Abstract
The growth of digital platforms, has now transformed the relationship between the corporations, individuals and the state. Big techs or companies like Meta, Google, and Amazon etc. have an immense influence over the public, information and the personal data. This control over the digital infrastructure has raised constitutional concerns upon privacy, equality, freedom of speech and also the accountability of democracy. As stated that the traditional constitutional frameworks were designed solely for the regulation of the state’s actions; however now there is a concentration of power in the private digital corporations which has challenged this assumption and demanded for generation of new constitutionalism which is known as the “digital constitutionalism”. When we talk about digital constitutionalism it seeks to extend the values of the constitution into the digital sphere by ensuring that the technological governance remains constant with the principles of democracy, transparency, accountability and it also protects the fundamental rights of the individuals.
In India the judiciary has progressively acknowledged the importance and significance of constitutional protections in the digital era through landmark rulings such as Justice KS Puttaswamy versus union of India[1] and Anuradha Bhasin versus union of India. Initiatives such as the Digital Personal Data Protection Act 2023, along with the regulatory actions by the Competition Commission of India are also a reflection of an increase commitment for the regulation of digital monopolies and also for preserving the constitutional liberties.
This paper explores the rise of digital constitutionalism as a regulatory framework for overseeing big tech through the lens of fundamental rights which are given under the constitution of India. It’s scrutinizes constitutional provisions, statutory frameworks and judicial precedents and also establishes recommendation for an efficient digital governance system.
Key words – Digital constitutionalism, Big tech, Fundamental rights, Data protection, Digital governance, Privacy, Data protection.
Introduction
The 21st century has experienced an unprecedented digital transformation. The Internet has become essential for various aspects such as education, employment, governance, commerce and also political engagement. Digital platforms have now progressed from being a simple intermediary to a powerful entity that can significantly impact social behavior economic activities and also the functions of the democracy these corporations have extensive personal data control over the information of its users, influencing public through algorithms and it also serves as a private regulator of online expressions.
Historically, constitutional law concentrated on limiting or curbing the governmental authorities. The fundamental rights enshrined in Part 3 of the constitution of India were primarily enforceable against a state which was outlined under the Article 12. However, the emergence of big tech has shifted the power dynamics of the constitution. Currently private corporations or big tech possesses the ability to influence freedoms that were once predominantly threatened by governmental actions.
This digital development has posed a critical question among the people that, can constitutional values endure if the most influential entities in societies are private digital corporations and not the governmental bodies? The response to such question has been emerged through the concept of digital constitutionalism. Digital constitutionalism pertains to the application of constitutional principles such as liberty equality human dignity and also democratic governance within the digital contexts. It also aims to ensure that technological authority remains bound by constitutional constraints and also is backed by constitutional provisions.
In India the relevance of digital constitutionalism has seen a growth as digital platforms have increasingly affected the rights which are safeguarded under the articles 14, 19 and 21 of the constitution, issues surrounding privacy, Internet shutdowns, surveillance and data monopolies have placed constitutional values in direct opposition to the technological governance.
Core Principles of Digital Constitutionalism
- Rule of law
All the digital platforms must conduct their activities in a clear, predictable and transparent way. Users shall know -:
- Why their content was removed.
- Why accounts were suspended
- How those algorithms prioritize information.
- What personal data was collected?
Opaque decision making violates the principles of legal certainty and accountability.
- Human Dignity
The foundation of constitutional governance is formed through human dignity.
Digital systems shall-:
- Respect personal autonomy
- Prohibit exploitation of user data
- Ensure consent is voluntary.
Article 21 defines the right to personal or human dignity and it also extends to digital environments.
- Accountability
Big tech corporations often have extraordinary influence yet often evade democratic scrutiny.
The digital constitutionalism calls for-:
- Autonomous evaluations
- Supervision by regulatory bodies
- Review by judiciaries
- Transparency reports
- Democratic governance
Digital platforms have now been evolved into contemporary public squares.
Their governance must uphold the following-:
- The right to freedom of speech
- Political participation
- Diversity in opinions
- Democratic dialogue
Significance of Puttaswamy for digital constitutionalism
The judgment established that-:
- Citizens shall possess the right over their personal data and information.
- Legal authorization for the surveillance
- Digital technologies shall uphold constitutional values and principles.
