By: Yash Tiwary and Anshumaan Jaiswal 

I grew up in a physical world, and I speak English. The next generation is growing up in a digital world, and they speak social.” – Angela Arhendts

Introduction

The world we live in today is an ever-expanding digital world. This world has revolutionised our lives, transforming how we communicate, work, and access information. Its pervasive influence extends into every aspect of our existence. However, while this creates new and unprecedented opportunities, this digital landscape also raises significant concerns about extensive violations of fundamental rights such as privacy, surveillance, individual autonomy, etc. As we navigate this complex digital environment, it becomes crucial to balance the benefits of technological progress with the protection of fundamental rights and freedoms.

In this article, we shall delve into how the concept of digital constitutionalism, a contemporary off-spring of constitutionalism, has developed through time and its extreme necessity in today’s world with its ever-expanding digital influence. The European Union was the first trailblazer in defining the domain and scope of digital constitutionalism. Further, this article shall look into India’s Constitution and its data protection regime that needs a revamp to suit the changing needs of this digital society and finally, how our golden triangle of rights needs a relook to conform to the contemporary challenges.

What is Digital Constitutionalism?

While the traditional idea of constitutionalism stems from a negative sense that deals with the limitation of powers of the ruler or the government by law through a system of checks and balances, it also embodies a positive approach rooted in the idea of protecting all fundamental rights. Digital constitutionalism aims to propagate this very idea regarding the digital realm. It is an evolution of the core ideas of constitutionalism to adapt to the mutated digital world. It revolves around extending the foundational principles such as the rule of law, separation of power and protection of human rights in the context of a digital world.

One of the principal reasons necessitating the reimagining of these constitutional ideals is the changing nature of threats to the fundamental rights of the citizenry. While, as per the classical understanding, the principle of constitutionalism primarily restricts the state’s actions, this needs a relook in the digital world. Due to technology’s advent, the threat is now more global than local. It stems from the actions of global digital giants engaged in data mining and processing.

Digital constitutionalism envisions creating a society where digital technology would not contribute to building a secluded world where individuals are not entitled to their basic fundamental rights. Thus, put succinctly, digital constitutionalism provides a theory to reframe the stakes of constitutionalism for the digital age.

Development 

The European Union, one of the leading trailblazers in the formulation of laws regarding data protection, has traced a transformative change in its policy over the last two decades. This can be traced through three broad periods, i.e., Digital Liberalism, Judicial Activism and Digital Constitutionalism. The first phase has been characterised by policies like the  , which prioritised market freedoms such as those related to services. However, it was soon felt that such a digital environment placed a massive shadow on democratic principles.

Two notable developments characterised the beginning of the second phase. The first is the emergence of new actors in the digital environment. i.e., the online intermediaries and the recognition of the European Union Charter on Fundamental Rights. This spurred the European Court of Justice to adopt judicial activism to protect the fundamental rights of the citizenry in the digital world, utilizing the Charter to fill gaps in current legislation and safeguard fundamental rights online, as demonstrated in landmark cases such as  .

However, over time, the digital actors assumed a position of quasi-public authorities as they regulated the activities of citizens’ data processing autonomously, gatekeeping their online space. This, along with the growing judicial activism, catalysed the coming of the third phase, i.e., digital constitutionalism. This phase has been primarily characterised by restricting online platforms’ powers using legal measures to enhance transparency and accountability in online content moderation and data processing. The EU adopted the  , emphasizing transparency, fairness, and the safeguarding of innovation. The recognition and adoption of the General Data Protection Regulations further enhanced data subjects’ rights and the accountability requirements for data controllers. The   further expanded this approach, addressing issues of online platform governance and market competition.

The Broad Scope of Digital Constitutionalism

To understand digital constitutionalism, the concept must be generalized beyond its traditional state-centric roots to emphasize its core functions: protecting fundamental rights and balancing power dynamics. These days, digital platforms as well as public institutions decide the true extent of many fundamental rights, including freedom of speech and privacy. This concentration of control over services and public functions necessitates a change in perspective from viewing public actors as the only threat to freedoms and rights to viewing private businesses, particularly internet platforms, as posing a comparable threat.

