Recently, the government revoked its order requiring mobile phone manufacturers to install the Sanchar Saathi app from 2026.
- The government roll came after most stakeholders raised concerns about unclear data collection, lack of consent, surveillance, and unlimited data storage.
About Sanchar Saathi App & Recent Issue
- It is a citizen-centric telecom security and user-protection platform developed by the Department of Telecommunications (DoT), Ministry of Communications.
 Core Purpose: To empower mobile subscribers to secure their devices and digital identities, combat cyber-related frauds, and reduce the misuse of telecom resources like stolen devices and fraudulent SIMs.- Key Feature (Chakshu): Allows citizens to proactively report suspected fraudulent communications (like scam calls, SMS, or WhatsApp messages related to fake Know Your Customer (KYC), financial fraud, or impersonation).
- Device Security (CEIR): It integrates with the Central Equipment Identity Register (CEIR) to allow users to block and trace lost/stolen mobile phones across all telecom networks using the device’s unique IMEI number, making the device unusable.
- Identity Verification (TAFCOP): It enables subscribers to check the list of mobile connections issued in their name under their identity proof and report or request the disconnection of any unknown or unauthorized numbers (via the TAFCOP service).
- Mandate Controversy: The DoT’s recent order to mobile phone manufacturers to mandatorily pre-install the app on all new devices sparked a massive political and legal debate.
- Critics called it a “snooping app” and argued it violated the Right to Privacy by undermining user choice and consent.
- Government Rollback: Following the widespread backlash from civil society, opposition parties, and resistance from global tech companies like Apple, the government revoked the mandatory pre-installation order within 48 hours, clarifying that the app is voluntary and users have the freedom to install, delete, or deactivate it.
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About Digital Constitutionalism
- Meaning and Core Principles: Digital Constitutionalism refers to the extension of fundamental constitutional values—liberty, dignity, equality (including non-arbitrariness), accountability, and the rule of law—to the digital ecosystem.
- In a world where technology increasingly mediates governance, these principles must guide the design, deployment, and regulation of digital systems to protect citizens’ rights.
- Key Features of Digital Constitutionalism: The features of digital constitutionalism are focusing on new actors, new forms of power, and multi-level governance.
- Protection of Digital Rights: Ensures fundamental rights like privacy, freedom of expression, and access to information are upheld in the digital space, safeguarding citizens against misuse of technology by both the state and private actors.
- Accountability of Digital Platforms: Holds digital companies accountable for respecting user rights, ensuring transparency in how they collect, use, and share personal data, and regulating algorithms to avoid discrimination and censorship.
- Digital Sovereignty: Emphasizes a nation’s control over its digital space, including data residency laws, the regulation of digital infrastructure, and the protection of citizens’ rights in a globalized, interconnected digital environment.
- Judicial Oversight: Ensures courts review digital laws and government actions to ensure compliance with constitutional principles, offering legal recourse if citizens’ digital rights are violated by state or corporate entities.
- Promotion of Digital Inclusion: Ensures equal access to digital resources for all citizens, fostering digital literacy and enabling participation in the digital economy, regardless of socio-economic background.
- Digital Systems That Now Mediate Governance: Modern public administration and private service delivery increasingly rely on:
- Biometric Databases
- Aadhaar (Unique Identification Authority of India)
- Digi Yatra Facial Recognition System
- These systems authenticate identity but also create permanent biometric trails capable of large-scale surveillance.
- Automated and Predictive Algorithms
- Predictive Policing Algorithms
- Automated Welfare Targeting Systems
- Credit Scoring Algorithms used by financial institutions
- These tools determine access to welfare, policing decisions, financial opportunities, and more—often without transparency or human appeal mechanisms.
How Digital Constitutionalism Differs from Classical Constitutionalism
Classical constitutionalism regulates visible state actions—laws, executive orders, police action—and relies on judicial review to check government power.
- Digital constitutionalism, however, deals with invisible, algorithm-driven decision-making, where outcomes are shaped not by human officials but by:
- Predictive algorithms (Automated data-driven models that use past patterns to forecast behaviour or risk, influencing decisions like policing, credit, or welfare).
- Biometric identifiers (Unique body-based markers—fingerprints, iris scans, facial features, used for identity authentication and creating permanent digital trails)
- Continuous metadata collection (Ongoing capture of behavioural traces—location logs, device IDs, call records—that map user activity without reading content)
- These systems operate silently in the background, creating a new layer of state and private power that traditional constitutional safeguards were not designed to regulate.
About Constitutionalism
- Refers: It is the political philosophy or idea that the authority of government is derived from and limited by a body of fundamental law, typically codified in a constitution.
- It is the core principle that subjects those who exercise governmental power to the limitations of a higher law (the Constitution).
- It essentially transforms a government of men into a government of laws, preventing the state from acting arbitrarily.
The Values of Constitutionalism
- Constitutionalism is an evolving ideology whose principles have transformed across centuries, shaped by struggles against arbitrary rule and by modern democratic aspirations.
