Right to Internet A Fundamental Right and An Aspiring Fundamental Right

Right to Internet A Fundamental Right and An Aspiring Fundamental Right

Name: Jagriti Medhavi

College: National University of Study and Research in Law


INTRODUCTION

Technology without human rights embedded on it can fast become a tool of oppression’.

- Renata Avila

The Internet is another world of its own, one click and you enter altogether another world, a world full of opportunities, choices, connections, communications, facilities and many more. Also, internet today offers a platform of debate and discussion and holds lot of first hand informations, if a person is left out of internet he is left out of a whole total platform, opportunity, and right of being informed what all is happening all around him, the world is running fast and internet is a medium while you catch up with it.

It offers lots and lots of facilities and opportunities, as it has job opportunity sights, scholarships, facilitates buying and selling in short a decade ago internet might be a luxury but today it is a necessity. A requirement of which if one is deprived of, then a great injustice will occur to the person. And in this age, it would be a grave injustice to the poor if the perks of internet confines only to rich, or it is restricted or censored on the whims and fancies of the government serving the interest of the government. Therefore, it is suggested that it should be the duty of the governments across the world to ensure the right to access the internet, human right, to its government.  

Therefore, after many years of debate and discussion in 2016 United Nations Human Rights Council released a non-binding resolution declaring the right to access the internet as a human right stating that whatever rights a person have offline should be protected online too and therefore condemned the acts of governments across the world restricting or censoring the internet.

However, when the UN declaration was passed India with countries like Indonesia, South Africa, Saudi Arabia, China and Russia opposed it. But recently in April 2017 a bench of Hon’ble Supreme Court while listening to an ongoing case headed by Hon’ble Justice Deepak Mishra, declared right to access the internet as a human right the bench said that

“Right to Internet Access is a part of Fundamental Right of Expression, and every citizen has the right to be informed and the right to know and the feeling of protection of expansive connectivity”[1]. Also, this year Kerala became the first state in the country to declare Internet access as a human right. But Right to the internet needs way more attention as a fundamental right than this judgment.

High-speed internet connectivity is a basic and human right in many of the developed countries. In 2010, Sweden became the first country to declare broadband Internet as a legal right for every citizen. Canada followed the suit last year, ensuring that every resident was entitled to Internet access at a minimum speed of 50 Mbps. In this incredible digital age, where the government of India is on a mission to move towards a cashless economy and promote e-governance and digitalization, access to the Internet is absolutely essential. And therefore in this research paper, we will further discuss more factors as to how the right to the internet is an enabler of other fundamental rights and should be given more attention and vigilance.

HUMAN RIGHTS

Human rights are moral principles or norms that describe certain standards of human behavior and are regularly protected as legal rights in municipal and international law[2]. Indian constitution to recognizes these rights for example right to freedom of speech and expression which is a human right[3] is protected by Art. 19 (a) of the constitution of India. In this section, we will discuss how a violation of Internet is a violation of important human and fundamental rights of the nation.

RIGHT TO SPEECH AND EXPRESSION AND RIGHT TO INTERNET

Democracy is based essentially on free debate and open discussion, for that is the only corrective of government action in a democratic setup. If democracy means the government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his rights of making a choice, free & general discussion of public matters is absolutely essential[4].

The Internet has reduced barriers to communication. It is a great enabler of the fundamental right to freedom of speech and expression. This needs to be protected for everyone. The Internet provides such an elevated platform of debate and discussion from which it becomes very easier to challenge traditional power structures. While this new platform provides limitless opportunities for the realization of freedom of expression, with it the ‘possibilities for human rights violations have also grown exponentially.

If Internet will be subjected to the desires of a government a fundament right as guaranteed by Art. 19 of the constitution and human right as guaranteed by Article 19 of UDHR will stand violated also another important reason for right to internet to be a fundamental right is right to speech and expression should not be limited to rich who can afford internet the government must take measure to implement this fundamental right to make sure it reaches everybody.

But nowadays the ease with which the Internet contributes to the dissemination of information and opinion has been met with astounding government backlash, due to its potential catalytic effect on social and political activism.

In many cases, contents are removed on the plea of protecting the public tranquility. Obviously, right to freedom of speech and expression is not absolute and therefore neither right to the internet was held in the case of West Bengal v. Subodh Gopal Bose[5]

“The right that springs from Article 19(1) is not absolute. There cannot be any liberty absolute in nature and uncontrolled to such extent that confers a right wholly free from any restraint. Had there been no restraints, the rights and freedoms may be synonymous with anarchy and disorder.”

But also as was held in the case of Maneka Gandhi v. UOI[6]

“The principle of reasonableness, which legally is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be correct,  just and fair and not arbitrary fanciful or oppressive otherwise it would be no procedure at all and therefore the requirement of Article 21 would not be satisfied.”

The reasonable restriction should not be used as a tool to restrict the right to the internet. As was held in the case of  Romesh Thappar v State of Madras[7]the Supreme Court of India held that the freedom of speech and expression includes freedom to propagate ideas which are ensured by freedom of publication and circulation of publication, as publication is of no value without circulation. Patanjali Sastri, J., rightly observed that-

‘Freedom of Speech and of Press are the foundation of all democratic organizations, for without which free political discussion will not take place”

And the rights which are protected offline should be protected online too. Therefore, acts like censorship, website blocking, self-censor should not be encouraged by the government in the name of reasonable restriction.

RIGHT TO KNOW AND RIGHT TO INTERNET

Right to know is a human right guaranteed by both Art. 21 and 19 India, in the case of R.P Ltd v Indian express newspaper it was held that

Right to know is a necessary ingredient of a democracy. In an era of development and growth of technology, it is important that the term expressive legislation to give a wider scope. It should wide enough to expand full range of right to hold a particular opinion and right to sustain, analyze and nurture that opinion, Article 21 confers on all person the “right to know” which include right to receive information. 

