This article is written by Mustafa Khan of Integral University, Lucknow, an intern under Legal Vidhiya
This exploration navigates the complex terrain of digital constitutionalism in India, dissecting government surveillance practices, the legality of surveillance tools, and data privacy frameworks. From historical legislations like the Telegraph Act, 1885, to contemporary controversies surrounding the Pegasus spyware and the introduction of the Personal Data Protection Bill, 2019, the article engages with the evolving legal landscape. Emphasizing the importance of balancing technological progress with constitutional rights, the analysis calls for comprehensive legal frameworks, vigilant oversight, and digital literacy. It is a clarion call for legal professionals, policymakers, and citizens to actively contribute to shaping a future where digital advancements harmonize with constitutional liberties.
Constitutionalism, Digital Technology, Artificial Intelligence, Ethical Considerations, Professional Development.
In the intricate interplay between constitutional principles and the ever-evolving landscape of digital technology, this legal discourse undertakes a profound exploration into government surveillance, the legality of surveillance tools, and data privacy within the Indian context. Delving into the complex terrain of digital constitutionalism, the analysis dissects governmental surveillance practices, scrutinizes the legality surrounding surveillance tools, and navigates the intricate frameworks governing data privacy. Traversing through the historical corridors of legislations like the Telegraph Act of 1885 to grappling with contemporary controversies involving technologies such as the Pegasus spyware, this article meticulously engages with the dynamic evolution of the legal landscape.
Within the context of this exploration, a poignant emphasis is placed on the delicate equilibrium required between technological progress and constitutional rights. The analysis advocates for the establishment of comprehensive legal frameworks, underscores the need for vigilant oversight mechanisms, and highlights the imperative role of digital literacy. This discourse not only serves as an intellectual journey through legal intricacies but also issues a compelling call to action. It beckons legal professionals, policymakers, and conscientious citizens to actively contribute to the sculpting of a future where the relentless march of digital advancements seamlessly aligns with the enduring principles of constitutional liberties.
This legal research article endeavors to explore the intricate dynamics between constitutionalism and digital technology, with a dual-pronged objective. Firstly, it aims to critically examine the evolving relationship between constitutional principles and the integration of digital technology, particularly focusing on the implications of Artificial Intelligence (AI) on the interpretation and application of constitutional norms. Secondly, the research seeks to identify and analyze the ethical considerations surrounding the intersection of constitutionalism and digital technology, shedding light on potential challenges and ethical frameworks relevant to the digital age. Through a comprehensive analysis of legal precedents, scholarly works, and practical implications, this study aims to contribute valuable insights into the evolving landscape where constitutional principles intersect with the advancements in digital technology.
CONSTITUTIONALISM AND ITS INTERSECTION WITH DIGITAL TECHNOLOGY
The idea behind constitutionalism, growing over time, boils down to having a “Limited Government.” It’s all about the importance of having a government but also making sure it doesn’t have too much power. According to Michel Rosenfeld, modern constitutionalism means putting limits on what the government can do, making sure laws are followed, and protecting our basic rights. Giovani Sartori adds that constitutionalism says we need to control the government’s power, echoing McIlwain’s idea that it stops the government from doing whatever it wants. This constitutionalism concept, starting with the Magna Carta and explained by scholars like Carl Friedrich, sees a government made by and for the people, with limits to stop power misuse. Now, when we bring digital technology into this, it adds a twist. Digital tech, with all its changes, brings both good things and challenges to constitutionalism. As we deal with this, we need to see how our constitutional principles fit into the digital age, where limits on the government now go beyond the usual into the complex world of the internet.
Constitutionalism, particularly in the Indian context, stands out for its inclusive and cosmopolitan character. It’s not just about granting powers to various government organs but also about putting essential limitations on those powers. Dr. B.R. Ambedkar’s idea of constitutional morality is pivotal in this scenario, emphasizing a politics of restraints to ensure a government that is both free and peaceful. In India, constitutional morality takes a distinctive form, rejecting claims that try to single-handedly represent the people, fostering a pluralistic approach integral to its essence. The rejection of hero worship aligns with the constitutional commitment to prevent any branch of government from declaring exclusive representation of the people.
The Indian constitutional journey involves a nuanced interplay between the backward-looking aspects—such as constitutional texts and founders—and the forward-looking aspects, which engage in an ongoing conversation about the social contract and social justice. This unique blend of constitutionalism weaves a narrative of dynamic governance, where the cosmopolitan nature and the adherence to constitutional morality create a delicate equilibrium, ensuring that government powers are wielded responsibly and in the interest of the diverse Indian populace.
