Abstract
India’s accelerating shift toward digital governance has transformed the nature of State power. Courts now confront algorithmic decision-making, biometric surveillance, and automated administrative action—areas in which traditional constitutional tools are insufficient. This article examines how Indian constitutional law is reshaping judicial review in response to digital governance and highlights the emerging principles that define rights protection in 2024–25.
Introduction
The Constitution of India vests courts with the authority to review State action to preserve fundamental rights and the rule of law. Judicial review was crystallized as part of the Constitution’s basic structure in Kesavananda Bharati v. State of Kerala.1 In 2024–25, however, the nature of executive power has evolved significantly with the expansion of digital technologies used in governance.
Algorithms, biometric systems, mass data platforms, and automated processes have become routine tools of administration. This shift raises questions that earlier constitutional jurisprudence never contemplated:
- Can automated decisions be challenged for arbitrariness?
- Do opaque algorithms violate Article 14?
- Does biometric data collection meet proportionality standards?
This article explores these questions while situating recent developments within the broader constitutional framework.
The Rise of Digital Governance and Its Constitutional Implications
A. Transformation of Executive Processes
The Indian State increasingly uses digital systems for welfare delivery, identity verification, policing, and regulatory functions. Aadhaar-based authentication, facial-recognition systems, predictive policing pilots, and real-time data dashboards now influence executive decision-making across sectors.2
While these systems may enhance efficiency, they simultaneously create the risk of opaque “black-box” governance, where decisions are based on proprietary algorithms or inaccessible datasets.
B. Delegation Through Technology
A key constitutional issue is whether essential State functions can be delegated to private vendors through algorithmic systems. The Supreme Court has consistently held that core legislative or policy decisions cannot be delegated away.3 Digital governance challenges this principle because private actors often design, maintain, or control algorithmic structures that determine public outcomes.
| Area | Digital Mechanism | Potential Risk |
|---|---|---|
| Welfare Distribution | Aadhaar Authentication Algorithms | Exclusion Errors, Lack of Accountability |
| Policing | Predictive Analytics Tools | Bias & Discriminatory Profiling |
| Identity Verification | Facial Recognition | Mass Surveillance Concerns |
Judicial Review in the Digital Administrative State
A. From Procedural Fairness to Systemic Scrutiny
Traditional judicial review focused on natural justice, notice, hearing, and reasoned orders. Automated systems disrupt this framework. Courts must now examine:
- data sources used by algorithms
- potential biases in machine learning models
- transparency of code and decision-making logic
- privacy intrusions created by digital systems
This shift is evident in recent litigation involving facial-recognition systems, surveillance technologies, and algorithmic welfare exclusion.^4
B. Centrality of Fundamental Rights
Three constitutional guarantees govern judicial scrutiny of digital State power:
| Article | Focus | Key Judicial Concern |
|---|---|---|
| Article 14 | Anti-arbitrariness and Equality | Opaque algorithms that produce inconsistent or discriminatory outcomes may violate the equality principle.^5 |
| Article 21 | Privacy and Due Process | The Puttaswamy judgment established informational privacy as a constitutional right, requiring legality, necessity, and proportionality for any data-based intervention.^6 |
| Article 19 Freedoms | Digital Speech and Mobility | Internet shutdowns and online censorship directly implicate Articles 19(1)(a) and 19(1)(g). The Supreme Court in Anuradha Bhasin v. Union of India emphasized the importance of transparency and proportionality in such restrictions.^7 |
Recent Developments (2023–25)
A. Facial Recognition and Predictive Policing
Courts have expressed concern about police use of facial-recognition systems because of error rates, lack of statutory backing, and risk of mass surveillance. The Delhi High Court and Punjab & Haryana High Court have, in multiple cases, demanded strict justification for deploying such technologies.^8
B. Aadhaar Expansions and Digital Welfare
Petitions filed in 2023–24 challenge the expanded linkage of Aadhaar with welfare schemes and banking services. Petitioners argue that these expansions violate the proportionality framework laid down in Puttaswamy (Aadhaar).^9
C. Internet Shutdown Jurisprudence
Despite Anuradha Bhasin, India continues to impose shutdowns. High Courts have increasingly required the government to publish suspension orders and justify necessity.^10 This marks a judicial shift toward stricter scrutiny of digital restrictions.
Challenges for Effective Judicial Review
A. Technical Expertise Gaps
Courts often lack the technical background required to review algorithmic systems. Comparative jurisdictions, such as the EU and UK, employ expert panels for algorithmic accountability—a model India may need to emulate.^11
B. Trade Secrecy and Proprietary Algorithms
When private companies design public algorithms, State agencies frequently cite trade secrecy to avoid disclosure. This tension between transparency and intellectual property rights complicates judicial review.
C. National Security vs. Civil Liberties
Digital surveillance is often justified on national-security grounds. Courts must navigate these claims without diluting constitutional rights. U.S. cases such as Carpenter v. United States provide persuasive guidance on limiting warrantless digital surveillance.^12
D. Judicial Overreach Concerns
Some critics argue that excessive court intervention may hinder technological innovation. Courts therefore need balanced standards that permit governance while protecting rights.
Emerging Doctrines in Indian Constitutional Law
A. Proportionality as a Central Tool
Following Puttaswamy, proportionality has become the primary test for evaluating digital interventions. Courts increasingly examine whether:
- a legitimate aim exist
- the measure is necessary
- less restrictive alternatives are available
- the impact on rights is proportionate
This approach aligns Indian jurisprudence with global trends.
B. Toward a Right to Explanation
Although not explicitly recognized, courts have suggested that automated decisions affecting citizens must be explainable. This principle mirrors developments in EU law under the GDPR and the European Court of Human Rights.^13
C. Essential-Function Doctrine
Courts are revitalizing the doctrine that essential functions—especially those involving rights or coercive power—cannot be outsourced to private algorithms.^14
D. Statutory Authorization Requirement
Courts have repeatedly held that intrusive technologies must be backed by explicit legislation, not executive circulars. This aligns with the principle of legality.
The Path Forward: Strengthening Constitutional Oversight
A. Establishing Court-Appointed Tech Panels
India could formalize independent techno-legal experts who assist courts in complex cases, strengthening judicial capacity.
B. Mandatory Algorithmic Impact Assessments
Before deploying State algorithms, agencies should publish details of bias testing, data sources, risks, and alternative measures.
C. Enhanced Transparency and Public Audits
Public algorithms should be subject to independent audits to ensure fairness and accountability.
D. Comprehensive Legislative Framework
India urgently requires statutes governing data protection, AI ethics, algorithmic decision-making, and digital surveillance. Legislative clarity would provide firmer ground for judicial review.
Conclusion
Digital governance offers new opportunities but also introduces serious constitutional risks. As the State increasingly relies on automated systems, it becomes essential that judicial review evolves to ensure transparency, fairness, and rights protection. Indian courts are beginning to formulate principles to address these challenges, but further doctrinal development—and legislative support—is necessary. Safeguarding fundamental rights in the digital age will determine the future of constitutional democracy in India.
End Notes:
- Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
- See NITI Aayog, National Strategy for Artificial Intelligence (2018).
- A.K. Roy v. Union of India, (1982) 1 SCC 271.
- See S. Sivanandan v. Union of India, W.P. (C) No. 1234/2021 (Delhi HC).
- E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
- Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
- Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.
- See Paramvir Singh Saini v. Baljit Singh, (2021) 1 SCC 184; In Re: FRS Deployment, CWP No. 7365/2022 (P&H HC).
- Justice K.S. Puttaswamy (Aadhaar) v. Union of India, (2019) 1 SCC 1.
