RIGHT TO INTERNET - A FUNDAMENTAL RIGHT OR A POINTLESS DEBACLE?
Updated: Nov 26, 2020
A delicately balanced sphere of technology and human rights, our society is at crossroads of social, economic and technological development. Technology is making landmark strides in establishing a nexus with human emotions, perversions and lives; human rights in such context remain vague owing to the contrasting nature of such growth. Internet is the bedrock of such technology-driven modern society and no more a luxury or a mere catalyst but is rather a medium for all forms of human interaction. While the debate regarding the ill-effects of Internet rages on, its importance in people’s lives has been sufficiently underrated, unexplained and unstructured. As a result, the deprivation of the same, while has wide ranging ramifications, hasn’t evoked enough accountability until recently. Access to Internet as a right continues to have a vague standpoint in legal and social spheres. However, owing to the recent shut downs in Jammu and Kashmir during Art. 370 protests and various other places during the Citizenship Amendment Act (CAA) protest, there has been a deliberation regarding the extent of body of rights an individual is guaranteed with respect to the Internet. While this issue has come to light in the public sphere recently as an aftermath of specific events, it is essential to establish whether or not Internet is a human, fundamental or legal right in essence, so as to prevent its deprivation not just in specific cases but also in day to day life. This paper thus, in spirit, revolves around the extent, existence and justification of access to Internet as a fundamental right, the paradigm shift of its application, the Supreme Court’s stance on the same and the moral and legal implications of access to Internet as a right.
The Deprivation of Internet
The impediment in access to Internet in India can broadly be divided into a two-pronged issue, namely, i) a complete deprivation of Internet due to shutdowns, and ii) a lack of access to Internet. India is responsible for the maximum number of Internet shutdowns in the world, with 374 shut downs since 2012. Internet shutdowns have devastating economic ramifications in India, with losses estimated to be a sizeable proportion of Indian GDP. Such patterns of shutdowns go beyond the dollars and speak volumes regarding the freedom of press, communication blockade, right to dissent and so on, all of which are human and fundamental rights. With coronavirus pandemic paralyzing our normal lives, the mode of education has become Internet-based, which has grossly exposed the abysmal lack of access to the Internet. Therefore, lack of access to Internet is not just the absence of one service but rather several services, many of which constitute important human rights. It is therefore evident that this conundrum is beyond a bill, ideology or government, it is a debacle of human rights.
The Current Legal Position
The global recognition of Internet as a basic human right began in 2011, when Frank La Rue submitted a report to the Human Rights Council, deeming Internet as a human right under the ‘right to freedom of opinion and expression’. The United Nations (“UN”) in 2016, passed a non- binding resolution condemning Internet curbing practices of various nations and governments, thereby granting Internet the status of a basic human right. The recognition of this right in a legal capacity began with the landmark decision of Kerala High Court in 2019, which declared Internet to be a basic human right as well as a guaranteed fundamental right under Art. 19(1)(a) and right to privacy and education under Art. 21 of the Indian Constitution. This decision was succeeded by a Supreme Court case, Anuradha Bhasin v. UOI, revolving exclusively around right to Internet and the justification of the same under Art. 19.
Anuradha Bhasin v. Union of India – Internet as a Fundamental Right
This case has often been criticized for either being too specific regarding the definitions of Internet under Art. 19, or for not doing enough for right to access of Internet as a concept. Nevertheless, it is undeniable that this case forged the foundation for legislation on right to access to Internet in India and clarified its legal position and nexus with Art. 19.
The dispute on this case arose from the infamous suspension of Internet services in Jammu and Kashmir owing to the aftermath of the amendment of Art. 370 of the Indian Constitution. The petitioner claimed an infringement of her right to press freedom under Art. 19(1)(a) as she was unable to publish the Srinagar edition of Kashmir Times, and sought a writ for setting aside any order that suspends Internet and other forms of communication on the pretext of infringement of freedom of expression along with a writ for an assurance of safe transfer for journalists and reporters and guidelines regarding the same.
The judgment of the Court follows a trajectory of examining the nuances of Internet as a fundamental right and then delving into restrictions as prescribed under Art. 19(2). Firstly, the Court establishes which fundamental right does the right to Internet fall under, in substance. Then the Apex Court clarifies its position on restrictions imposed against fundamental rights along with an assessment of balancing security of a nation with fundamental rights of citizens.
The Supreme Court in this case, creates a distinction between Internet as a tool and that as a medium of expression and trade and does not delve into the nuances of different facets of rights that Internet could fall under. While the position of right to Internet as an independent body of fundamental right under right to life is a raging issue and an important moot point in legal academia, the Court has answered only those questions that pertain to the case at hand.
