Devika Balakrishnan, a 14-year-old daughter of a daily wage labourer in Kerala committed suicide on 1st June of this year since she was unable to attend online classes because she did not have access to the internet or television. In another incident, 14-year-old boy from Chennai also committed suicide for same reason.
These disgraceful incidents were seen as a product of failure of government to ensure means of internet connectivity to masses. It was also surmised from these incidents that ‘Digital Divide’ and ‘Digital Inequality’ have negative impact on people belonging to downtrodden section of society.
Covid-19 pandemic brought unprecedented compulsions to stay indoors due to inherent contagiousness and pervasive nature of the disease. In order to keep continuing daily chores as before, it was utmost important to replace physical connectivity with virtual connectivity. Internet connectivity played a crucial role in achieving such objectives which were constrained by physical connectivity due to impending pandemic.
PENETRATION OF INTERNET
At global level, more than 60 percent of the total world population have access to internet. But this percentage varies from country to country as developed countries like USA and Scandinavian countries more than 80 percent people have access to internet when compared with least developed countries where only around 20 percent population can access internet.
India is the second largest internet using country after China with around 700 million internet users. However, penetration rate in India is only about 40% compared to 80% in case of USA. In a reply to a question in Rajya Sabha, Sanjay Dhotre, Minister of State for Communications, Education, and Electronics & Information Technology, said Broadband penetration in rural India is limited to a mere 29.2 per cent, as on 31 March 2020.
‘The Indian Telecom Services Performance Indicators’ report of TRAI dated 30 June 2020 cited that Bihar (21.69), Uttar Pradesh (21.64), Jammu & Kashmir (16.58), Madhya Pradesh (23.88), and West Bengal (25) are the states that have the least number of internet subscribers per 100 persons.
A CASE FOR RIGHT TO INTERNET
Like any other infrastructural connectivity, internet connectivity is of vital importance for development of human being in the age of information and technology. The necessity of internet and its access to all populace in judicial manner cannot be ensured until and unless it is guaranteed by state itself. State plays pivotal role in granting equal access to communication technology and can ensure equal opportunities of development to all citizens.
Citing all these reasons, in 2016, the United Nations Human Rights Council General Assembly articulated access to the Internet an essential human right by releasing a non-binding resolution condemning intentional disruption of internet access by governments. The same resolution reaffirmed that “the same rights people have offline must also be protected online” in particular the freedom of expression covered under article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Several countries like Costa Rica, Finland, France, Estonia, Greece and Spain have adopted laws that require the state to work to ensure the internet access is broadly available or preventing the state from unreasonably restricting an individual’s access to information and internet.
INDIAN CONSTITUTION AND RIGHT TO INTERNET
Constitution of India is the sovereign law of land and part three of the it enumerated various justiciable rights which are of indispensable nature in the sense that they are most essential for the all-round development (material, intellectual, moral and spiritual) of the individual. Although, right to internet has not explicitly been mentioned in constitution, it has been construed under ambit of various rights incidental to freedom, equality and right to dignified life.
Indian constitution is a profound blend of virtuous principles enshrined in various constitutions across the world. It tries to strike harmonious balance of rigidity offered by US constitution and flexibility offered by British constitution. This envisaged flexibility in constitution meant to incorporate changes owing to prevailing need of time.
Right to internet incorporated in the Constitution and it evolved as a product of various judicial pronouncements from time to time which are in nature equal force of statutory provisions. The Constitution called Supreme Court of India as a ‘Custodian’ and ‘Guardian’ of constitution. Higher Judiciary (High courts and Supreme Courts) entrusted to oversee execution laws in consistent with constitutional values in the country.
FREEDOM OF EXPRESSION THROUGH INTERNET
Article 19(1)(a) of the constitution of India guarantees freedom of speech and expression which inherently include right to access and distribution of information. K.M. Munshi while drafting the Constitution held that “freedom of speech and expression constitute the essence of democracy”. In People’s Union of Civil Liberties v. Union of India case, Supreme Court held that, ‘Freedom here means the right to express one’s opinions freely by word of mouth, writing, printing, picture, or in any other manner’. In Shreya Singhal v. Union of India, the Supreme Court recognised the internet as an essential medium to further the constitutional right to freedom of speech and expression.
