Posted on: February 11, 2021 Posted by: admin Comments: 1

Author: Reema Jain[1],Student at Symbiosis Law School, Hyderabad.

ABSTRACT

In consideration of rapid digitalization and increasing dependence on the Internet in the fields of trade, business, security, communication and education inter alia areas, the question of, “access to the internet” as a fundamental right has emerged in front of the Indian Courts. The right to have access to the internet becomes a part of the “right to privacy” under Article 21[2], “right to education” under article 21A[3], “right to freedom of speech and expression” under Article 19(1)(a) and “right to carry out to practice any profession, or to carry on any occupation, trade or business” under Article 19(1)(g) of the Indian Constitution. So, it can be positively inferred that “right to internet” is implicitly a part of Indian Jurisprudence and for its explicit attribution, all the elements are recognized. This paper analyzes how the Right to Internet is a fundamental right and is gaining traction in contemporary times.

Keywords: Digitalization, Internet, Inter alia, Fundamental Right, Jurisprudence, Constitution.

INTRODUCTION

Today, dissemination of information takes place predominantly through the internet. It was held in Romesh Thappar v. State of Madras[4], [T]hat the freedom of speech and expression includes freedom to propagate ideas which is ensured by freedom of circulation of a publication, as publication is of little value without circulation.” This further connects to “right to information” as an intrinsic part of “Right to freedom of speech and expression” under “article 19” of the Indian Constitution. It is a general assumption that greater propensity to communicate enhances the machinery of democracy and leads to an empowered populace. [5]

The wide scope of instrumentality of “Right to Internet” can be derived from understanding the “Foundation for Media Professionals v. Union Territory of Jammu and Kashmir”[6], where the imposition of slow internet through 2G service in the valley of Jammu and Kashmir led to violations of “Right to health”, “Right to education” inter alia other rights. Though, “Right to internet” is not considered as a Fundamental Right by the Supreme Court of the Country, Kerala High court has accorded it as a fundamental right in Faheema Shirin R.K v. State of Kerala[7].

Any restriction on the internet must pass the “test of proportionality” and a blanket ban on internet in any region is subject to “interest of sovereignty and integrity of India, the security of the state, friendly relations with foreign state or public order for preventing incitement or commission of an offence.” Additionally, internet ban must be the “least restrictive measure”. The genesis of right to Internet in India is the result of a series of judicial pronouncements, statutes, Constitutional applicability and international covenants like International Covenant of Cultural and Political Rights.

Further, this paper shall shed light upon how section 144 of “Code of Criminal Procedure 1973” and Rule 2(1) under “Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017”, internet bans are imposed in India. Therefore this paper focuses on how right to internet is a derived fundamental right as it can be interpreted under other fundamental rights and how it is instrumental in a democracy.

RESEARCH PROBLEM

The number of internet shutdowns in India showed a positive growth curve. India’s rank in the “Freedom on the Net” report declined for the fourth consecutive year in 2019. [8] Arbitrary shutdowns of Internet are a reflection of aggravated political endeavors. Poor infrastructural development deprives considerable share of our population of the right to internet. With unequal access to internet owing to internet shutdowns or lack of facilities to provide access, masses of Indian population are left behind economically, politically and socially. This research additionally identifies that existing literature on “Right to Internet” in India, does not exclusively link this right to the facets of democracy and fundamental rights in the same plane. This gap shall be covered by this paper.

RESEARCH QUESTIONS

The underlying research seeks to analyze and answer the following questions:

1) Should right to internet be considered as a fundamental right?

2) What is the intensity of violation of right to internet in India?

3) What other rights are interlinked to the right to internet?

4) How are democracy and right to internet two sides of the same coin?

