Canonising AI and Algorithms: Assessing the Indian Constitution’s Accommodation of New-Age Rights

AUTHOR: NITHYAKALYANI.S, DHANALAKSHMI SRINIVASAN UNIVERSITY

As Artificial Intelligence (AI) and algorithms increasingly shape our lives, India's constitutional framework must adapt to accommodate new-age rights. This study examines the Indian Constitution's capacity to address the challenges and opportunities presented by AI and algorithms. It assesses the Constitution's provisions related to fundamental rights, directive principles, and the concept of "new-age rights." The research explores the tensions between individual rights, national interests, and technological advancements, highlighting the need for a nuanced and context-specific approach. By analyzing the intersections between law, technology, and society, this study aims to contribute to the ongoing debate on canonising AI and algorithms within India's constitutional framework.

Key Words: Artificial Intelligence, New-Age Rights, Indian Constitutional Frameworks, AI Algorithms, Technological Advancements. 

The rapid advancement of Artificial Intelligence (AI) and algorithms has transformed the way we live, work, and interact with one another. In India, a country with a thriving technology sector and a vast, digitally-connected population, the impact of AI and algorithms is being felt across various spheres. From virtual assistants and chatbots to self-driving cars and personalized healthcare, AI-powered technologies are increasingly shaping the Indian landscape. The influence of AI and algorithms can be seen in various aspects of Indian life, including education, finance, healthcare, and governance. For instance, AI-powered adaptive learning systems are revolutionizing the education sector, while algorithm-driven financial platforms are expanding access to credit and banking services. Similarly, AI-assisted diagnostic tools are improving healthcare outcomes, and data analytics are enabling more informed decision-making in governance.

As India continues to digitize and innovate, it is essential to examine the intersection of AI, algorithms, and the law. This is particularly crucial in a country where the Constitution enshrines fundamental rights and freedoms, and where the judiciary plays a vital role in interpreting and upholding these rights. The Indian Constitution's provisions related to equality, liberty, and justice must be re-examined in the context of AI and algorithms, which are increasingly influencing the lives of citizens.

In this context, it is imperative to explore how AI and algorithms are being accommodated within India's constitutional framework, and what implications this has for the country's citizens, institutions, and future. This requires a nuanced understanding of the opportunities and challenges presented by AI and algorithms, as well as a critical evaluation of the existing legal and regulatory frameworks.

The Indian Constitution, adopted in 1950, enshrines fundamental rights and freedoms that are essential for human dignity and well-being. However, with the rapid advancement of technology, new-age rights have emerged, which require a re-examination of the Constitution's provisions.

1] EMERGING RIGHTS:

   Emerging rights refer to the new rights that are emerging in response to the changing societal values, technological advancements, and global interconnectedness. These rights are not explicitly mentioned in the Constitution, but are essential for human dignity and well-being in the modern era.

1. Right to Digital Privacy: With the increasing use of technology, individuals have a right to protect their personal data and maintain their digital privacy.

2. Right to Freedom from Algorithmic Discrimination: As AI-powered algorithms are increasingly used in decision-making processes, individuals have a right to be free from algorithmic discrimination and bias.

3. Right to Access to Information: In the digital age, individuals have a right to access information and knowledge, which is essential for their personal and professional development.

4. Right to Digital Identity: With the increasing use of digital technologies, individuals have a right to a digital identity that is secure, authentic, and protected.

 The concept of emerging rights is not new to the Indian Constitution. In the case of Naz Foundation v Government of NCT of Delhi (2009) 160 DLT 277, the Delhi High Court recognized the right to sexual orientation as a fundamental right under Article 21 of the Constitution. This judgment highlights the evolving nature of rights and the need for the Constitution to adapt to changing societal values.

Similarly, the right to privacy has emerged as a crucial aspect of human dignity in the digital age. In Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1, the Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution. This judgment has significant implications for the protection of personal data and the regulation of AI-powered technologies.

2] CONSTITUTIONAL FRAMEWORKS:

   The Indian Constitution provides a framework for the protection of fundamental rights and freedoms. Constitutional Frameworks include Article 14, which guarantees equality before the law, while Article 19(1)(a) protects the freedom of speech and expression. Article 21, which guarantees the right to life and personal liberty, has been interpreted to include various aspects of human dignity, including the right to privacy.