The role of constitutional law is called into question by the fact that transnational private companies, like Twitter, Meta, Google, and others, make decisions on a global scale, govern spaces that are only officially private, and perform tasks that are typically performed by public authorities. This leads to the extension of constitutional protections to the performance of these quasi-public functions. Ignoring how non-state actors might impact individual rights would be obsolete and ultimately ineffective in protecting human dignity, which can be infringed upon by both public and private entities.

By extending the scope, it provides a comprehensive framework for safeguarding rights and balancing power in the algorithmic society.

India and Digital Constitutionalism

The idea of safeguarding information is increasingly significant in today’s digital era. Globally, GDPR has emerged as a model for robust data protection. In India, the 2017 Puttaswamy judgment recognized informational privacy as a fundamental right. However, a pressing question remains: once data enters the digital domain, how do we protect it? The answer lies in resistance; resistance against both state and non-state actors.

In European jurisdictions, data holds the same intrinsic value in the digital realm as human dignity does in the physical world. Article 8 of the EU Charter affirms data protection as a fundamental right, integrating it as a facet of human dignity. This reflects the principle of Digital Constitutionalism, where digital dignity is safeguarded alongside physical dignity.

India’s data protection regime, including the Digital Personal Data Protection (DPDP) Act, draws heavily from  , which serves as a beacon for data protection regulations worldwide. However, while GDPR embodies Digital Constitutionalism, India’s approach has limitations. In India, informational privacy is recognized, but data protection is not yet perceived as an extension of human dignity. This creates a gap between the legal framework and the general understanding of privacy, reflecting a societal and institutional awareness deficit.

As a nation, India is still adapting to the idea of privacy itself, a concept introduced only in 2017. Informational privacy, a more nuanced and advanced aspect of this right, remains a developing notion. India’s sense of digital dignity and jurisdiction in the realm of Digital Constitutionalism is still evolving, making GDPR’s advanced principles challenging to replicate. In India, which possesses the largest and most comprehensive Constitution, it remains uncertain if the physical Constitution can safeguard the digital rights and welfare of citizens in the forthcoming decades.

The interplay of the digital world vis-a-vis the Golden Triangle of Rights

Digital technologies have a profound effect on constitutional principles such as equality, freedom of speech, and privacy, making it essential to establish a framework of digital constitutionalism to protect fundamental rights in India. of the Indian Constitution guarantees the right to equality, which includes addressing the digital divide that worsens social inequalities. Ensuring universal access to digital technologies and the internet is vital for inclusive development, in line with the Preamble’s commitment to social justice and equality.

Article 19 protects freedom of speech and expression, which encompasses the right to access and disseminate information. However, instances like China’s Great Firewall and excessive censorship demonstrate how digital platforms can be manipulated to stifle dissent, underscoring the need for policies that strike a balance between free expression and harm prevention. The Cambridge Analytica incident highlights the susceptibility of democratic processes to data exploitation, emphasizing the importance of strong data protection measures.
The right to privacy is protected under Article 21, and this includes personal information in a digital setting. Protecting personal information is essential to preserving individual autonomy and dignity in the face of emerging technologies that enable widespread surveillance and illegal data collecting.

The protection of this golden triangle of rights is essential for the protection of democracy, which the courts and governments have been successful in safeguarding in the physical world. It is now pertinent that these rights are secured in the digital world and to do so the principles of digital constitutionalism need to be adopted in letter.

Conclusion

Traditional constitutional safeguards need to be adapted for the digital age in order to address the unique issues that are put forward by the rapid advance of technology. Digital constitutionalism, which is grounded in the principles of equality, freedom, and privacy, ensures that fundamental rights are upheld digitally. In India’s increasingly interconnected society, digital constitutionalism is essential for empowering people and preserving democratic ideals by fostering open communication, fair access, and data protection.

Initiatives like data localization—gaining momentum in South Asian countries—are efforts to reclaim sovereignty and integrity against non-state actors. However, while these steps mark progress, India requires more time and effort to build the societal conscience and institutional capacity necessary to align with the advanced frameworks seen in Western jurisdictions like GDPR. Significant efforts would be needed in the coming years to remold the ideals of our gargantuan constitution to protect the invaluable rights of our digital citizenry. Forward looking data regulation policies that would place an extensive system of checks and balances on both the state and non-state digital actors are the call of the hour.