Digital Constitutionalism and Fundamental Rights: A Contemporary Legal Analysis

Author: Vivek Kumar Rajbhar, IILM University

In the age of the internet, digital platforms play a central role in how individuals communicate, access information, and exercise their rights. This research explores how constitutional principles, particularly fundamental rights, are applied and challenged in the digital space. As digital technologies evolve, new legal concerns arise, especially regarding freedom of speech, privacy, equality, and access to information. This paper presents a simplified yet comprehensive analysis of Digital Constitutionalism—a framework that aims to apply constitutional values in the digital realm. It examines landmark Indian cases, the role of private tech companies, and global legal developments, concluding with recommendations for balancing digital freedom and regulation.

Keywords: Digital Constitutionalism, Fundamental Rights, Freedom of Speech, Privacy, Internet Regulation, Indian Constitution

The 21st century has seen an unprecedented surge in the use of digital technologies. From communication and education to banking and governance, digital platforms have become integral to modern life. However, this digital transformation also brings significant legal and constitutional challenges. Rights that were once applied to physical spaces now face tests in the virtual realm.

The term Digital Constitutionalism refers to the effort to uphold constitutional values—such as freedom of speech, privacy, and equality—in the digital environment. This paper seeks to understand how these principles are being shaped and safeguarded in the age of the internet, especially in the Indian context.

What is Constitutionalism?

Constitutionalism is the belief that government powers must be limited and guided by a written Constitution. In democracies like India, the Constitution ensures that the government does not violate individual rights such as liberty, equality, and freedom of expression.

What is Digital Constitutionalism?

Digital Constitutionalism is a newer concept that emphasizes the need to extend constitutional values to online spaces. As citizens spend more time on the internet, it becomes essential to protect their rights in this digital environment just as we do offline.

This idea demands that:

• Governments respect digital rights,

• Corporations follow ethical digital practices, and

• Legal frameworks are updated for digital realities.

The Indian Constitution provides several Fundamental Rights under Part III. This section analyses how some of these rights are affected in the digital sphere.

Freedom of Speech and Expression (Article 19(1)(a))

This right allows individuals to express opinions freely. In the digital world, this takes place mainly on social media platforms and websites.

Challenges:

• Content Removal by Platforms: Private companies like Meta or X (Twitter) often take down posts, sometimes without clear explanations.

• Government Censorship: Authorities occasionally block content in the name of national security or public order.

• Misinformation vs Free Expression: The rise of fake news creates tension between regulation and freedom.

Case Law: Shreya Singhal v. Union of India (2015)

The case of Shreya Singhal v. Union of India is one of the most important judgments in Indian legal history concerning freedom of speech and expression on the internet. It was decided by the Supreme Court of India in March 2015 and dealt with the constitutionality of Section 66A of the Information Technology Act, 2000.

What Was Section 66A All About?

Section 66A made it a criminal offense to send any information through a computer or mobile that was:

• Grossly offensive,

• Menacing in character,

• Or false information sent to cause annoyance, inconvenience, or insult.

In simple words, if someone posted something online that was considered "offensive" or "annoying," they could be arrested and punished with up to three years in jail.

What Sparked the Case?

The controversy started when two young women in Maharashtra were arrested in 2012. One of them had posted a comment on Facebook questioning the shutdown of Mumbai after the death of a political leader. The other had merely liked the post. Both were arrested under Section 66A.

This arrest caused public outrage. Many people believed it was a violation of freedom of speech and a misuse of power. This led to several petitions being filed in the Supreme Court, the most notable one by Shreya Singhal, a law student at the time.

What Did the Petition Say?

Shreya Singhal argued that Section 66A:

• Was too vague and open to interpretation,

• Gave too much power to the police to arrest people without proper justification,

• Violated the Right to Freedom of Speech and Expression under Article 19(1)(a) of the Constitution.

