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Right to The Internet: A Constitutional Perspective




“A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both”. ― James Madison


Introduction


Right to Information and Right to Know are two pillars of freedom of speech and expression. We live in a digital era, where most of our work is online. With the advent of the digital revolution, India has crossed 627[1] millions of internet users in 2019 surpassing the USA in the internet user base. In the 21st century, the internet has become the most important supplier of information but, it has a negative impact too. As of now, the media is completely controlled by the politicians and people use this platform to spread hate too. For example, an FIR has been lodged against wrestler Babita Phogat for targeting a particular community and spreading hate. This brings us to the present scenario, as the internet has almost changed the way of education, living, freedom of expression and communication among individuals. It is because of that, in 2016 India has faced so many “Internet Shutdowns” around the globe. It is in the backdrop of this situation, there is an impeccable need to recognize “Right to the internet” as a part of a fundamental right.



Right to the Internet: Meaning and Nature


In contemporary times, Internet has become a staple of our world and in such a situation “Right to the Internet” or to have access to the Internet with every individual becomes a very vital question to be addressed so, we must first understand what this right is. Firstly, in a basic legal sense “A right” can be distinguished in two types i.e. A. Positive right, B. Negative right,


A positive right is the one which allows an individual to raise a claim whereas negative rights are the ones which are intrinsic to us and we deserve them simply because we are humans, (freedom of speech and expression, right to equality, etc are included in it). On the face of it, we can put “Right to the Internet” as positive right as being a right where individual claims to have use of broadband, but if we look deeper at the issue internet being one of the major conduits to exercise the negative rights and thus can be very well included under this category. This negative right relation can be established very well and is recognized by the international community as well.

In the summer of 2016, the United Nations Human Rights Council released a non-binding resolution where it has condemned the intentional disruption of internet access by governments and declared its access as a “Human right.”[2] It has also declared that “…Internet is one of the most powerful instruments of the 21st century for increasing transparency in the conduct of the powerful, access to information, and for facilitating active citizen participation in building democratic societies.”[3]

Nature of Right of the Internet in Indian Context


Now when it comes to our country where “Right to access to the Internet” is nowhere explicitly mentioned anywhere so we can’t call it as a positive right, but we sure can consider it as a “Derivative right” which are necessary to realize the objective of our constitution. They are termed as ‘penumbral rights’ or ‘unenumerated rights’ within the American jurisdiction,[4] and such a concept is very well established in our country as well because our Hon’ble Supreme Court has also expanded the scope of fundamental rights. (For example, right to sleep[5], right to clean environment[6], right to privacy[7], etc has been included under Art.21.) Thus the author is of a view that as this right facilitates the realization of other fundamental rights i.e. Article 19, Article 21, Article 21A, and Article 14 of our Indian Constitution, it must be declared as a part of the fundamental rights.


“Right to the Internet” as a facet of various other fundamental rights


In relation to Article 19(1)(a)-

The development of this right in protecting the medium of speech and expression can be traced back from numerous cases. The court has broader its interpretation by including the freedom to print[8], right to exhibit films[9], right to impart and receive information which includes freedom to hold opinions[10], freedom of press[11]under Article 19(1)(a). Recently, the Supreme Court has also declared “Right to access the internet” as a part of this article. The courts have many times emphasized the importance of the internet. In Maneka Gandhi v. UOI[12]– Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

In Gopalji Prasad v. State of Sikkim[13]– the court held that right to freedom of speech and expression can also be used by the mode of internet. In Shreya Singhal v. UOI[14]– the court struck down Section 66-A of the Information Technology Act as it is unreasonably putting excessive restrictions on the enjoyment of freedom of speech.

With the advent of technology, the internet has become the most important source of information than any other sources as compared to radio, newspaper. As in the latter sources, there is only one way of communication whereas the former there is two-way communication. It has now become necessary to make the right to the internet as a fundamental right and any restriction on the same must be in consonance with Article 19(2).



In relation to Article 19(1)(g) –

There have been drastic changes from the past decade until now. Now the internet has not only transformed the way of living but most of the people depend on the internet for their livelihood. From middle-class to multimillion, most of the people are in e-commerce platforms. According to the study undertaken by Google and A.T Kearney, the e-commerce alone would be a $60 billion industry in gross merchandising value by the year 2020[15]. Now the internet has become a major portion which contributes to Indian GDP. It is because of the internet we have so many successful Indian e-commerce startups. For example- Flipkart, Nyka, Snapdeal etc. Understanding how the internet has become the biggest platforms for trade and commerce it is no longer limited to retail shops. Even a single day of shutdown brings loss to so many people and the economy. It is therefore imperative that there shall be minimum shut down by the government because by doing this it violates Article 19(1)(g) of the Indian Constitution.



