In an unprecedented move, the central government revoked its order to mobile phone manufacturers to install ‘Sanchar Saathi’, a government app, from 2026. The rollback came in 48 hours following widespread concerns raised by most stakeholders about ambiguous data collection methods, the lack of consent, surveillance and unlimited data storage. Reuters broke the story and Apple refused to implement the policy.
These foreign entities may have played some sort of a backstage role as the government cannot afford to lose Apple and its manufacturing in India. Although the government’s move to have the app installed was apparently aimed as a safety measure — cybercrimes increased from 15.9 lakh cases in 2023 to 20.4 lakh in 2024 — to help mobile users and the police, legitimate questions were raised during the pushback against the government’s move about surveillance, state power and data misuse. These issues can be regarded as a significant step to understand the urgent need of what may be termed as digital constitutionalism.
What digital constitutionalism entails
Digital constitutionalism signifies the extension of constitutional principles such as liberty, dignity, equality including non-arbitrariness, accountability and rule of law in the digital space. These values are being threatened in the world where data collection, artificial intelligence (AI) and surveillance technologies take the lead. Modern governance is becoming an invisible system, whether it is biometric databases, predictive algorithms or both. In the absence of strong constitutional protection within these systems, humans are likely to be exposed to abuse of authority.
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Everyday life is now being influenced by digital governance. Automated processes mediate Know Your Customer (KYC) verification, welfare distribution, job applications, health-care records, and even political expression in social media. These technologies tend to operate without any significant revelation or approval from people.
Consequently, the concentration of power takes place in the hands of tech designers, law enforcement agencies and private companies. This generates an unequal state where the citizens are passive data subjects but not active right-holders as they are supposed to be in liberal democracies.
There has also been a worrisome development in surveillance which even George Orwell could not imagine in the celebrated and futuristic 1984. It has ceased to be visible and immediate. These days it is being performed with the help of metadata gathering, location tracing, biometric identification, behavioural modelling and predictive analytics.
This kind of silent and constant surveillance can chill free speech, discourage dissent and disrupt democracies. People start censoring themselves when they are aware that they are under observation. Self-censorship is the new normal. The right to privacy is now considered to be one of the basic rights in India. This was affirmed in Justice K.S. Puttaswamy (Retd.) And Anr. vs Union of India And Ors. (2017) by the Supreme Court of India. More recently, the Digital Personal Data Protection Act, 2023, was passed by Parliament. Although it was supposed to safeguard the data of the citizens, the law has some significant flaws. It gives broad exemption to the government, is not well overseen by the independent body, and has weak remedies for individuals. It places administrative convenience and national security over individual autonomy and dignity, rendering it inadequate as a constitutional protection.
Efficiency but less personal control
Data-fication has entered every sector. Banks rely on behavioural analytics. Hospitals and insurance agencies depend on digital medical records. Education is delivered through online platforms. Social media do profile users constantly. These developments create efficiency, yet they also reduce personal control over information. Consent has become a routine “click-through” process, not a genuine voluntary choice. Purpose limitation is often ignored. Consequently, privacy loss is no longer just about isolated breaches. It is about the gradual erasure of personal control over identity and decision-making.
Surveillance technologies now form part of public places. Closed circuit cameras, biometric scanners and digital identifiers constantly monitor people. Accordingly, facial recognition has been prohibited or severely limited in a few cities in the United States because of racial discrimination, surveillance and false identification. Facial recognition misidentification has led to wrongful arrests abroad. Digi Yatra data (at Indian airports) too is not with the government. Research has found that these systems at times adversely work against people of colour, women, and minority groups. Thus, facial recognition technology basically leads to discrimination rather than assisting crime prevention which like Sanchar Saathi, is its stated objective.
While such technologies are still growing and are being used in India. There is no comprehensive law on surveillance. There is a lack of effective judicial control. Transparency is rare. This poses a serious disproportion between authority and responsibility. Unchecked surveillance may end up transforming a democratic state into a monitoring state like Big Brother.
Algorithms determine who receives welfare, is profiled by police, has their content removed, and who gets a job or a loan application shortlisted. Such systems are commonly known as black boxes as their decision-making functions are obscure. In cases when a benefit is not provided to a person, or a person is suspected, there is no explanation. It also lacks a clear-cut mechanism of appeal.
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There are real consequences. Algorithmic failures have excluded deserving families from welfare schemes. Automated content moderation has silenced legitimate voices. Indeed, technology can quietly violate the constitutional principles of equality, reasonableness and natural justice.
An inadequate legal system
The legal system that is in place in India, including the Information Technology Act, 2000, and emerging digital laws, is mainly aimed at controlling technology and governing platforms. It is not doing enough to defend citizen’s liberties in general and privacy in particular. Few guidelines have been provided by courts, but these are disjointed and provisional. When it comes to high-risk algorithms and surveillance orders, there is no external institution with the ability to audit them or even review them. To the majority of tech-savvy citizens, remedies are slow and expensive and unreachable. Masses are unaware of dangers.
This gives rise to a paradox in the constitution. Rights, freedoms and state power are now being shaped by the digital system, just like the government institutions. These are not, however, subjected to constitutional discipline. This is an incongruity that undermines democracy.
To find the appropriate model of digital constitutionalism, it will have to be more than being merely theoretical. It should develop institutional protection. Violations should be inquired into by creating an independent digital rights commission that will ensure accountability. The law should restrict surveillance except in grave situations of national security, which can be determined by necessity and proportionality. Public transparency reports and parliamentary scrutiny, and judicial warrants must be obligatory.
Risky AI devices should be audited and bias-tested on a regular basis. Citizens should be granted the right to explanation and the right to appeal to the automated decisions. The tight control of purpose, limited collection and severe punishment of abuse should be reinforced to ensure better data protection.
Digital literacy too is to be considered as a constitutional empowerment. Individuals should be in a position to criticise, challenge and oppose digital power structures. Rights are mere theories without knowing.
Digital technologies have become an integral part of citizenship. They determine the availability of services, political participation and even identity. With governance increasingly being more data-driven, constitutional values should be used as the starting point for this shift. Freedom, equality and privacy are too precious to be among the mute victims of efficiency. Digital constitutionalism is not just a change in law. It is the defence of the democratic era in the algorithmic era. It is a promise to make sure that technology is a servant of the people and not their silent authoritarian master.
Faizan Mustafa is Vice-Chancellor, Chanakya National Law University, Patna, Bihar. Aashank Dwivedi is a scholar at the Dr. B.R. Ambedkar National Law University, Sonepat, Haryana
Published – December 06, 2025 12:16 am IST