The petition pointed out that the terms like "offensive," "annoying," or "inconvenient" were subjective and could mean different things to different people. This vagueness made it easy to misuse the law.

What Did the Government Say in Defense?

The government defended the law by saying that it was necessary to control cybercrimes, hate speech, and misinformation on the internet. They claimed that the internet spreads information very fast and unchecked content could cause violence, panic, or public disorder.

What Did the Supreme Court Decide?

After examining both sides, the Supreme Court struck down Section 66A as unconstitutional. The court said that:

• The law was too broad and vague, and that made it dangerous.

• It violated the basic right to free speech.

• The terms used in the law had no clear definitions, which led to arbitrary arrests and censorship.

The court also said that freedom of speech includes the right to express unpopular opinions and that people cannot be punished just because their views are offensive to someone.

Why Is This Judgment Important?

1. Protects Free Speech Online: The ruling made it clear that the internet is a public platform where the same constitutional protections apply as in real life.

2. Stops Misuse of Law: Section 66A was often used to suppress dissent or punish criticism. Its removal was a step toward protecting democratic values.

3. Judicial Independence: This case is an example of how the judiciary can check the misuse of power by the government and protect citizens' rights.

Conclusion

The Shreya Singhal case reminds us that freedom of speech is the cornerstone of democracy—whether it's in newspapers, speeches, or social media posts. The judgment reaffirmed that vague and overbroad laws cannot be allowed to restrict individual liberties, especially in the digital age where expression is central to civic participation.

This case set a historic precedent for how India views digital rights and free expression in the 21st century.

The digital world generates vast amounts of personal data—browsing history, photos, location, contacts—often stored by private platforms or monitored by the State.

Challenges:

• Data Misuse: Companies use personal data for targeted ads or sell it to third parties.

• Lack of User Consent: Users often don’t fully understand what they’re agreeing to.

• Surveillance: Governments use surveillance tools, sometimes without legal safeguards.

Case Law: Justice K.S. Puttaswamy v. Union of India (2017)

The case of K.S. Puttaswamy v. Union of India is one of the most important constitutional judgments in Indian legal history. It was decided by a nine-judge bench of the Supreme Court on August 24, 2017, and the central issue was whether the Right to Privacy is a Fundamental Right under the Constitution of India.

Background of the Case

The case began when Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court, filed a petition against the Indian government. The main concern was about the Aadhaar programme—a biometric identity system that collected personal details like fingerprints and iris scans of Indian citizens.

Justice Puttaswamy argued that the Aadhaar system was invading people’s privacy, and the government did not have the legal authority to force people to share such sensitive data.

This raised a larger constitutional question:

"Is the Right to Privacy protected under the Indian Constitution?"

Earlier judgments of the Supreme Court (in 1954 and 1962) had said that privacy is not a fundamental right. So the matter was referred to a larger bench to reconsider these old rulings.

What Did the Government Argue?

The government argued that:

• Privacy is not mentioned explicitly in the Constitution.

• The Aadhaar programme was necessary to improve welfare schemes and prevent fraud.

• Citizens should not expect absolute privacy when they share information with the government or private companies.

What Did the Petitioners Argue?

The petitioners (including lawyers, academics, and activists) argued that:

• Privacy is essential to the dignity and freedom of individuals.

• Without privacy, rights like freedom of speech, freedom to choose, or even bodily autonomy become meaningless.

• The State should not have unchecked access to citizens’ personal lives.

Supreme Court’s Verdict

The nine-judge bench of the Supreme Court unanimously declared that the Right to Privacy is a Fundamental Right under Article 21 (Right to Life and Personal Liberty) and also under Articles 14 (Right to Equality) and 19 (Right to Freedom).

The Court said:

• Privacy is not just about hiding secrets. It is about having control over personal choices, information, and decisions.

• Even though the word “privacy” is not mentioned in the Constitution, it is part of the right to live with dignity.

• The earlier judgments (from the 1950s and 1960s) were outdated and must be overruled.

