Abstract

As technological change crosses a certain threshold and ceases to be disruptive, it becomes constitutionally valuable. The collection of advances in artificial intelligence/big data analytics/drone technology/algorithmic decision-making/digital surveillance has led to a growing gulf between machines can do today and what the law has any agreed-upon answer for. This article therefore studies that chasm which I term the regulatory gap as it is emergent within the Indian legal order, mapping how the deployment of new technologies at a rapid pace has quickly outpaced efforts to adapt existing statutory and constitutional regimes. Based on legislative trends, judicial pronouncements and comparative regulatory experience, the analysis argues that Articles 14, 19, and 21 of the Indian Constitution already provide about the normative tools for filling this lacuna sufficient purposive application by courts and legislatures willing to imagine. This paper critically examines the landmark 2023 legislative package passed in India which includes, inter alia, the “Digital Personal Data Protection Act”, the three new criminal codes enacted under a Preamble frames approach to lawmaking (“the Criminal Procedure Code; the Indian Penal Code & the Indian Evidence Act”), along with other recent legislation such as that through which it amended its Competition Act and Telecommunications Act in nanoseconds but not others. This central finding is sobering: far from the type of routine administrative concern that one would imagine, the regulatory gap represents at best a slow-moving constitutional crisis, one that will require a multi-stakeholder, rights-anchored governance architecture to remediate before the damage becomes irreversible.

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