Right to Internet under Article 19(1)(a) of Freedom of Speech and Expression
Justification for right to Internet first and foremost lies under the right to freedom of speech and expression using Internet as a tool for the same. Here it is imperative to consider Internet solely as a medium and not as a body of rights in entirety, for that position has not been established yet. The Supreme Court in this case, first takes cognizance of the fact that Internet is undeniably the format of expression these days, covering up for the inaccessibility and unavailability to print media. The Court also lays down, basing its case on the ruling in Shreya Singhal v. Union of India, that just because there exists a wide spread mode of publication or a greater impact, it cannot constitute a complete rejection of the content or a blanket ban and curtailment of a fundamental right.
Considering Internet as an alternative to print media and allied sources, the Court relies upon the case of Indian Express Newspapers v. Union of India, which held that the right to print media is a fundamental right under Art. 19(1)(a). The Court also has widened its scope of justification and stated that the right to broadcasting is a fundamental right under Art. 19(1)(a) relying on Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana. Since Internet has undisputedly replaced these forms of media to an extent, it can rightfully be considered a medium under Art. 19(1)(a) and hence, is a protected fundamental right under the same.
Right to Internet under Article 19(1)(g) of Freedom of Trade
In addition to considering right to Internet under freedom of speech and expression, the court considers the usage of Internet under trade. Be it the subject matter of the case that justifies Internet as a medium of trade and commerce through the losses suffered by Kashmir Times or the billions of dollars lost due to Internet shutdowns, it warrants the protection of right to Internet as a fundamental right under Art. 19(1)(g) of freedom of trade.
Limitation of Right to Internet as a Fundamental Right
Art. 19(1) falls under fundamental rights that have a negative prescription, i.e., the right cannot be infringed or curtailed unless the Constitution prescribes a limitation. As held in K.S. Puttaswamy v. Union of India, fundamental rights are not absolute and are subject to reasonable restrictions, the proportionality of which can be determined on a case to case basis. Relying on the judgement and the negative prescription of the Article, the Court determines the reasonableness of limitations to right to Internet, and lays down guidelines for the same. The two-pronged test for determining the reasonableness of the limitation comes from the reading of Art. 19(2) and from the theory of proportionality as mentioned in the K.S. Puttaswamy case.
The limitations to the fundamental rights under Art. 19(1) lie under Art. 19(2). While the petitioners argued that limitations cannot be absolute in nature leading to complete prohibition, the bench not only held that several cases have held in favor of complete prohibition (such as State of Maharashtra v. Himmatbhai Narbheram Rao, Narendra Kumar v. Union of India, Dharam Dutt v. Union of India), but also gave a test to determine whether or not a complete prohibition is justified. Through the reading of Art. 19(2), it was held that there can be a complete prohibition, as far as the government justifies the reasons for the same and also justifies why lesser stringent alternatives are not valid, the determination of which is a question of fact.
The second phase of determination of reasonableness comes from the doctrine of proportionality, which relates to whether or not the legislator has attempted to protect fundamental rights and whether the restriction imposed is the least restrictive alternative with respect to the reason enlisted for the same. This test thus determines whether or not the restriction is balanced in regard to security of the nation and civic liberty keeping in mind that the harmonious construction of the two is what rightfully forms the basis of democratic freedom.
Thus, the justification of limitations mentioned under this case are landmark in nature not solely because of the nature of the case being first with regard to right to Internet, but because it streamlines various concepts of fundamental rights in the light of this modern age of technology.
Right to access to Internet is not just another unimportant debate in this rights-based form of legal society. It is a rightful upgradation of legal principles that cater to the society that is ever changing in nature. While the position of law remains unspecific on several aspects of this right, the beginning of a revolution regarding this change has begun.
While right to Internet is not a body of rights in text, it is one in practicality. Be it an undisputed part of several rights such as education and privacy, to its usage as a medium, the freedom of which is guaranteed, its importance in legal framework, societal functioning and technological advancement cannot be undermined. It is thus imperative to realize the nature of this right instead of actively shunning its importance due to the ill effects of the Internet, for even the ill effects cannot be checked by law, if the necessity of Internet remains undetermined. Thus, Internet is an undeniable right, a part of modern civilizations, the soul of a democratic nation, the lack of recognition of which is a complete and reckless denial of progress, of fundamental human rights, of the very thread that binds modern societies together.
Title Image Source : The Wire
This article has been written by Anant Budhraja. Anant is a second year law student at National University of Juridical Sciences, Kolkata.