The Indian government's recent revocation of a mandate requiring pre-installation of the Sanchar Saathi app—aimed at combating cybercrime but criticized for privacy risks, opaque data collection, lack of consent, and surveillance potential.
Cybercrime cases rose from 15.9 lakh in 2023 to 20.4 lakh in 2024, yet the policy rollback highlighted tensions between technological efficiency and civil liberties. 
This incident underscores how digital tools, without constitutional checks, enable state overreach and erode democratic accountability.

Sanchar Saathi: A Trigger for Debate

• Rising Cybercrime Context: Launched as a response to cybercrime cases surging from 15.9 lakh in 2023 to 20.4 lakh in 2024, the app aimed to enhance public safety through digital tracking.​
• Mandatory Installation Mandate: The directive required pre-installation on devices, framed as a technological fix for security but criticized for lacking transparency and user choice.
• Civil Society Pushback: Privacy advocates, civil groups, and tech firms opposed the policy, signaling unease with consent-free digital interventions.​
• Threat to Autonomy: The incident demonstrated how digital interventions, even when introduced as public safety measures, can threaten individual autonomy when unchecked by constitutional safeguards.

Understanding Digital Constitutionalism

• Digital constitutionalism is a growing field of legal and political thought that focuses on applying core constitutional principles—such as human rights, democracy, the rule of law, and the balancing of power—to the digital environment.
• Protecting Fundamental Rights Online: This involves extending rights that exist offline—like freedom of expression, privacy, and equality—into the digital realm. It also addresses new rights specific to the digital environment, such as the right to data protection, the "right to be forgotten," and the right to an explanation for automated decisions.
• Limiting Power: Traditionally, constitutionalism focused on limiting state power. In the digital age, significant power is concentrated in the hands of private multinational technology companies (e.g., Meta, Google, Apple), which act as "gatekeepers" and make decisions affecting billions of users. Digital constitutionalism aims to subject these private actors to accountability and checks and balances, similar to public authorities.

The New Architecture of Surveillance

The rise of digital technologies has created a "new architecture of surveillance" that involves both public and private actors, blurring traditional lines of power and control. This architecture goes far beyond traditional, visible forms of monitoring and includes a pervasive, data-driven system with several key features: 

• Datafication of Life: Nearly all aspects of daily life, from communication to health and movement, are now converted into digital data. This massive collection of information creates unprecedented opportunities for monitoring and analysis by both state authorities and private companies.
• Private Power and "Surveillance Capitalism": The business models of major tech platforms (e.g., Google, Facebook, Amazon) are often based on "surveillance capitalism," where personal data is collected and processed for profit, particularly through targeted advertising and behavioral influence. These private entities exercise a form of "functional sovereignty," establishing their own terms of service and community guidelines that shape the rights and freedoms of billions of users globally, often without public oversight.
• Algorithmic Governance (Algocracy): Decisions affecting individuals' lives—such as welfare distribution, job applications, or content visibility—are increasingly made by opaque algorithmic systems. The lack of transparency and accountability in these "black boxes" means individuals often do not know how decisions are made or have an effective means to appeal them, leading to potential discrimination and an asymmetry of power.
• Public-Private Cooperation: State actors often rely on the private sector for digital infrastructure and surveillance, creating a "hybrid contractual framework" where public and private values merge. This cooperation can expose public authorities to the business interests and "technological solutionism" of private firms.
• Chilling Effects and Self-Censorship: The constant potential for observation, whether by state or private actors, can lead to a "chilling effect" on free speech, as individuals may censor themselves when aware they are under surveillance. This undermines individual autonomy, a precondition for a healthy democratic society. 

Addressing New Challenges

Digital technologies create new issues, including:

• Surveillance: The use of metadata gathering, location tracing, and AI for constant, often invisible, surveillance by both governments and private companies.
• Algorithmic Governance: Decisions made by "black box" algorithms in areas like welfare distribution, job applications, or content moderation often lack transparency and appeal mechanisms.
• Power Imbalances: The terms of service of large platforms often function as a form of private law that users have little power to negotiate. 

Model of Digital Constitutionalism

A model of digital constitutionalism builds institutional and normative frameworks to embed rule of law, rights protection, and democratic accountability into digital governance, balancing powers of states, tech firms, and civil society against surveillance and algorithmic dominance.​

Foundational Elements

Digital constitutionalism models treat the internet as a constitutional space requiring limits on public and private power through transparency, proportionality, and judicial oversight.

Key Pillars

• Power Balancing: Counters excessive authority from tech giants and governments via audits, data minimization, and rights to explanation for automated decisions.​
• Rights Amplification: Extends freedoms like expression, privacy, and equality online, addressing biases and enabling appeals against digital exclusions.​
• Democratic Inclusion: Promotes multi-stakeholder governance beyond state-centric models, ensuring legitimacy in transnational digital policy.​

Key Approaches: develop and implement

Scholars identify several perspectives on how digital constitutionalism is being developed and implemented: 

• Liberal Constitutionalism: This approach focuses on adapting existing national constitutional frameworks and laws (e.g., the U.S. First Amendment, the EU Charter of Fundamental Rights) to the digital environment, often through judicial interpretation and legislation like the EU's General Data Protection Regulation (GDPR) or Digital Services Act (DSA).
• Societal Constitutionalism: This perspective looks beyond state-centric law to the norms and rules emerging from various societal domains, including civil society and the internal governance mechanisms of private corporations (e.g., Meta's Oversight Board).
• Global Constitutionalism: This approach examines transnational initiatives and international human rights law (e.g., UN reports, international declarations) to create global standards for digital governance that transcend national borders.

The Role of Digital Constitutionalism

Digital constitutionalism attempts to counteract these trends by promoting principles such as transparency, accountability, individual autonomy, and the rule of law in the digital space. It provides a framework for: 

• Limiting Power: The core idea is to subject both public and private power to checks and balances, requiring that entities exercising governing functions—regardless of their nature—adhere to constitutional safeguards.
• Protecting Rights: It advocates for the adaptation and reinforcement of existing human rights (e.g., privacy, freedom of expression, data protection) to the digital context, and the recognition of new rights specific to the digital era.
• Ensuring Accountability and Remedies: It pushes for mechanisms of redress, ensuring that individuals have avenues to challenge decisions made by both state and non-state actors in the digital realm.
• Promoting Democratic Values: Ultimately, digital constitutionalism seeks to ensure that technology remains a servant of the people and not an "authoritarian master," by embedding democratic values into the very architecture and governance of the digital world. 

Way Forward

• Institutional Reforms: Establish independent digital rights commissions to audit surveillance, algorithms, and data practices, enforcing proportionality, necessity, and judicial oversight as seen in EU models.​
• Normative Hybridity: Blend binding laws like India's DPDP Act with non-binding declarations from civil society and tech firms, promoting data minimization, rights to explanation, and appeal mechanisms.​
• Inclusive Policymaking: Foster dialectic processes involving governments, private sector, and public for transnational legitimacy, alongside digital literacy programs to empower users against biases.

 
 

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