Talking of Right to freedom of speech and expression Article 19(1)(a) of the constitution guarantees the fundamental right to free speech and expression. The prerequisite for enjoying this right is knowledge and information. Therefore, the Right to Information becomes a constitutional right, being an aspect of the right to free speech and expression which includes the right to receive and collect information. 

Also, in the case of PUCL v UOI[8], the supreme court observed that

“fundamental right themselves have no fixed content, most of them are an empty vessel into which each generation must pour its content in the light of its experience.The attempt of the courts all over India should be to expand the reach and ambit of the fundamental rights by the process of judicial interpretation and activism. There cannot and should not be any discrimination between fundamental right mention in chapter III of the constitution and the declaration of such right on the basis of the judgment rendered by the supreme court.”

The Internet provides such a range of knowledge that one cannot even imagine it’s not about just about knowledge or journals or studies it provides knowledge about day to day whereabouts starting from job opportunities, elections, news till the bottom of discounts in your nearby grocery shop. Going by the judgment in PUCL v. UOI[9], it can be inferred that restricting internet or not treating it as a fundamental right would be an abomination of the very right to life itself which is the core of Human right.[10]

RIGHT TO EQUALITY AND RIGHT TO INTERNET

The concept of equality of law finds palace in all written constitutions. All citizens irrespective of birth, religion, sex, caste or race are equal before the law; that is to say, therefor there shall not be any arbitrary discrimination between one citizen or class of citizens and another. All citizens shall, as human persons should be held equal before the law.

Article 14 of the Constitution of India reads as under:

 “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

Right to equality again is a very core Human Right which should not be infringed at any cost guaranteed by Art. 7 of UDHR.

In our country Art. 14- 18 deals with Right to equality. As has been discussed earlier that internet is no  longer just a luxury which should be rather remain subjected to a person income. It cannot be left on the scale of affordability any more.

The Internet is a world of knowledge, opportunities and possibilities India guarantees every child a right to education under article 21, does every child do not have the right to get atleast same basic educational resources.

It would be totally unjustified to keep a lot totally in the darkness, the world is running fast and mediums such as internet can be used to keep up with the pace if internet would not be made a fundamental right it’s importance would not be taken much seriously it would become subject to election campaigns and government bureaucracy.

The percentage of persons below the Poverty Line in India in 2011-12 has been estimated as 25.7% in rural areas, 13.7% in urban areas and 21.9% for the country as a whole which means India has 270 million people living below the poverty line[11]. So will we be keeping this whole lot in darkness and backwardness.

This would be a straight violation of Right to equality as same opportunities will not be provided.

The directive principles in our constitution indicate that the government should strive to bring development and prosperity and uplift the economically weak. If a whole lot is left behind on the basis of not getting what is a necessity today then it would be the death of the spirit of democracy itself.

Also in the case of Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal[12]  “it was held that every citizen has  a fundamental right to impart as well as receive information through the electronic media. A broader meaning of “electronic media” can definitely mean Internet as well.”

CONCLUSION

In summation, this paper has attempted to determine why the right to internet access need a status as an important fundamental right or human right in a democratic country like India. The internet is an enabler of important fundamental rights such as the right to life and freedom of speech and therefore, by extension, it enables other human rights. It is for this reason access to the Internet should be protected. Ensuring access to the Internet is not the solution to all of the  problems, but it would be an initiative against many for example it would guarantee that people will not be harassed for what they post on the internet or it would be a step towards guarantying a better education to those who cannot afford it.

 It is not incorrect to state that the Internet creates as many problems as it seeks to resolve, especially in light of the current practice among states regarding the use of the Internet for surveillance and cyber-attack also it would demand a lot more vigilance from the side of government because of threats of terrorism and riotism. But every fundamental right can be misused in one or another way it does not mean they should be abolished. The internet is an enabler of freedom of expression and therefore, by extension, it enables other human rights. It is for this reason access to the Internet should be protected. Ensuring global access to the Internet is not the solution to all of the world’s problems, but it would alleviate some of the problems faced. It is not incorrect to state that the Internet creates as many problems as it seeks to resolve, especially in light of the current practice among states regarding the use of the Internet for surveillance and cyber-attacks education. The socio-economic development opportunities created by the Internet are undeniable. By denying the ability to access the Internet states are not only denying individuals the opportunity to be part of this new virtual culture, but they are also negatively impacting economic opportunities.


[1] Mohul Ghosh, Right To Internet Access Is A Fundamental Right Of Every Indian; Cannot Be Allowed To Curtail: Supreme Court, TRACK.IN, (April 14, 2017), http://trak.in/tags/business/2017/04/14/right-internet-access-fundamental-right-every-indian-cannot-allowed-curtail-supreme-court/

[2]Macmillan Dictionary, human rights - definition, Retrieved August 14, 2014, "the rights that everyone should have in a society, including the right to express opinions about the government or to have protection from harm"

[3] Article 19 of UDHR

[4] Maneka gandhi

[5] AIR 1954 SC 92                      

[6] AIR 1978 SC 597

[7] AIR 1950 SC 124

[8] (1997) 3 SCC 433

[9] (1997) 3 SCC 433

[10] Art. 3 of UDHR

[11] Press Note on Poverty Estimates, 2011-12, Government of India Planning Commission July 2013, New Delhi: 22 July, 2013

[12] ( 1995 AIR 1236)


Disclaimer: The opinions expressed in the article or any other publication are those of the authors. They do not purport to reflect the opinions or views of Sadvidya or its members.

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