- Data management must include the considerations of necessity and proportionality.
Research Methodology
This paper is of descriptive nature and the whole research is based on secondary sources for the extensive analysis of the digital constitutionalism and regulating big techs in India. Secondary sources of information like landmark judgments, books, and websites are used for the research.
Review of Literature
The rise of digital constitutionalism has considerably increased the academic discussion regarding the relevance of constitutional values in the digital contexts. Traditionally constitutional law focused on reducing the state powers and protecting citizens against arbitrary actions of Government and its interfering. However, the rise of big Tech corporations such as Meta, Amazon, Apple etc, have significantly altered this whole procedure. These big Corporations have increasingly influenced freedom of speech, privacy, expression and economic participation.
As a result the legal Scholars have explored whether these constitutional values and principles represented in article 14, 19 and 21 of the Constitution of India should be applied to digital platforms and shall regulate private bodies.
The current body of literature primarily focuses on the following themes-:
- digital constitutionalism as a constitutional theory
- privacy and data protection
- freedom of speech within the digital spaces regulation of platform authorities
- constitutional implications on artificial intelligence
Edoardo Celeste[2], who defines digital constitutionalism as the process through which the constitutional values go parallel to digital technologies and online governance systems. According to him, constitutional principles such as rule of law, transparency, accountability and it must guide the regulation of digital spaces. His work is highly relevant to Article 14 and 21 of the constitution, which protects and promotes fairness, equality, and personal liberty. His analysis prohibits arbitrariness and protects personal dignity and autonomy.
One of the most central pillars of the digital constitutionalism is Privacy. The most impactful contributions in these areas have come from Julie E Cohen, Neil Richards and Daniel Solove. Julie Cohen[3] and her work directly relates to the Article 21 which includes privacy, dignity and autonomy. Cohen’s research supports that corporate digital surveillance may hamper constitutional liberties and also liberties. Neil Richards also contended that excessive surveillance induces a chilling effect on freedom of both speech and expression which in turn deters individuals from openly sharing their views and feelings. His work has therefore connected Article 21 and Article 19(1) (a).
Gautam Bhatia[4] argues that the Indian constitutional rights must evolve in response to shifting social and technological landscapes. His research also provides a significant framework for comprehending how constitutional principles can tackle the challenges introduced by digital technologies.
Rise of big tech as a constitutional challenge
The rise of platform power, Major technology firms dominate essential digital infrastructures. These include social media platforms search engines digital marketplaces application stores and like traditional corporations digital platforms benefit from network effects data concentration algorithmic governance.
Fundamental rights as tools for regulating big tech.
Article 14 defines equality before law; it states that the state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India however in digital constitutionalism it argues that when digital platforms exercise functions publicly constitutional values of equality shall guide their actions.
E. P. Royappa versus state of Tamil Nadu[5],
The Supreme Court held that arbitrariness and equality are mutually exclusive justice bhagwati famously observed that equality is always antithetic to arbitrariness. Article 19 (1) (a) guarantees freedom of speech and expression. Digital platforms have now become a significant venue for exercising this particular right Social media platforms functions as a public forum, a political discussion space and where news is distributed therefore, arbitrary content can surely affect the freedom of speech and also the freedom to express one’s views.
Shreya Singhal versus Union of India[6]
The Supreme Court struck down section 66 A of the information technology Act 2000. The court held that vague restrictions on online speech violated the article 19(1) (a) of the constitution, this decision remains the constitutional foundation of digital free speech in India. Article 19 (1) (g) states freedom of trade and profession.
Digital platforms also influence market access e commerce participation, business opportunities etc. App store restrictions marketplace policies Mein directly affect all the businesses.
Constitutional concerns tent to arise regarding economic freedom and fair competition when any dominant platform discriminates against competitors on the basis of digital platforms or anything.
Article 21 states right to life liberty and privacy
Estates that no person shall be deprived of his life or his or her personal liberty accept anything established by law
The Supreme Court has interpreted the article and has included the following
- autonomy,
- dignity
- Privacy etc.
The above rides form a constitutional foundation of this digital constitutionalism.
Horizontal application of the fundamental rights and the constitutionalization of private power.