Technology’s non-stop march has completely changed how we live. From steam engines to today’s digital revolution, tech is a constant in our lives. We’ve seen big moments, from steam engines to computers and the internet, connecting the world. Communication, once tied to geography, has shifted from telegraphs to instant talks on social media.
In this tech-filled world, the idea of digital constitutionalism becomes really important, especially in lively places like India. Digital constitutionalism is about how our basic rights fit with the digital world, balancing progress and protection. Looking into this, we see that digital tech is both a good thing and a challenge for our rights. On the positive side, it boosts our basic rights. Information, once locked in libraries, is now at our fingertips. Digital platforms give everyone access to knowledge, making for a more informed society. Also, tech has changed education, breaking barriers and giving access to learning beyond the usual. Our right to say what we think finds new ways online, letting us talk globally. So, digital tech isn’t just a tool; it’s a helper, making our rights stronger today.
But, there are challenges too. The progress of tech brings the possibility of government spying, a risk to our privacy in the law. In the case of Binoy Viswam v. Union of India and Others (2017 SCC 759), the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, came under scrutiny. The central question before the Supreme Court was whether the mandatory linking of Aadhaar for various services was constitutionally permissible. In its decision, the Court held that linking Aadhaar is constitutional concerning subsidies and benefits, albeit subject to specific conditions and safeguards aimed at protecting privacy and data. This ruling struck a delicate balance between the state’s interest in efficient service delivery and the need to safeguard individual privacy rights, shaping the legal landscape surrounding Aadhaar linkage in India. The tons of data moving online make us worry about privacy, making us think hard about balancing security and our own rights. While online spaces let us speak up, they can also be places for censorship, testing our freedom of speech. These challenges show we need to really understand how digital tech affects our rights, asking for smart rules and control.
In this dance between moving forward and staying safe, tech’s evolution adds a new part to our rights story. As we navigate this digital world, the idea of digital constitutionalism becomes a must, helping us deal with the good and bad of tech today. This journey, pushed by tech always getting better, asks us to really think about how tech and our rights fit together, especially in India.
FREEDOM OF EXPRESSION IN THE DIGITAL AGE
The digital era has brought about a time of unparalleled connectivity, shaking up our usual ideas about the freedom of expression protected by Article 19(1)(a) of the Indian Constitution. This crucial right, vital for democracy, now faces fresh challenges and complexities in the world of digital platforms. In the case of Anuradha Bhasin v. Union of India and Others (2020 SCC 3637), the focus was on the restrictions imposed on internet access and communication services in Jammu and Kashmir subsequent to the abrogation of Article 370. At the heart of the matter was the question of whether the indefinite suspension of internet services constituted a breach of fundamental rights. The Court, in its decision, unequivocally asserted that the prolonged suspension of internet services in Jammu and Kashmir amounted to a violation of the fundamental rights to freedom of speech and expression. The judgment underscored the indispensable role of the internet in facilitating the exercise of various fundamental rights, reinforcing the notion that restrictions on digital communication must be proportionate and in adherence to constitutional principles. This ruling set a crucial precedent regarding the protection of digital rights in the context of governmental actions affecting internet services.
While these platforms give people a strong way to voice their thoughts, they also bring about tricky issues like hate speech, misinformation, and online harassment. In the case of Ramlila Maidan Incident v. Home Secretary, Union of India (2012 SCC 51), the matter revolved around the Delhi Police’s deployment of excessive force during a peaceful protest at Ramlila Maidan. The central issue before the Court was whether the police’s use of such force amounted to a violation of the fundamental rights of the protestors. In its verdict, the Court unequivocally held that the use of excessive force did, indeed, infringe upon the fundamental rights of the protestors. The judgment underscored the significance of peaceful protests in a democratic society and emphasized the need for law enforcement to exercise proportionate force. This decision served as a precedent affirming the rights of citizens to engage in peaceful demonstrations without facing unwarranted aggression from authorities, thereby reinforcing the principles of democratic dissent and civil liberties.
Fundamental Right to Freedom of Expression: Article 19(1)(a) is like a guiding light, saying that every citizen has the right to freely share their thoughts and opinions. In the digital age, this right goes beyond physical borders, giving people online spaces to speak their minds. But, this wide-reaching digital world also makes us think about the boundaries and responsibilities that come with this freedom.