RIGHT TO INTERNET AS A FUNDAMENTAL RIGHT

Right to internet has been elevated to the level of a fundamental right in India which is in accordance to the “United Nations” recommendation in the case of Anuradha Bhasin v. Union of India[9]. It can be observed that like “Right to privacy”, it can be a derived right as it derives its substance from Article 21 of the Constitution. Right to Internet derives its importance from Article 21, Article 19 and Article 21A. Additionally, the internet is considered as an important source for women to voice their concerns online and therefore, restriction of Internet must not be an option unless no other alternative is available. [10] Right to internet has been defined as (i) Right to access the internet and (ii) Availability of such technology

1) Right to Internet as a part of Article 21

In the case of Mohini Jain v. State of Karnataka[11], it was held that under Article 21A of the Constitution, education must not be confined to the higher strata of the society only and is a fundamental right, to which every citizen is entitled. This is relevant when it comes to the applicability of right to internet because in the case of Faheema Shirin v. State of Kerala[12], the court held that internet is used by students to “Download e-books, take online courses offered by the government, browse news to acquire knowledge and propagate progressive ideas”. This case was a landmark case as the Kerala High Court elevated right to internet as a fundamental right here. The directive principles enshrined in Articles 38, 39, 41 and 45 that form a part of Article 19 and 21 cannot be fulfilled without ensuring access to modern technology and right to education.[13]  Additionally, in the case of Anuj Garg v. Hotel Association of India[14], the court declared that the young generation must be equipped with modern technologies in order to facilitate progress.

The ambit of Article 21 is very vast and comprises of various rights, if they form an essential part of right to life. In consideration of the fact that education makes life meaningful as put forward by various judicial pronouncements, it can be understood that right to internet forms a part of right to life.

2) Right to Internet as a part of Article 19

A right confers privileges upon an in individual and the violation of the same gives rise to legal consequences. With the endeavors of government such as BharatNet that aims to provide broadband connectivity to even remotest villages, “Digital India” is a reality. [15] It has been observed that internet has opened up new portals to practice trade and profession online. Therefore, as highlighted in the case of Foundation for Media Professionals v. Union Territory of Jammu and Kashmir[16], right to internet of the citizens is a pre-requisite to realizing “Freedom to practice any trade, profession, occupation or business” guaranteed under “Article 19(1)(g)” of the Constitution. Therefore, when the Government imposed a “blanket ban” on Internet in the valley of Jammu and Kashmir, it violated the rights of citizens under Article 19(1)(g).[17]

In the case of Sabu Mathew George v. Union of India[18], the court upheld that, “The right to be informed and the right to know and the feeling of protection of expansive connectivity is guaranteed under the Constitution”. The role of internet to inform citizens was highlighted in Maneka Gandhi v. Union of India[19], where Internet was accepted as a “limitless phenomenal to gather, transmit and receive information”. Therefore, in order to ensure right to information of citizens which is guaranteed under Article 19(1)(a) of the citizens, “Right to internet” of the citizens has to be protected.

In the case of PUCL v. Union of India[20] it was understood that under Article 19(1)(a) of the Constitution, every citizen has the freedom to express their thoughts, opinions and ideas through words or by print. This right is inclusive of an individual’s right to criticize the Government for their policies on the Internet and this has come under the scanner numerous times in this period of time. Internet can therefore be considered as a facilitator of dialogue in the virtual world that enables people to realize their “Right to know” and make decisions in a participative democracy. In recent times, people have resorted to internet to discuss the drawbacks of their regime and government and governments have blocked their access to internet in response to this in order to pull a veil over their gross miscalculations and political gimmicks.[21]

In fact, during the Constitutional assembly debates, it was reiterated that freedom of speech was the “essence” of democracy.[22] With the advent of technology, freedom of speech has become more relevant due to increase in the flow of speech and expression through the internet. This is because it can reach to the masses in a very short span of time. Therefore, the derivation and interpretation from Article 19 and Article 21 of the Constitution makes Right to Internet a fundamental right.