The Indian constitution already recognizes some of the horizontal dimensions of write such as article 15 to which prohibits discrimination by private entities regarding to the access of public spaces article 17 which abolishes untouchability against private individuals and article 23 which prohibits trafficking and forced labour. One of the biggest challenges presented by big tech is that the fundamental rights given under the constitution of India were primarily intended to govern the state actions rather than dose of private entities. Article 12 of the constitution clarifies the definition of state which typically includes governmental authorities and state instrumentalities. As a result constitutional remedies given under article 32 and 226 have been traditionally aimed at addressing only governmental infringements of rights.
Nevertheless, digital platforms today possess unprecedented power over citizens like the social media companies determine what the information the users must see, ecommerce platform always influence consumer choices and preferences, search engines have now affected the access to knowledge and most importantly the digital payment systems have now shaped economic participation. This phenomenon is known as constitutionalization of private power.
Internet access as a constitutional right
Evolution of the right, The Internet has now become essential for employment education healthcare access to governments services etc. Without Internet access the individuals will effectively excluded from the modern society. Through this the courts have now increased the recognition of Internet access and have understood that it is linked to the constitutional freedoms.
Anuradha Bhasin versus Union of India[7]
the Supreme Court held that freedom of speech and expression includes communication through the Internet also the code further recognized that the online business activities are now protected under the article 19 (1) (g) and it also stated that unreasonable Internet shutdowns are impermissible.
Information technology Act 2000[8]: Constitutional relevance
The main purpose of this act was is to legislate the comprehensive cyber law in India.
This act addresses the following-:
- cyber crime
- digital signatures
- Electronic governance and any liability regarding the digital platform.
Section 69A allows the government to block any online content under the following circumstances:
- When there’s danger to the sovereignty and integrity of India
- Security of the state
- Ham to the public order.
Digital personal Data Protection Act, 2023[9]: India’s data constitutionalism framework.
The acknowledgement of privacy as a fundamental right in India has established a constitutional duty for the state to implement a comprehensive data protection framework. This led to the creation of the digital personal Data Protection Act of 2023, which marks India’s inaugural legislation specifically addressing the processing of personal data through the digital platforms. This act aims to balance the following-:
- individual privacy rights
- innovation and creation
- economic development
- digital governance
- State interests etc.
Significance for big tech regulation
The act imposes a proper obligation upon the large digital corporations to follow the following-:
- Ensure lawful processing
- to implement security safeguards
- data breach notification
- Maintain proper accountability.
This signifies a crucial advancement in the digital Constitutionalism as it aligns data driven models of business with the constitutional values and principles.
Google Android case[10]
In this case Google mandated that Smartphone manufacturers utilizing Android must preinstall Google search Chrome browser Google Play store. CCI determined that Google possesses a significant market power exploited its Android dominance in the market and also limited competition. The Commission enforced considerable fines and mandated corrective actions.
This case illustrates how market dominance can indirectly impact the consumer independence access to information and also the economic liberty. Digital constitution realism acknowledges that the concentration of technological authority can threaten the constitutional principles even in the absence of direct state environment.
Google Play Store Billing Case[11]
The issue was that the investigation focused on Google’s compulsory billing policies that mandatory the app developers to utilise the Google Play billing system. The developers contended that it was diminishing business economy increased expenses and it also Limited Innovation and creation.
The CCI determined that Google action constituted and abuse of its dominant position as per the competition act of 2002. This case signifies how platform operates can wield gate keeping authority over the economic opportunities. Such anti competitive actions raise implications for principals of fair competition, article 19(1) (g) and also the economic freedom.
WhatsApp Privacy Policy Investigation[12]
In 2021 WhatsApp made significant modification to its privacy policy regarding data transfer and sharing with Meta. These modifications part concerns about user content, data sharing, market influence and most importantly about privacy.
The constitutional questions which were significant were as follows-:
- whether the consent provided was truly voluntary
- whether users had substantial control over their personal data
- Whether network effects limited users’ access to other alternatives.
This case illustrates that breach of privacy can raise concerns regarding-:
- Market competition
- Consumer Protection
- Mainly about constitutional values.
Suggestions/Recommendations
- Acknowledgement of major technology firms as constitutional entities. This recognition what guarantee that the governance of these platforms adheres to principles of freedom of expression, privacy and all the articles like 14, 19 and 21.
- Enhancing the Digital Personal Data Protection, so that it safeguards more effectively the right to privacy mentioned in the Article 21 of the Constitution.