- Original Values of Constitutionalism (19th-Century Foundations): Constitutionalism emerged as a response to absolute monarchy, aiming to restrain unbounded sovereign power. Its foundational principles included:
- Written Constitution: A supreme, codified document replacing personal discretion with binding rules.
- Rule of Law: The idea that no person—not even the sovereign—is above the law.
- Separation of Powers: Division of authority into legislative, executive, and judicial branches to prevent concentration of power and counter arbitrary (ab-solutus) authority.
- These values focused on limiting the State and establishing predictable, accountable governance.
- Contemporary Evolution of Constitutionalism: As democratic thought matured, constitutionalism expanded from restricting power to empowering individuals:
- Democracy as a Foundational Principle: Popular sovereignty and representative institutions became core features.
- Shift from Negative to Positive Constitutionalism: Beyond limiting State action, constitutions now impose affirmative duties to promote welfare and justice.
- Centrality of Fundamental Rights & Human Dignity: Modern constitutionalism prioritises liberty, equality, non-arbitrariness, and dignity, ensuring that the State actively protects individual freedoms.
- Thus, constitutionalism today focuses on rights protection and human empowerment, not merely restraining government.
- Debunking the “State-Link” Myth:
- Globalisation and digital governance have extended constitutional norms beyond the State to international institutions, private corporations, and digital platforms.
- This has created a plural, composite, and fragmented constitutional ecosystem, where principles like accountability, rights protection, and constitutional morality operate across borders.
- Modern constitutionalism is therefore portable, adaptable to new governance spaces, and essential for regulating both state and non-state power.
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Need for Digital Constitutionalism in India
- Post-Puttaswamy Constitutional Mandate: After privacy was recognised as a Fundamental Right under Article 21 in Justice K.S. Puttaswamy (Retd.) And Anr. vs Union of India And Ors. (2017), all state digital systems must satisfy the tests of necessity, proportionality, and fairness, making a rights-based digital framework indispensable.
- Recognising Technology’s Developmental Gains: Digital systems have enabled major advances—such as the JAM Trinity, which brought 520 million people into the formal economy and reduced welfare leakages by ₹2.7 lakh crore—but these benefits must now operate within a framework that embeds Privacy by Design and Security by Design.
- JAM Trinity (Jan Dhan–Aadhaar–Mobile) refers to India’s digital public infrastructure that links Jan Dhan bank accounts, Aadhaar-based identity verification, and mobile connectivity to deliver targeted, transparent, and real-time public services.
- The Constitutional Pivot for the Future: As governance becomes increasingly mediated by data and algorithms, India must ensure that digital infrastructures uphold dignity, autonomy, equality, and non-arbitrariness, allowing technology to support development without eroding fundamental rights.
How the World Regulates Digital Power
- European Union’s General Data Protection Regulation (GDPR) Framework: The European Union’s General Data Protection Regulation establishes strong digital rights such as the Right to Explanation for algorithmic decisions and the Right to be Forgotten, embedding transparency, accountability, and autonomy into data governance.
- European Union’s Artificial Intelligence (AI) Act Risk-Based Model: The European Union’s proposed Artificial Intelligence Act classifies AI systems into risk categories—such as unacceptable, high, and limited risk—mandating bias audits, human oversight, and strict compliance standards for high-risk applications to safeguard fundamental rights.
- United States’ State-Level Privacy Framework: The United States follows a decentralised approach, where laws such as the California Consumer Privacy Act (CCPA) provide rights to access, correct, delete, and opt-out of data collection, but protections vary widely due to the absence of a federal privacy law.
- Global South’s Digital Sovereignty Perspective: Emerging economies like India must balance privacy protection with inclusion, since uncritical adoption of Western models could marginalise citizens who rely on Aadhaar-linked welfare, Direct Benefit Transfers (DBT), and other digital systems for essential public services.
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Challenges & Concerns that need to be Tackled
- Expanding Surveillance & Chilling Effect: Digital monitoring now operates silently through metadata, facial recognition, device IDs, location logs, and behavioural modelling, creating a climate of fear that discourages dissent and democratic participation.
- Example: Facial recognition deployed at Delhi protest sites in 2023 enabled mass identification and deterred public mobilisation.
- Weak Privacy Protections & Broad Government Exemptions: The Digital Personal Data Protection Act, 2023 gives the State wide exemptions, enabling data collection without meaningful consent, oversight, or transparency, reducing consent to a forced click-through routine.
- Example: Mandatory linkage of Aadhaar with welfare schemes and mobile numbers earlier resulted in de facto compulsory consent for millions.
- Algorithmic Governance Risks: As AI systems decide eligibility for welfare benefits, policing, credit scoring, and job opportunities, constitutional values must anchor digital decision-making to prevent bias, arbitrariness, and opaque “black-box” outcomes.
- Example: Digi Yatra facial recognition (2024) showed higher false positives for women and minorities, reflecting global patterns of algorithmic bias.