This issue came again on forefront on 5th August, 2019 when the special status of Jammu and Kashmir granted under Article 370 of the Constitution of India was revoked by a Presidential Order. Due to possibility of exacerbating law and order problem in the valley, internet services were suspended prior to promulgation of the Presidential Order. Several writ petitions were filed before Supreme Court including one by Anuradha Bhasin, the then editor of daily Kashmir Times demanding restoration of internet access inter alia calling for judicial review of the internet shutdown order in Jammu and Kashmir.
In Anuradha Bhasin v. Union of India case, the Supreme Court held that expression of one’s views and practicing any profession through the internet is a protected right under Articles 19(1)(a) and 19(1)(g).The Court also went on to elucidate that such online speech can only be impeded under the recognized restrictions under Article 19(2) and Article 19(6) and that the proper standard of review would be the test of proportionality.
In judgement Supreme Court observed that,
Law and technology seldom mix like oil and water. There is a consistent criticism that the development of technology is not met by equivalent movement in the law. In this context, we need to note that the law should imbibe the technological development and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.
Freedom of speech and expression guaranteed under Article 19(1)(a) can only be restricted with reasonable restrictions only on eight grounds mentioned in Article 19(2) viz. in the interests of the sovereignty and integrity of India or the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.
In S. Rangarajan Etc v. P. Jagjivan Ram case, Supreme Court observed that exercise of conditions in article 19(2) for curbing freedom of speech and expression should not be based on convenience but on necessity. Further court concluded this list of grounds is exhaustive one so that state must not encroach over freedom of speech and expression of citizens beyond these eight grounds.
Therefore, the Supreme Court extended the proportionality test which was earlier applicable to judging legality of curbing freedom of speech and expression laid down in Justice K.S.Puttaswamy(Retd) v. Union Of India to internet disruptions. This four-pronged proportionality test include firstly, the restriction should serve a legitimate goal, Secondly. it must be a suitable means of furthering this goal, Thirdly, there must not be any less restrictive but equally effective alternative and Fourthly the measure must not have a disproportionate impact on the right-holder. Court further held that ‘…Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.’
FREEDOM OF OCCUPATION, TRADE AND BUSINESS WITH INTERNET
Since last few years e-commerce offering viable option of trading to people having limited capital and resources at their disposal. E-commerce industry becoming more and more popular in recent years. In the latest rankings of the world’s top websites illustrate the dramatic rise of Asia’s ecommerce platforms. In its latest list, Alexa ranked China’s Tmall in third place in the global website rankings – that’s ahead of both Facebook and Baidu.
Article 19(1)(g) guarantees freedom of occupation trade and business subject to restrictions laid down under article 19(6) of the constitution. In Chintaman Rao v. State of Madhya Pradesh Supreme Court held that, the phrase “reasonable restriction” under Article 19(6) connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. This restricts power of state from doing any unreasonable activity which directly or indirectly circumvent freedom of occupation, trade and business with internet.
In Anuradha Bhasin v. Union of India and Others. The Supreme Court held that freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys Constitutional protection and therefore is requisite to Article 19 of the Constitution subject to reasonable restrictions. Suspending Internet service not only obstruct conducting online businesses but also deprive individual from their source of livelihood.
RIGHT TO LIFE WITH DIGNITY AND INTERNET
Article 21 of the Indian Constitution reads as “No person shall be deprived of his life or personal liberty except according to a procedure established by law”. This right is so sacrosanct that can not be infringed even in the state of emergency. According to Justice P. N. Bhagwati, Article 21 “embodies a constitutional value of supreme importance in a democratic society.” Justice V. R. Krishna Iyer has characterized Article 21 as “the procedural magna carta protective of life and liberty”.