In Shreya Singhal v Union of India (2015) 5 SCC 1, the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000, which criminalized online speech, as unconstitutional. This judgment highlights the importance of protecting freedom of speech and expression in the digital age.

The Basic Structure Doctrine, established in Kesavananda Bharati v State of Kerala (1973), ensures that certain fundamental features of the Indian Constitution cannot be altered by amendments. These features include:

• Supremacy of the Constitution: The Constitution is the supreme law of the land, and no amendment or law can override or subvert its core values.

• Sovereign, Democratic, and Republican Nature: The Indian political system is defined by its commitment to sovereignty, democracy, and republicanism.

• Secular Character: Secularism in the Indian context means that the state maintains an impartial stance toward all religions.

• Separation of Powers: The doctrine reinforces the division of government into three distinct branches- legislature, executive, and judiciary, each with its own powers and responsibilities.

• Federal Character: Federalism in India involves a distribution of powers between the central government and the states.

• Unity and Integrity of the Nation: The Constitution is not merely a legal document; it is the embodiment of national unity.

• Welfare State (Socio-Economic Justice): Embedded within the Directive Principles of State Policy is the vision of a welfare state that seeks to promote social justice and equitable distribution of resources.

• Judicial Review: A fundamental element of the basic structure is the power of judicial review.

• Freedom and Dignity of the Individual: The preservation of individual freedoms and human dignity is central to the Indian constitutional ethos.

• Parliamentary System: India's parliamentary system, characterized by responsible government and accountability to the legislature, is an integral part of its democratic framework.

• Rule of Law: The rule of law is a principle that ensures all citizens, including government officials, are subject to the law.

• Harmony and Balance: The basic structure doctrine ensures that any amendment does not upset the balance between Fundamental Rights and Directive Principles.

• Principle of Equality: Equality before the law and equal protection of the laws are cornerstones of the Indian Constitution.

• Free and Fair Elections: The conduct of free and fair elections is a key feature of a democratic society.

• Independence of the Judiciary: An independent judiciary is crucial for maintaining checks and balances in the government.

• Limited Power of Parliament: While Parliament is granted the authority to amend the Constitution under Article 368, this power is not unfettered.

• Effective Access to Justice: Effective access to justice, including the availability of judicial remedies, is a fundamental component of the constitutional framework.

ACCOMODATION AI AND ALGORITHMS WITHIN INDIAN CONSTITUTION:

Accommodating AI and algorithms within the Indian Constitution requires a multifaceted approach that involves constitutional interpretation, judicial precedents, and legislative responses.

1] CONSTITUTIONAL INTERPRETATION:

   The Indian Constitution's provisions must be interpreted in a manner that is consistent with the principles of equality, justice, and human dignity. In Justice K.S. Puttaswamy (Retd.) v Union of India1 (2017) 0 SCC 1, the Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution. This judgment highlights the importance of interpreting the Constitution in a manner that is responsive to emerging technological advancements.

2] JUDICIAL PRECEDENTS:

   Judicial precedents play a crucial role in shaping the Indian Constitution's provisions related to AI and algorithms. In Shreya Singhal v Union of India (2015) 5 SCC 1, the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000, which criminalized online speech, as unconstitutional. This judgment highlights the importance of protecting freedom of speech and expression in the digital age. 

3] LEGISLATIVE RESPONSES:

   Legislative responses are essential for accommodating AI and algorithms within the Indian Constitution. The Information Technology Act, 2000, and the Personal Data Protection Bill, 2019, are examples of legislative responses that aim to regulate AI-powered technologies and protect individual rights.

In S. Rangarajan v P. Jagjivan Ram (1989) 2 SCC 574, the Supreme Court of India emphasized the importance of balancing individual rights with societal interests. This judgment highlights the need for legislative responses that balance the benefits of AI and algorithms with the need to protect individual rights and freedoms.