In relation to Article 21

Recently, Allahabad High court had registered a suo motu PIL over the suspension of the internet in Uttar Pradesh by very correctly observing that “The right to have continuous Internet Service in the present era is an extension of the right to live and, as such, discontinuation of that is in violation of Article 21 of the Constitution of India.”[16] The same approach was earlier adopted by Kerela High Court where it had declared the right to have access to the internet is part of the fundamental right to education as well as the right to privacy under Article 21 of the Constitution.[17] So this leaves room for consideration of including “Right to life” under Article 21.

As we have seen earlier our Hon’ble Supreme Court has consistently adopted the approach of broad interpretation when it comes to “Right to life” as by time and again the court had said that life is not restricted to mere animal existence rather the court has vouched for a complete, meaningful and dignified life and eventually expanded the right to include whatever they found essential to the life. Now if we look at the present world we can just realize how all of our life revolves around the internet where from disseminating government notifications/circulars to social benefits scheme by state all runs through the internet. Moreover, this COVID-19 time has made the Internet as a basic necessity as a concept like “work from home”, “e-learning” etc are becoming new normal. Thus the author is of view that to add a new dimension and meaning to “Right to life”, the inclusion of “Right to the internet” in it, must be considered.



In relation to Article 21A-

86th amendment of the Indian Constitution Act, 2002 inserted Article 21A, making the right to education as a fundamental right for all the children aged between 6-14 years. Even the Supreme Court in Mohini Jain Vs. State of Karnataka[18] declared right to education to flow from the right to life, where according to it the dignity of a person cannot be ensured unless accompanied with the right to education. Now coming to the present world scenario, Internet as a platform for imparting knowledge cannot be limited to higher education only rather it has a role to play for elementary and primary education as well. In 2016, the market for primary and secondary supplemental online education itself accounted for a massive USD 73 million.[19] Moreover, if we will deny internet for basic education we eventually end up denying a large section of Indian society with no internet to have online courses, diplomas or, even jobs to a certain level.


Conclusion-

We live in a democratic country where the most important thing is public participation. To maximize public participation, the government must give full access to internet subject to certain limitations. Acknowledging the imperative need to recognize the right to the internet, the government should safeguard the right not to disrupt it. Internet today is not only the mass of communication but also a means of livelihood. In the present Covid-19 situation, many people who are stuck in various places are using the internet to ask for help as they have no other means to communicate; also to revive the economy everyone is doing their business online. Courts should not see the internet as a façade to human rights but rather a much needed right. Now India is moving to a global economy, having multiple internet shutdowns without proper scrutinization as a prologue to a farce or a tragedy. Hence, it is important to recognize the right to the Internet as a part of fundamental right and restrictions must be made after scrutinization backed by logical reasoning.



[1] Internet users in India to reach 627 million in 2019: Report (Mar 06, 2019, 05.56 PM IST) https://economictimes.indiatimes.com/tech/internet/internet-users-in-india-to-reach-627-million-in-2019-report/articleshow/68288868.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.

[2]The UN Declares Internet Access a Basic Human Right, pastemagazine.com (2020), https://www.pastemagazine.com/tech/the-un-declares-internet-access-a-basic-human-righ/ (last visited May 10, 2020).

[3] Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, United Nations, General Assembly, A/HRC/17/27, (16 May 2011) http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf. (last visited May 11, 2020).

[4] Missouri v. Holland, 252 US 416.

[5] In Re Ramlila Maidan Incident, (2012) 5 SCC 1.

[6] Indian council for Enviro-Legal action v. Union of India, AIR 1996 SC 1446.

[7] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors, (2017) 10 SCC 1.

[8] Indian Express v. Union of India, (1985)1 SCC 641.

[9] Odyssey Communications Pvt. Ltd. v. Lokividayan Sanghatana, (1988) 3 SCC 410.

[10] Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.

[11] Privy Council in Channing Arnold v. King Emperor, AIR 1914 PC 116, 117.

[12] AIR 1978 SC 597

[13] [1981Cri. LJ 60]

[14] [(2015) 5 SCC 1]

[15] Archana Sharma, E-commerce in India will be $60B in GMV by 2020: Google – A.T. Kearney Study, MEDIANAMA (May 31, 2016), http://www.medianama.com/2016/05/223-online-retail-google-study/.

[16] Meera Emmanuel, Right to continuous internet part of the right to live: Allahabad HC registers suo moto PIL over the suspension of the internet in UP Bar and Bench – Indian Legal news (2020), https://www.barandbench.com/news/litigation/right-to-continuous-internet-part-of-right-to-live-allahabad-hc-registers-suo-motu-pil-over-suspension-of-internet-in-up (last visited May 15, 2020).

[17] Faheema Shirin v. the State of Kerala, 2019 W.P (C).No.19716/2019.

[18] (1992 AIR 1858)

[19] Online Education in India: 2021, KPMG AND GOOGLE 10 (May 2017), https://assets.kpmg.com/content/dam/kpmg/in/pdf/2017/05/Online-Education-in-India-2021.pdf.



Author Details: Riddhi Dagaand Akansha Uboveja are students at Hidayatullah National Law University, Raipur.


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