A Juridical Study on Right to Internet by Shivam Tripathi

A Juridical Study on Right to Internet

Author: Shivam Tripathi

Abstract

            As many years ago mankind used to mostly perform physical labor for their living. Then gradually because of intellectual thinking man has transformed their physical work. This process of transformation is continuing with the aim to make the lives of sapiens easy and comfortable. Analyzing the period of Covid 19, which has transformed the lives of sapiens in many ways, one of the prominent ways which glance at the ray of the future is the dominance of the work culture through the medium of the Internet. One has never thought about the steady and significant development of the internet. Under the realm of law and social transformation, it is always contradictory thought in one's mind whether the law changes the society or it is the society that changes the law. Analyzing the dowery protection act and many other laws we saw how society changed through the law. In this paper, we will see how society backs up certain laws to be implemented by referring to the Right to the internet. Currently right to the internet faces two views one being under the arena of Freedom of speech and expression, and the other being the right to access the internet. This is the century of digital revolution around the globe. And accordingly, there is a transformation in every major sector to be online. In the current situation, it is now not only necessary to recognize the right to the internet but also advocate for universal access to it.

1. INTRODUCTION

Indian Constitution is known to be the longest-written Constitution among all sovereign states.[1] The living and dynamic nature of this constitution has implanted and recognized a lot of new rights to enhance the livelihood of mankind. One of these rights would be the right to the internet. It is one of the concepts which was never discussed in the constituent assembly. It is a proud moment for all of us that the Indian Judiciary is recognizing the relevance of the internet in our laws whether we talk about data privacy or the right to be forgotten.[2] Remembering one of the developing concepts in today’s era i.e., the right to the internet signifies the nature of The Indian Constitution as the Living Law,[3] which is always evolving and adopting new jurisprudence. We need to understand this concept in relation to the school of jurisprudence. In this paper, we would be analyzing the right to access the internet through the aspect of analytical law school and natural law school. It is also very delightful to see a very new evolving concept like the right to the internet through the old jurisprudential approach.

1. Evolution of the right to access the internet.

The first Indian High Court acknowledged that, in accordance with Article 21 of the Constitution, the right to Internet access is a component of the rights to privacy and education in Fahima Shrin v. State of Kerala[4] in 2019. In keeping with the precedent set by the Faheema Shirin case, the Supreme Court of India issued a second historic decision.

The abrogation of Article 370[5] from the Indian Constitution has created temporary disarray in Kashmir. To curb the confusion, the administration of Jammu & Kashmir tried to impose Section 144 of CrPC[6], but nothing seemed to be effective in controlling the situation. Taking cognizance of the issue, the government restricted the internet facilities in Kashmir by pleading the reason for apprehension on the security and integrity of the state.

Anuradha Basin, the vocal journalist of the Kashmir Times, brought a petition in front of the Supreme Court alleging the conduct of striking down the internet access has caused a violation of her fundamental right under Article 19 (1)(a)[7] and Article 19(1)(g)[8] that is freedom of speech and expression and also the freedom to practice any profession or carry on any trade, business, or occupation respectively. The Supreme Court in its unanimous judgment authored by Justice N.V Ramana on behalf of Justice R. Subhas Reddy and Justice B.R Gavai while balancing between the liberty and security concept, quoted the Lon L Fuller statement that says “There can be no greater legal monstrosity than a secret statute”[9] The reason for this quotation was that the government has not provided the reason for the imposition of such restriction as mandated under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 and the government is claiming the privilege in not stating the reason as that would be against the security and integrity of the country. But later it was observed that the restriction was solely based on an apprehension that there might be some violations of the law-and-order situation.

Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion. The Internet also plays a significant role in the arena of trade and commerce.