Digital Platforms: A Double-Edged Sword: Digital platforms, like social media, are like today’s public squares, making voices louder and allowing global conversations. But, with this new freedom, there are challenges. These platforms, being unfiltered, bring up problems like hate speech, pushing the limits of what’s considered okay to say. Misinformation, spreading quickly, makes it hard to know if the information online is accurate. Also, the ability to stay anonymous online leads to online harassment, making us rethink how we balance freedom of expression with protecting individuals in the digital age.
GOVERNMENT SURVEILLANCE: AN OVERVIEW
When it comes to keeping an eye on communications in India, two main laws are in play: the Telegraph Act of 1885 and the Information Technology Act of 2000. The Telegraph Act mostly deals with listening in on calls, letting the government do this under certain conditions that follow the rules in the Constitution about free speech. These conditions include worries about India’s sovereignty, state security, good relations with other countries, public order, or stopping someone from encouraging others to commit a crime. It’s important to note that this legal listening in has limits, especially when it comes to journalists, and these limits were looked at closely in the important People’s Union for Civil Liberties v Union of India [(1997) 1 SCC 301] case in 1996, where the Supreme Court found issues with how safeguards were set up. Now, looking at the Information Technology Act of 2000, this law broadens the scope of keeping an eye on things by covering all electronic data transmission. Section 69 of the IT Act increases the powers by allowing the interception, monitoring, and decoding of digital information “for the investigation of an offence,” doing away with the earlier condition in the Telegraph Act. In the landmark case of Shreya Singhal v. Union of India (2015 SCC 51), heard by the Supreme Court of India in 2015, the petitioner contested the constitutionality of Section 66-A of the Information Technology Act, 2000, asserting that it infringed upon the fundamental right of freedom of speech and expression enshrined in Article 19(1)(a). The respondent, in defense of Section 66-A, prompted a critical examination of whether its restrictions on freedom of speech and expression were constitutionally sound. The Court, in its decision, declared Section 66-A to be unconstitutional, underscoring the paramount importance of safeguarding freedom of speech and expression. Furthermore, the Court provided nuanced guidelines for evaluating the constitutionality of Section 69-A and affirmed the validity of the Information Technology (Intermediary Guidelines) Rules, 2011. This judgment marked a significant stride in upholding constitutional principles while navigating the intricacies of regulating speech in the digital age. This change broadens the government’s authority, letting them keep an eye on things without needing a public emergency or it being in the interest of public safety. These legal frameworks form the basis for government surveillance in India, showing the careful balance between security needs and individual rights.
CHALLENGES AND CONCERNS IN INDIAN SURVEILLANCE PRACTICES
As India grapples with the booming IT sector, surveillance technologies have advanced, giving rise to concerns regarding privacy and legal frameworks. The rise of agencies like the Central Monitoring System, National Intelligence Grid, and others indicates a significant venture into surveillance across cyberspace, telephones, emails, and personal messages. However, the article points out significant gaps in safeguarding these bodies, prompting questions about their powers, functions, and the security of the data they gather. The potential misuse of information by private entities for political or terrorist purposes poses a looming threat to public privacy and safety.
The emergence of Pegasus, a sophisticated spyware developed by the NSO Group, has brought the legality of state surveillance to the forefront. Marketed exclusively to national governments, Pegasus allows remote and covert extraction of data from mobile devices, raising serious concerns about privacy violations. The revelation of the Pegasus Project in July 2021, targeting 50,000 phone numbers globally, including those of Indian political leaders, journalists, activists, and students, led to numerous petitions in the Supreme Court of India. The ongoing judicial probe, exemplified by the trial of Manohar Lal Sharma vs The Prime Minister AIR 2021 SC 5396, delves into the intricacies of Pegasus spyware and assesses the legality of state surveillance practices in India.
Following the Pegasus scandal, Union I.T. Minister Ashwini Vaishnaw strongly defended government surveillance in Parliament, citing checks and balances provided by the Telegraph Act, 1885, IT Act, 2000, and IT Rules, 2009. Despite assurances, the government denied allegations of using the Pegasus malware for domestic surveillance, intensifying the debate on the delicate balance between national security imperatives and individual privacy rights. The establishment of entities like the National Intelligence Grid, Crime and Criminal Tracking Network System, Central Monitoring System, and others reflects India’s proactive stance in enhancing security. However, the lack of transparency regarding the powers of these bodies and the absence of a clear legal framework for surveillance pose challenges. The need for robust policies governing the IT sector and safeguarding individual privacy remains a pressing issue, especially as the country navigates the complexities of governance in the digital age.