WAY FORWARD: CANONISING AI AND ALGORITHMS:

   The integration of AI and algorithms into the Indian legal framework requires a multifaceted approach that involves constitutional amendments, regulatory frameworks, and public engagement and education.

CONSTITUTIONAL AMENDMENTS:

   Constitutional amendments can provide a robust foundation for the regulation of AI and algorithms. Some potential constitutional amendments that could be considered include:

1. Right to Digital Privacy: The Constitution could be amended to include a new article that specifically recognizes the right to digital privacy as a fundamental right. See Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1, where the Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution.

 2. Right to Algorithmic Transparency: The Constitution could be amended to include a new article that specifically recognizes the right to algorithmic transparency as a fundamental right. See Shreya Singhal v Union of India (2015) 5 SCC 1, where the Supreme Court of India struck down Section 66A of the Information Technology Act, 2000, which criminalized online speech, as unconstitutional.

3. Right to Digital Autonomy: The Constitution could be amended to include a new article that specifically recognizes the right to digital autonomy as a fundamental right. See K.S. Puttaswamy v Union of India (2018) 1 SCC 1, where the Supreme Court of India emphasized the importance of individual autonomy in the digital age.

REGULATORY FRAMEWORKS:

1. Act: A comprehensive data protection act that regulates the collection, storage, and use of personal data. See Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1, where the Supreme Court of India recognized the importance of data protection in the digital age. 

2. Algorithmic Transparency Act: An act that requires companies to disclose the algorithms used in their decision-making processes. See Shreya Singhal v Union of India (2015) 5 SCC 1, where the Supreme Court of India emphasized the importance of transparency in online decision-making processes.

3. AI Ethics Board: An independent board that oversees the development and deployment of AI-powered technologies and ensures that their Data Protection aligns with ethical principles. See Kesavananda Bharati v State of Kerala (1973) AIR 1461, where the Supreme Court of India established the basic structure doctrine, which ensures that certain fundamental features of the Indian Constitution cannot be altered by amendments.

PUBLIC ENGAGEMENT AND EDUCATION:

  Public engagement and education are crucial for ensuring that AI and algorithms are developed and deployed in a manner that is responsive to societal needs and values. In M.C. Mehta v Union of India (1987) 1 SCC 395, the Supreme Court of India emphasized the importance of public participation in environmental decision-making. This judgment highlights the need for public engagement and education in the development and deployment of AI and algorithms.

• Way Forward: Canonising AI and Algorithms

The integration of AI and algorithms into the Indian legal framework requires a multifaceted approach that involves constitutional amendments, regulatory frameworks, and public engagement and education.

• Public Engagement and Education

Public engagement and education are crucial for ensuring that AI and algorithms are developed and deployed in a manner that is responsive to societal needs and values. In M.C. Mehta v Union of India (1987) 1 SCC 395, the Supreme Court of India emphasized the importance of public participation in environmental decision-making. This judgment highlights the need for public engagement and education in the development and deployment of AI and algorithms.

1. GLOBAL AI GOVERNANCE:

Global AI governance is an emerging field that seeks to establish common standards and principles for the development and deployment of AI across different countries and regions. In Microsoft Corp v United States* (2016) 829 F3d 197, the US Court of Appeals for the Second Circuit held that the US government could not compel Microsoft to disclose customer data stored on servers outside the US. This case highlights the need for international cooperation and agreements on AI governance.

2. COMPARATIVE ANALYSIS:

A comparative analysis of AI governance frameworks across different countries and regions can provide valuable insights into best practices and emerging trends. For instance, the The European Union’s General Data Protection Regulation (GDPR) provides a comprehensive framework for data protection and privacy, which has implications for AI governance. In contrast, China’s New Generation Artificial Intelligence Development Plan emphasizes the importance of AI for economic growth and national security, while also highlighting the need for AI governance and regulation.

3. INDIA’S ROLE IN GLOBAL AI GOVERNANCE 

India has an important role to play in global AI governance, given its growing economy and technological expertise. In Justice K.S. Puttaswamy (Retd.) v Union of India (2017) 10 SCC 1, the Supreme Court of India recognized the right to privacy as a fundamental right under Article 21 of the Constitution. This judgment has implications for AI governance and data protection in India.