Key Takeaways from the Judgment

1. Privacy as a Fundamental Right: This ruling confirmed that every Indian has the right to keep personal matters private—whether it’s about their body, beliefs, family life, health, or data.

2. Impact on Aadhaar: Though the Court didn’t strike down Aadhaar in this case, it laid the foundation for stricter checks on how personal data is used.

3. Scope of Privacy: The Court explained that privacy includes various dimensions—like the right to make decisions about one’s body, food, dress, sexual orientation, and communication.

4. Government Cannot Invade Privacy Without Reason: Any action that invades privacy must meet three tests:

   • It must be backed by law,

   • It must serve a legitimate public purpose, and

   • It must be proportionate (i.e., not excessive or arbitrary).

Why Is This Case Important Today?

This judgment is extremely relevant in the age of technology. Today, mobile apps, social media, digital IDs, and surveillance tools constantly collect personal data. The Puttaswamy case ensures that citizens have legal protection against misuse of their private information—whether by the government or corporations.

It also impacts future debates on issues like data protection, facial recognition, online surveillance, and freedom of personal choice.

Conclusion

The K.S. The Puttaswamy judgment marked a historic turning point in Indian constitutional law. It recognized that privacy is essential for a free and dignified life. In simple words, it told the State:

“You may govern the people, but you cannot control their private lives.”

This case reaffirmed that in a democracy, the rights of the citizen come before the power of the State—whether offline or online.

The digital divide—unequal access to the internet based on region, income, or gender—raises concerns under Article 14, which promises equality before the law.

Challenges:

• Algorithmic Discrimination: AI and algorithms sometimes produce biased results in hiring, policing, or content moderation.

• Online Harassment: Marginalized groups often face targeted abuse online.

• Unequal Internet Access: Rural and low-income populations still face barriers to reliable internet.

The right to information includes access to truthful and timely content online. Digital access also plays a role in education, health, and legal aid.

Challenges:

• Internet Shutdowns: Frequently imposed during protests or unrest, especially in areas like Jammu & Kashmir.

• Digital Illiteracy: Many citizens, especially the elderly or less educated, are unable to benefit from digital resources.

Case Law: Anuradha Bhasin v. Union of India (2020)

The case of Anuradha Bhasin v. Union of India is a major decision by the Supreme Court of India that deals with freedom of speech, internet access, and government restrictions. It was decided in January 2020, against the backdrop of the Indian government's decision to shut down internet services in Jammu & Kashmir.

This case was significant because it was the first time the Supreme Court gave detailed guidelines on internet shutdowns and explained how digital rights relate to fundamental rights in the Constitution.

Background of the Case

In August 2019, the Indian government revoked Article 370, which gave Jammu & Kashmir special status. As a precaution, the government shut down internet and phone services, restricted movement, and stopped people from assembling in groups.

Anuradha Bhasin, the executive editor of a newspaper called Kashmir Times, filed a petition in the Supreme Court. She said that the communication shutdown made it impossible to report news or operate media freely, which violated the freedom of the press and freedom of speech under Article 19 of the Constitution.

Main Issues in the Case

The Supreme Court looked into several key questions:

1. Can the government shut down the internet indefinitely?

2. Does freedom of speech and expression include the right to access the internet?

3. Were the government orders legal and proportionate?

Arguments from the Government

The government argued that:

• The restrictions were temporary and necessary to maintain law and order.

• There was a risk of violence and unrest after the abrogation of Article 370.

• Internet shutdowns are allowed under certain legal provisions, like Section 144 of the CrPC and the Temporary Suspension of Telecom Services Rules, 2017.

Arguments by the Petitioners

The petitioners claimed that:

• The blanket internet shutdown was a violation of basic rights, especially the right to freedom of speech, expression, and the press.

• The shutdown also affected education, healthcare, and business, especially in the age of digital communication.

