TWO PATHS TO DIGITAL RIGHTS: A COMPARATIVE CONSTITUTIONAL ANALYSIS OF DIGITAL CONSTITUTIONALISM IN INDIA AND THE EUROPEAN UNION

Abstract

Digital technologies have upended some of the core tenets of constitutional theory, namely the state-centric approach. This article examines the comparative constitutional study of two different jurisdictions on digital constitutionalism: India and European Union, focusing on the extension of fundamental rights to digital space. It follows the EU's rights-first approach (Article 8 ECHR and the GDPR) as opposed to the judicially emergent approach of India, as enshrined through Justice K.S. Puttaswamy in Article 14, 19 and 21. The analysis is based on those of Shreya Singhal, Anuradha Bhasin, Google Spain and the Schrems cases, and seeks to consider issues of privacy, speech, intermediary regulation and cross-border data governance. The results reveal both constitutional doctrine and a lack of institutional independence and algorithmic accountability mechanisms in the Indian model, and an original Indian model that integrates the existing principle into a coherent regulatory design is proposed.