- Reinforcing competition law. The Competition Commission of India should be granted the authority to oversee gatekeeper platforms, ensure any anti competitive behaviour and encourage data portability and insure fair competition.
Research gaps and future Scope
Despite the increase in body of literature on digital constitutionalism, several significant research gaps are still existed for this digital platform and there are some future scopes that are to be kept in mind when constitutionalism of the digital platform takes place, some are as follows-:
Firstly, India has primarily concentrated on issues of state surveillance and privacy while there has been a less focus on the constitutional impact of governance by private platforms. Future enquiry shall access whether leading digital platform ought to be held to constitutional standards applicable to public authorities also.
Secondly, the constitution has to understand that the artificial intelligence is still in its infancy. There is a scarcity of research on the relevance of articles 14, 19 and 21 in relation to the generative AI platforms. Subsequent studies shall be done so to explore how constitutional values such as procedural fairness and non arbitrariness can be applied to regulate these AI systems.
Thirdly, the connection between competition law and the constitutional rights guarantees investigation for any Anti- market behavior performed in the business in the digital platform. Future research can examine how market dominance impacts autonomy freedom of expression and privacy.
Lastly, the rise of block chain governance frameworks, virtual reality settings and metaverse platforms have not yet thoroughly examined and future academic work must compel with these advancements to ensure that constitutional values adapt and also progress with the technology advancements.
Conclusion
The rise of digital technology has significantly changed the Dynamics between individuals, corporations and the state. The conventional constitutional Framework was primarily established to regulate government authority and safeguard citizens against any arbitrary actions by the state. These digital platforms have now evolved beyond mayor commercial entities them now at as gatekeepers of information regulators of speech and expression controllers of personal data etc. Historically, constitutional law concentrated on limiting or curbing the governmental authorities. The fundamental rights enshrined in Part 3 of the constitution of India were primarily enforceable against a state which was outlined under the Article 12. However, the emergence of big tech has shifted the power dynamics of the constitution. Currently private corporations or big tech possesses the ability to influence freedoms that were once predominantly threatened by governmental actions. Through these changes the notion of digital constitutionalism has emerged and revolutionized this concept aims to ensure that the constitutional principles and values remain relevant and constant even though and increase of digital era. Principal such as Liberty equality transparency and democratic government to be included into online contacts also digital constitutionalism acknowledges that threats to constitutional rights and no longer solely the domain of governments but can also come from the influential private entities. Nevertheless, digital platforms today possess unprecedented power over citizens like the social media companies determine what the information the users must see, ecommerce platform always influence consumer choices and preferences, search engines have now affected the access to knowledge. The landmark judicial ruling have confirmed that privacy is a fundamental right ,safeguards online speech from arbitrary actions and has recognized the constitutional importance of internet access. The effectiveness of digital constitutionalism will ultimately determine whether technology upholds constitutional values and gradually undermines the rights and freedom that constitutions are intended to protect.
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NAME- GAURI PATHAK
COLLEGE- AMITY UNIVERSITY, RAIPUR
BATCH- 2022-2027
[1] Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
[2] Edoardo Celeste, Digital Constitutionalism: Mapping the Constitutional Response to Digital Technologies, 6 Irish J. Eur. L. 1, 3–8 (2019).
[3] Julie E. Cohen, Between Truth and Power: The Legal Constructions of Informational Capitalism 89–112 (Oxford Univ. Press 2019).
[4] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts 201–223 (HarperCollins India 2019). Gautam Bhatia, Horizontal Rights: An Institutional Approach, 1 Indian L. Rev. 1, 10–18 (2017).
[5] E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
[6] Shreya Singhal v. Union of India, (2015) 5 SCC 1.
[7] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
[8] Information Technology Act, No. 21 of 2000, §§ 66A, 69A (India).
[9] Digital Personal Data Protection Act, No. 22 of 2023 (India).
[10] In Re: Android Mobile Device Ecosystem, Competition Commission of India, Case No. 39 of 2018 (Oct. 20, 2022).
[11] XYZ v. Google LLC, Competition Commission of India, Case No. 07 of 2020 (Oct. 25, 2022).
[12] In Re Updated Terms of Service and Privacy Policy for WhatsApp Users, Suo Motu Case No. 01 of 2021 (CCI).