• The government’s actions were not transparent, and no proper orders were published explaining the shutdown.

Supreme Court’s Decision

The Court made several important observations:

1. Freedom of Speech Includes the Right to Internet: The Court held that access to the internet is essential for exercising freedom of speech. This does not mean internet access is a separate fundamental right, but it is a tool necessary to exercise existing rights in the digital age.

2. Internet Shutdowns Must Follow Legal Rules: The government cannot impose indefinite shutdowns. Any shutdown must:

   • Be based on a valid law,

   • Be temporary and reviewed regularly,

   • Be proportional to the threat faced.

3. Government Must Publish Orders: All shutdown orders must be made public, so that affected people can challenge them in court if needed.

4. Use of Section 144: The Court also ruled that Section 144 (used to restrict public movement) cannot be misused. It must be applied in cases of genuine emergency, not as a routine measure.

Why Is This Case Important?

1. It set a legal benchmark for internet shutdowns in India.

2. It reinforced that digital rights are linked to fundamental rights.

3. It placed limits on arbitrary government action and encouraged transparency.

This case has been cited globally as an important example of how courts should balance security concerns with civil liberties in the digital era.

Conclusion

Anuradha Bhasin v. Union of India was a milestone judgment that clarified the legal limits of internet shutdowns. It showed that while national security is important, citizens' rights cannot be ignored—especially in the modern world, where access to the internet is crucial for communication, education, work, and free expression. The ruling made it clear: the government must act within the Constitution, even in difficult times.

Unlike governments, private companies are not directly bound by the Constitution. However, they control major parts of our digital lives.

Key Concerns:

• Censorship without Oversight: Platforms remove content based on vague "community guidelines."

• Monopoly Power: A few companies dominate the market, leaving users with limited alternatives.

• Data Exploitation: Terms of service are often unclear, enabling data misuse.

There is an increasing call for companies to adopt digital due process, which means they should act transparently, respect user rights, and provide fair dispute mechanisms.

Several countries and international organizations have started framing legal protections for digital rights.

European Union (EU)

• GDPR: The General Data Protection Regulation sets strict rules for how personal data is collected and stored.

• Digital Services Act (2022): Regulates harmful content and ensures accountability of large tech platforms.

Brazil

• Marco Civil da Internet: Recognized as a digital constitution ensuring net neutrality, privacy, and free expression.

United Nations

The UN promotes digital human rights through reports and forums, emphasizing that offline rights must also be protected online.

India is gradually building a legal framework to address digital rights but faces challenges.

Positive Measures:

• Supreme Court rulings that affirm digital rights.

• Initiatives under Digital India to improve access and digital infrastructure.

Areas of Concern:

• Frequent internet shutdowns affecting democratic processes.

• IT Rules 2021 give excessive power to the government over digital content.

• Absence of a strong data protection law despite multiple draft bills.

  
  

To build a fair digital constitutional framework, the following steps are essential:

Legal Reforms

• Pass a robust Data Protection Law that ensures user consent and accountability.

• Amend IT laws to strike a balance between free speech and harmful content.

Judicial Vigilance

Courts must continue to play an active role in protecting rights online, especially when laws are misused.

Corporate Accountability

Digital platforms should follow principles of transparency and user rights. Ethical standards, user rights charters, and grievance redressal systems are necessary.

Public Awareness

Citizens must be made aware of their digital rights and how to defend them through education campaigns and digital literacy programs.

Digital Constitutionalism represents the next frontier in constitutional law. As the internet becomes essential to daily life, protecting fundamental rights in the online world is as important as offline protections.

India’s legal and constitutional framework is evolving to meet these challenges, but much work remains. A balanced approach that includes legal reform, responsible governance, judicial protection, and corporate accountability is essential to ensure that digital technology supports democracy rather than undermines it.

As technology advances, our commitment to constitutional values—liberty, equality, dignity, and justice—must remain firm, both on the streets and on our screens.