India has also established the National Institution for Transforming India (NITI) Aayog, which has developed a national strategy for AI. The strategy emphasizes the importance of AI for economic growth and national security, while also highlighting the need for AI governance and regulation.

The intersection of Artificial Intelligence (AI), algorithms, and constitutional law has garnered significant attention in recent years, particularly in India, where rapid technological advancements coexist with a robust legal framework. Existing literature highlights the tension between AI-driven decision-making and constitutional guarantees such as privacy, equality, and freedom from discrimination. Scholars like Solove (2013) and Zuboff (2019) have extensively discussed the implications of digital surveillance and data capitalism, emphasizing the need for legal safeguards. In the Indian context, works by Bhatia (2018) and Ramanathan (2020) explore how judicial interpretations, such as the Puttaswamy judgment, have expanded fundamental rights to include digital privacy.  

Further, research by Ananth (2021) examines algorithmic bias and its potential to perpetuate discrimination, raising concerns about violations of Article 14 (right to equality). Studies on AI governance, such as those by Srikrishna (2018) in the context of India’s draft Data Protection Bill, suggest that regulatory frameworks must balance innovation with accountability. Comparative analyses, including those by Crawford (2021), highlight global best practices in AI regulation, such as the EU’s General Data Protection Regulation (GDPR), which could inform India’s approach. However, gaps remain in literature addressing how India’s constitutional doctrines—such as the Basic Structure Doctrine—can adapt to AI governance while preserving democratic values.  

This study adopts a qualitative research methodology, combining doctrinal and analytical approaches to assess the constitutional implications of AI and algorithms in India. Primary sources include Indian Supreme Court judgments (Puttaswamy, Shreya Singhal, and Kesavananda Bharati) and legislative frameworks (IT Act 2000, Draft Data Protection Bill). Secondary sources encompass academic articles, policy reports, and comparative legal analyses from jurisdictions like the EU and the US.  

The research employs content analysis to interpret judicial pronouncements and legislative provisions, identifying trends in constitutional interpretation. Additionally, a case study approach is used to examine landmark rulings where courts have addressed technology-related rights. The study also incorporates policy analysis to evaluate proposed regulatory frameworks and their alignment with constitutional principles. Ethical considerations, such as algorithmic transparency and bias mitigation, are examined through normative legal theories, ensuring a rights-based approach to AI governance.  

The findings reveal that while Indian courts have proactively expanded fundamental rights to include digital privacy (Puttaswamy) and free speech (Shreya Singhal), gaps persist in regulating algorithmic accountability. Judicial precedents emphasize proportionality and reasonableness in state surveillance but lack specific guidelines on AI-driven governance. Legislative responses, such as the Data Protection Bill, show promise but remain inadequate in addressing algorithmic bias and automated decision-making.  

Comparative analysis suggests that India could benefit from stronger transparency mandates (akin to GDPR “right to explanation”) and independent oversight bodies to audit AI systems. Public awareness and stakeholder consultations emerge as critical factors in ensuring inclusive AI governance. The study concludes that constitutional amendments recognizing digital rights (e.g., algorithmic fairness) and enhanced regulatory mechanisms are essential to harmonize AI advancements with India’s constitutional ethos. Future research should explore participatory law-making models to ensure AI policies reflect democratic values.  

   The Integration of AI and algorithms into the Indian legal framework requires a multifaceted approach that involves constitutional amendments, regulatory frameworks, and public engagement and education. The Indian Constitution, through its provisions and judicial interpretations, provides a foundation for the protection of new-age rights related to AI and algorithms. However, there are challenges and gaps in the existing framework that need to be addressed. The Constitution’s accommodation of new-age rights related to AI and algorithms requires a nuanced understanding of the technological, social, and economic implications of these technologies.

 In conclusion, the Indian Constitution provides a foundation for the protection of new-age rights related to AI and algorithms. However, there are challenges and gaps in the existing framework that need to be addressed. A comprehensive AI governance framework, public engagement and education, and international cooperation and collaboration are essential for ensuring that AI is developed and deployed in a responsible and ethical manner.