- Black-box outcomes refer to decisions made by AI or algorithmic systems where the process, reasoning, or criteria behind the decision are hidden, opaque, or impossible to explain.
- Rising Cybercrime Pressure: As per recent government data, Cybercrime cases rose from 15.9 lakh (2023) to 20.4 lakh (2024), prompting the government to justify intrusive tracking tools like Sanchar Saathi, raising concerns about proportionality, scope, and constitutional safeguards.
- Concentration of Power in State Systems & Big Tech Platforms: 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.
- Example: Sudden content takedowns by major platforms during the 2024 election cycle affected journalists and creators without transparent grievance mechanisms.
- Absence of Surveillance Law & Oversight Mechanisms: India lacks a statutory framework for judicial warrants, proportionality checks, parliamentary scrutiny, or independent audits, allowing mass surveillance systems to operate without constitutional limits.
- Example: CMS (Central Monitoring System) and NATGRID, expanded in 2024, continue functioning without a dedicated surveillance law.
- Digital Exclusion & Rights Violations Due to Tech Failure: Reliance on biometric and app-based authentication excludes the elderly, disabled, manual labourers with fading fingerprints, and those in low-connectivity areas, making welfare access dependent on flawed technology rather than constitutional rights.
- Example: Aadhaar biometric failures caused ration denials in parts of Jharkhand (2024), forcing emergency manual verification to prevent starvation.
- Federal Stress & Executive Overreach in Digital Governance: Centralised digital surveillance projects frequently bypass State governments, and executive notifications often bypass Parliament, weakening cooperative federalism and the separation of powers.
- Example: The Sanchar Saathi pre-installation mandate (2025) bypassed legislative debate and provoked objections from several States before being rolled back.
The Philosophical Basis- Digital Constitutionalism as an Evolution
- Digital constitutionalism is not a break from the past but a natural extension of constitutional values into a new technological reality. As daily life moves online, older analogue legal frameworks struggle to keep pace with new forms of digital power.
- New Power Imbalances in the Digital Age:
- The digital ecosystem has created fresh asymmetries of power that traditional checks cannot address.
- The State now holds vast data through mass surveillance systems, often justified by rising cybercrime.
- Big Tech companies also shape rights and choices — Apple’s pushback in the Sanchar Saathi episode shows how private firms can influence public policy.
- Constitutional Limits Must Operate at Many Levels:
- Constitutional protections today must work across multiple layers — within national laws, global rules like the GDPR, corporate policies, and civil society action.
- India’s response must therefore be multilevel and coordinated, not limited to courts or Parliament alone.
- Protecting Core Constitutional Principles:
- The aim is not to rewrite the Constitution but to preserve its core principles — democracy, rule of law, and rights protection — in an era of automated and data-driven governance.
- Digital constitutionalism seeks to restrain both the State and powerful private actors, keeping citizens’ rights at the centre of India’s digital future.
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Way Forward for Institutionalising Digital Constitutionalism in India
- Comprehensive Surveillance Law: Enact a modern law mandating necessity, proportionality, judicial oversight, and independent audits for all state surveillance, including facial recognition, metadata, and integrated databases.
- Strengthen Digital Personal Data Protection (DPDP) Act: Remove blanket government exemptions, enforce purpose limitation, data minimisation, and strict liability for major data breaches to align with the Justice K.S. Puttaswamy v. Union of India (2017) privacy mandate.
- Algorithmic Accountability: Mandate Algorithmic Impact Assessments, independent bias audits, and human oversight for all high-risk systems in policing, welfare, credit scoring, and public-sector decision-making.
- Independent Digital Rights Commission: Establish a statutory commission with powers to investigate violations, audit high-risk systems, and block deployment until constitutional compliance is verified.
- Judicial Expansion of Digital Rights: Recognise the Right to Explanation, Right to Human Review, and Right to Time-Bound Data Deletion as part of Article 21 of the Constitution of India, ensuring fairness and dignity in automated decisions.
- Embed Constitutional Values: Ensure all digital governance respects Articles 14, 19(1)(a), 21, 300A of the Constitution of India, and international obligations under International Covenant on Civil and Political Rights (ICCPR) Articles 17 & 19 for lawful, proportionate, and transparent interventions.
- Digital Literacy and Ethical Awareness: Promote citizen awareness to safeguard autonomy, privacy, and informed consent in the digital ecosystem.
- Technical Standards and Certification: Adopt national (Bureau of Indian Standards – BIS) or international (International Organization for Standardization – ISO) standards for high-risk artificial intelligence (AI) and biometric systems to ensure reliability before deployment.
- Cross-Border Data and Digital Sovereignty: Regulate international data flows, keeping sensitive citizen data under India’s legal jurisdiction for oversight and remedy.
Conclusion
Digital technologies are central to citizenship, shaping services, participation, and identity. As governance becomes data-driven, constitutional values like freedom, equality, and privacy must guide it. Digital constitutionalism ensures technology serves the people, not authoritarian control.
6 Dec 2025
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