policing or welfare schemes.
4. Consent Fatigue & Dark Patterns Most Indians “accept” privacy policies they cannot read or understand.
5. Absence of Institutional Oversight No equivalent of Europe’s Data Protection Authorities or proposed AI Board with real teeth.

Way Ahead

Experts, civil society, and even some parliamentary committees now agree on the following urgent reforms:

1. Enact a Modern Surveillance Law (2026–27)
   • Judicial warrant for targeted surveillance
   • Independent Surveillance Complaints Tribunal
   • Annual transparency reports
2. Establish a Statutory Digital Rights Commission
   • Powers to audit government & private algorithms
   • Investigate complaints and impose heavy fines
   • Issue binding directions
3. Amend the DPDP Act, 2023 Urgently
   • Delete or drastically narrow government exemptions
   • Introduce statutory damages and class-action lawsuits
   • Mandate strict data retention periods
4. Bring a High-Risk AI Regulation Framework
   • Pre-deployment fundamental rights impact assessments
   • Third-party bias audits
   • Public register of high-risk systems
5. Massive Digital Literacy Mission
   • Include digital rights in school curriculum
   • Fund civil-society “data rights clinics”

Conclusion

As India races toward a $1 trillion digital economy, the temptation to prioritise “ease of governance” and “ease of doing business” over constitutional rights is enormous.

But every forced app download, every un-audited facial recognition camera, every blanket data exemption chips away at the very foundation of our democracy.

Digital Constitutionalism is not anti-technology; it is pro-constitution in the digital age. Only when liberty, dignity, and equality are coded into our digital infrastructure can we claim to be a truly digital democracy.

The Sanchar Saathi rollback is a reminder: citizens are watching. The next five years will decide whether India becomes a global beacon of digital constitutionalism — or a cautionary tale of algorithmic authoritarianism.

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