ROLE OF RIGHT TO INTERNET IN A DEMOCRACY

In a democratic state, citizens participate in decision-making at all levels. Therefore, dissemination of information through internet commands more importance as it spreads quickly. With the spurt in the commercialization of media, corporate news-houses tend to curb the plurality in the public opinion. In times like these, social media plays an indispensible role in reflecting the true opinions of the public. [23] Therefore, internet-shutdowns or restriction to access internet are a blatant violation of civil liberties guaranteed under “Part-III” of the Constitution. With the speedy proliferation of information about the affairs of the state, citizens feel empowered and democracy and liberty are promoted. With the unity of citizenry online, the oppression of the repressive government is turning out to be intolerable. The abuse of human rights and fundamental rights is projected on the internet and citizens have come to hold the government accountable. When internet is a tool that promotes transparency and empowers people, then the access to internet commands legal sanction.

1) Analysis of Anuradha Bhasin v. Union of India

The case of Anuradha Bhasin v. Union of India[24] has to be scrutinized in order to understand when internet can be suspended by the procedure of law. In this case, petitioners approached the Supreme Court challenging the orders that imposed a blanket-ban on the Internet in the Valley of Jammu and Kashmir, post the abrogation of Article 370 anticipating attacks on security and integrity of India. The petitioners challenged their “Right to Education”, “Freedom of speech and expression”, “Freedom to carry on trade” and “Right to information”. The court adjudged that internet can be a modern form of terrorism and can be used spread misinformation and plan attacks that can disrupt public order and security of the State. This case proclaimed “Right to Internet” as a “Fundamental Right” and just like other fundamental rights, it is not absolute. The devised “Test of proportionality” has to be applied to restrict the access to Internet. The blanket-ban did not seem to serve any purpose as not all areas in the impugned area were “Dangerous zones” and did not require such a ban. In order to restrict a Fundamental Right, the restriction and the object behind the restriction must have a rational nexus, otherwise such a restriction becomes arbitrary and violates Article 14 of the Constitution. Finally, the Centre in consideration of these contentions was ordered to review the “blanket-ban”.

Internet shut-down in India can be imposed in accordance to the procedure laid down by law. Internet shutdowns in India can be carried out under Section 144 of the Criminal Procedure Code, 1973. Under this provision, the magistrates have the authority to prevent the assembly of persons or prevent a certain activity. Under the ambit of “certain activity” the magistrate can direct how cell phones, cable towers etc, can be used. However, this authority of Magistrate under this provision was repealed and Temporary Suspension of Telecom Services (Public Safety and Public Emergency) Rules, 2017 (Hereinafter, referred to a “Rules”) was enacted. The section 2(1) of the Rules prescribes that the internet can be suspended only according to the procedure prescribed in the Rules. A mandatory formality after passing of such an order is to get it approved by the “review committee” by the next day. This review committee consists of “Cabinet secretary, Secretaries of Legal Affairs and Department of Telecommunication”. However, the author feels that this composition would offset the purpose of a review committee as it consists of delegates of the Government and are likely to pass the ban in favour of the Government. The drawback of the rules is that “Public safety” and “Public emergency” have not been defined and this leaves it to the discretion of the Government to determine what constitutes “Public safety” and “Public emergency”. This discretion can be arbitrary as seen in the case of more than 40 internet shut-downs in a year in Jammu and Kashmir.

In 2019-20, India recorded the most number of Internet shut-downs. This is a reflection of a flawed machinery of democracy within the country as such blanket-bans are in direct contravention of Freedom of Speech and Expression. The United Nations criticized these bans that materialized in India as they violated Article 19 of the Universal Declaration of Human Rights which confers upon every individual the right to express oneself. It was reiterated that human rights have to be protected “online” in the same manner as they are protected “offline”. [25]

However, the “Right to Internet of Individuals” must not violate other rights of Individuals or cause harm or injury. Under section 153A of “Indian Penal Code, 1860” hate speech that gives rise to enmity between different groups is banned.

CONCLUSION

The multifold utility of the Internet in contemporary times has been palpable to Indian courts and have affected the judicial pronouncements. With the passage of time and with “Techno-commercialization” and “Techno-capitalism”, the interpretation of fundamental rights has to be broadened to accommodate the changes. “Right to Internet” is not conceived as a novel right but has been recognized as a part of existing fundamental rights. The network of digital communication is now considered as a hallmark for dialogue and communication that is the essence of Democracy. The public authorities that are defined under section 2(h) of the “Right to Information Act, 2005” under section 7 have the duty to divulge information to public. This information is now due to presence of people online, is released on the websites that are then circulated on online media houses. This makes the flow of information fast and truly ensures right to information under Article 19 of the Constitution.