The scenario of data privacy in India witnessed a significant shift with the introduction of the Personal Data Protection Bill, 2019 (“2019 Bill”). Inspired by the principles of the General Data Protection Regulation (GDPR) and a landmark Supreme Court judgment recognizing the right to privacy as fundamental, the bill aims to safeguard individuals’ privacy rights in personal data processing. In the case of Justice K.S. Puttaswamy and Another v. Union of India and Others, a nine-judge bench was convened to deliberate on the existence of the fundamental right to privacy under the Indian Constitution, challenging the precedent set by the decisions in M P Sharma and Kharak Singh. The central issue at hand was whether the right to privacy should be recognized as a fundamental right within the constitutional framework. In a landmark decision, the Supreme Court ruled that the right to privacy is indeed a fundamental right, intrinsic to the notions of freedom and liberty. The Court emphasized its status as an essential aspect of the right to life guaranteed under Article 21 of the Indian Constitution. This judgment marked a significant milestone in affirming the constitutional protection of privacy as a fundamental and integral component of individual rights in India.
One key aspect of the 2019 Bill is its position on territorial applicability. Unlike its predecessor, the 2018 Bill, the current version allows the Central Government to exempt the processing of personal data of individuals outside India by entities incorporated under Indian law. Although this exemption awaits notification by the Central Government, it addresses concerns of overreach, aligning with global practices and benefiting the outsourcing industry.
However, challenges persist regarding the vague language surrounding the exercise of jurisdiction over entities not located in India. Clarity is needed to precisely define the scope of the 2019 Bill and determine its applicability to businesses operating in India. A notable addition is the introduction of ‘social media intermediaries’ within the 2019 Bill. Defined as entities primarily facilitating online interactions, these intermediaries face additional scrutiny. The Central Government holds the power to designate them as ‘significant data fiduciaries,’ subjecting them to heightened responsibilities, including audits, record maintenance, data protection impact assessments, and the appointment of data protection officers.
To combat fake news and enhance accountability, significant data fiduciaries are mandated to enable voluntary account verification for users in India. While this may curb misinformation, concerns arise about operational costs and the lack of clarity on verification procedures and consequences. The ongoing debate revolves around government access to private data and the imperative need for robust safeguards. The 2019 Bill’s provisions aim to strike a balance between national security and individual privacy. However, concerns persist regarding potential misuse. A critical examination of the safeguards in place is necessary to ensure a delicate equilibrium, preserving privacy rights while addressing legitimate security concerns.
As India navigates the evolving landscape of data privacy, the effective implementation and continuous refinement of the 2019 Bill will play a pivotal role in shaping the nation’s approach to protecting personal data in the digital age.
In the intricate interplay between digital technology and constitutional rights, the examination of government surveillance, legality of surveillance tools, and data privacy in India reveals a delicate balance that demands thoughtful consideration. As legal professionals, policymakers, and citizens navigate this dynamic landscape, the importance of crafting robust legal frameworks becomes evident. The analysis of laws like the Telegraph Act, 1885, and the Information Technology Act, 2000, underscores the need for evolving regulations that not only empower the government for legitimate purposes but also ensure stringent safeguards against potential misuse. The ongoing judicial probe into the Pegasus spyware case and the introduction of the Personal Data Protection Bill, 2019, signify critical steps toward safeguarding individual privacy. However, the efficacy and clarity of these measures warrant continuous scrutiny.
To actively contribute to the future of digital constitutionalism in India, legal professionals must advocate for comprehensive and clear legal frameworks that balance technological innovation with constitutional protections. Policymakers play a pivotal role in navigating the complexities of the digital landscape, ensuring that legislation evolves to meet the challenges posed by advancing technology. Simultaneously, an informed citizenry, equipped with digital literacy, becomes a powerful force in shaping responsible practices. The future lies not only in legislative measures but also in collective efforts to create a narrative where technological advancements harmonize with constitutional rights. It is a shared responsibility to weave a future where the digital landscape enriches, rather than encumbers, the constitutional ethos.
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 Udbhav Tiwari The Design & Technology behind India’s Surveillance Programmes The Centre For Internet& Society Jan 20, 2017 Date of access 14.01.24 The Design & Technology behind India’s Surveillance Programmes — The Centre for Internet and Society (cis-india.org)
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