Over the years, arena of Article 21 substantially expanded through interpretational judgements of Supreme court and various High courts to accommodate various aspects of life that needs to protected for ensuring dignified life of individual. It incorporated Right to livelihood, right to health, right to pollution free air, right to live a quality life, right to go abroad, right to privacy, right against solitary confinement, right against delayed execution, right to shelter and right against custodial death after enactment of constitution.
Right to internet can be construed as an inherent part of Article 21 from various judgements. In Kharak Singh v. State of Uttar Pradesh, the Supreme Court quoted and held that, By the term “life” as here used something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by amputation of an armoured leg or the pulling out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.
Right to access internet came again in limelight when petitioner, Faheema Shirin, a female student at Sree Narayaguru College who was residing at the Women’s Hostel run by the college. She was expelled from hostel on a ground that she was using internet beyond permissible hours mandated by college authorities.
In this Faheema Shirin v. State of Kerala case, Single judge bench led by Justice P. V. Asha held that right to internet is part of right to life with dignity which emanates from right to privacy and right to education in the light of development of students and their learning process. Hon’ble justice observed that, “the enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge. They should be left to choose the time for using mobile phones. The only restriction that can be imposed should not cause any disturbance to other students.”
Court came to these conclusions by referring to international conventions and directive principles. Here relying on Vishaka & Others v. State of Rajasthan & Others court held that,
“the international conventions and norms are to be read into the fundamental rights guaranteed in the Constitution of India in the absence of enacted domestic law occupying the fields when there is no inconsistency between them” in the light of Articles 51(c) and 253 of the Constitution of India. Accordingly, the Court concluded that “the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India.”
Another landmark judgement of Supreme Court came in the case of Foundation for Media Professionals v. Union Territory of Jammu and Kashmir popularly known as 4G case which sought restoration of 4G internet services in Union territory of Jammu and Kashmir. Here court concluded that there should have been balance between national interest and human rights and every move of restoration such human right should be qualified with national interest.
HOW RIGHT TO INTERNET CAN MAKE CHANGE
Internet has opened a new world for many people around the world since it is a manifestation of never-ending innovation and creativity. It brought world much closer and integrated multiple cultures through fusion of information and made territorial boundaries almost oblivious.
According to International Telecommunication Union (ITU) Measuring digital development: Facts and figures 2019 report, more than 4.1 billion people were using internet in 2019 with 5.1% growth from previous year. There are more than 3 billion social media users worldwide. With right to internet, state can ensure bridging ‘Digital Divide’ gap between those who have access to internet and those who don’t have such access.
Recognition of right to internet would facilitate state to promote Digital literacy and get rid of digital inequality which is evident from the fact that more than 70 percent of rural population do not have broadband internet access. In a difficult time like global pandemic, the internet is not just a medium of expression but a key element of access to healthcare, public information, education policy, and an offshoot of the right to life. So, it can contribute affirmatively in efficient implementation of policies in critical times.
Internet access can significantly contribute in accelerating all social development objectives and targets of the Sustainable Development Goals. Digital India Programme, which aims to transform India into digitally empowered society and knowledge economy has nine pillars, of which six are directly related to internet access.
THE OTHER SIDE
Despite numerous positive aspects of granting right to internet, there are some issues that needs to be addressed before effectuating any step further in this direction. Right to access internet is a freedom at its core and no freedom can be absolute one. It should be subject to rules and regulations framed in good faith.
There are also some legal complications of incorporation of right to internet since there is no consensus where to compartmentalise this right. Such complexity can burden judiciary with litigations and have potential to hamper its implementation in good faith. State can resort to technical tactics of “Bandwidth throttling” to vitiate purpose of granting this right.
In recent times, many countries have attracted opprobrium for the sheer number of internet clampdowns imposed. For protecting any such move by any authority, it is necessary that such right to be recognised at global level and encapsulated in constitution of each country.
Internet has been so embedded in the lives of people, acting as the main way for information exchange, that to deny access to everyone in the world is a breach of human rights. It is in fact the undiscovered ocean of information and in present the greatest supplier of knowledge. Right to internet access and digital literacy will alleviate situation and allow citizen to avail better opportunity and lifestyle.