The other facet of “Right to Internet” is the technological competence to provide access to the citizens. The Government of India has started a flagship program called “Bharatnet” which aims to give broadband connectivity to rural India.

As observed in the aforementioned judicial pronouncements, “Right to education” cannot be ensured without providing access to Internet. In modern times, the freedom to connect to each other only is equated to “Freedom of assembly” which is guaranteed under Article 19 of the Constitution. However, with growing thrust for “Right to freedom” and “   Freedom to connect” online, there is a looming fear of the citizens. The interference of the Government in form of storage of data and sharing of data of citizens raises privacy concerns. “Right to Internet” is a very modern strata of law and shows how the legal framework evolves with the societal and technological changes.

BIBLIOGRAPHY
  1. Karthik Chawla, Right to access Internet- A Constitutional Argument, 7 Indian J. of Constitutional L. 57, 58-88 (2017).
  2. Vivek Sood, The Fundamental Right to Internet (Nabhi Publications, 2011).
  3. Siddhanth Sharma, Access to Internet in India: A Constitutional Outlook on Right to Internet, 35 Indian J. Of L. 353-361 (2017).
  4. Merten Reglitz, The Human Right to Free Internet Access, 37 of Applied Philosophy 251-256 (2020).
FOOTNOTES

[1] Reema Jain is a first-year law student at Symbiosis Law School, Hyderabad and is a CS Executive student at Institute of Company Secretaries of India.

[2] K.S Puttaswamy v. Union of India, 10 SCC 1 (2017).

[3] Faheema Shirin R.K v. State of Kerala, (2019) 4 KLJ 634 (India).

[4] Romesh Thappar v. State of Madras, (1950), 1950 AIR 124

[5] Andrea Slane, Democracy, Social Space and Internet, 57 The Univ. of Toronto L.J 81, 82-104 (2007).

[6] Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, (2020) 5 SCC 746 (India).

[7] Supra note at 2.

[8] Sandhya Keelery, Internet Freedom in India- Statistics & Facts, Statista (Sept. 10, 2020) at https://www.statista.com/topics/6071/internet-freedom-in-india/.

[9] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637.

[10] Kravets, UN Declares Internet Access as a Human Right, Wired (3rd June, 2013, 2:47 PM) Available at https://www.wired.com/2011/06/internet-a-human-right/.

[11] Mohini Jain v. State of Karnataka, (1992) 3 SCC 666.

[12] Supra note at 2.

[13] Unni Krishnan v. State of Andhra Pradesh, (1993) 1 SCR 594.

[14] Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1.

[15] Press Trust of India, Free Wifi to all villages connected to BharatNet, Live Mint (25th Dec, 2019, 7:55 PM) Available at https://www.livemint.com/politics/policy/free-wifi-to-all-villages-connected-via-bharat-net-till-march-2020-prasad-11577283791040.html.

[16] Supra note at 5.

[17] Supra note at 8.

[18] Sabu Mathew George v. Union of India, 2016 SCC Online 681.

[19] Maneka Gandhi v. Union of India, (1978) 2 SCR 621.

[20] PUCL v. Union of India, AIR 1997 SC 568.

[21] Eric R. Sterner, The Folly of Internet Freedom, 32 The New Atlantis, 134-139 (2011).

[22] K.M Munshi, 7 Constitutional Assembly Debates, 728 (1946).

[23] Aneesh Johnson, Right to Access Internet as a Fundamental right, Lawcirca (31st December, 2019) Available at https://lawcirca.com/right-to-access-internet-as-a-fundamental-right-in-india/.

[24] Supra note at 8.

[25] Bansari Kamdaar, Democracy in Digital Darkness, The Diplomat (Dec 20th, 2019) Available at https://thediplomat.com/2019/12/democracy-in-digital-darkness-internet-shutdowns-new-indian-normal/.

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