1. Analytical school approach in right to access the internet.

Right to the internet through Positivism

According to the Anuradha Basin vs Union of India,[10] the right to access the internet has been declared to be a fundamental right under the realm of Article 19 (1)(a)[11] and Article 19 (1)(g)[12] which states the freedom of speech and expression and freedom to practice any profession or carry on any trade, business, or occupation respectively. As positivism talks about the ‘is’ and ‘ought’ laws, in this context let us look at how the judiciary plays an important role in interpreting Art 19 to widen the fundamental right concerning internet access. Let’s refer to Article 19(1)(a)[13] - the freedom of speech and expression that is regarded as the ‘is’ law and Article 19(1)(g)[14] - the freedom to practice any profession or carry on any trade, business, or occupation that is also an ‘is’ law. Both these Articles have brought a concept of the right to access the internet that was the ‘ought’ law. Thereby, we can say that through the judicial pronouncement of the Anuradha Basin vs Union of India[15] the ‘ought’ law that is the right to internet access is being converted into the realm of ‘is’ law. The positive school of jurisprudence says that the law is as it is and not the law as ought to be. Therefore, we can say that every ‘is’ law has been brought from the realm of the ‘ought’ law.

Hence the judgment given by the Supreme Court made the right to access the internet the black letter law which is the codified law, and which is to be followed by all as it is the command from the sovereign.

Right to the internet through Utilitarian

According to the utilitarian theory of Bentham, where he quotes that “Nature has placed mankind under the governance of two sovereign masters, pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On the one hand, the standard of right and wrong, on the other hand, the chain of causes and effects, is fastened to their throne. They govern us in all we do, in all we say, in all we think: every effort we can make to throw off our subjection, will serve but to demonstrate and confirm it. In words, a man may pretend to abjure their empire but in reality, he will remain subject to it all the while. The principle of utility recognizes this subjection and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reason and law. Systems which attempt to question it, deal in sounds instead of sense, in caprice instead of reason, in darkness instead of light.”[16]

According to Jeremy Bentham, Utilitarianism theory states that the greatest pleasure to the greatest number and the lesser pain to the lesser number. According to Bentham, the government should be obliged to such policies that could give the greatest good or happiness to greater members. Now referring to the above case in this aspect makes it very clear that the government should be providing the greatest good to the greater number and shouldn’t restrict access to the internet as mentioned by the Supreme Court it is a fundamental right under the Article 19 (1)(a)[17] and Article 19(1)(g)[18] subject to the reasonable restrictions mentioned under the Article 19(2)[19] and Article 19(6)[20] respectively.           

1. Natural law school approach to the right to access the internet.

Natural law school is based on reasons which are just, fair and reasonable and it is also considered to be based on some sort of higher principles. Jurists of this school believed that the reason is been induced in men by God.

Now if we have rights enriched by God then the right to expression would be among the top rights. It is evident from the fact that men have the facility to communicate with others through their biological organs, these biological organs are the blessing of the divine to us. That seems we all have the right to expression as a natural right.

If we relate the Anuradha Basin case[21] with the natural law approach, then we will find that freedom of speech and expression is a fundamental right and also it gives the right to expression which is a right under the natural law. So accordingly, conveying speech and expression is protected under the fundamental right and the natural law. So that means any obstacles hindering the act of speech and expression would amount to a violation of the natural right and fundamental rights.

Now in the case of Anuradha Basin case, we could see that the government has imposed restrictions on access to the internet, which caused the violation of the freedom of speech and expression as the restriction of access to the internet has upheld the medium of expression of the general public. That means the act of government was a violation of the fundamental right i.e., freedom of speech and expression and which is also a violation of the natural right.

So, the Supreme Court in its judgment taking the view of protecting the right to an expression which is the inherent right of a person through the means of the internet has declared it as fundamental under the ambit of Article 19(1)(a)[22] of the Indian constitution. As internet is considered to be one of the mediums to express our thoughts to others.

1. Recent Instances and recommendations

On 10th January 2020, the honorable Supreme Court delivered its judgment in the Anuradha Bhasin v. Union of India case[23]. After this judgment, there were several instances where states declared internet shutdown, however, difficult to find any copies of legal orders on the government websites. Some of these instances are listed below:

• On 31st January 2020, the mobile internet facilities were on hold in Jabalpur Madhya Pradesh and the reason for the suspension was the apprehension of protests against the Citizenship (Amendment) Act 2019.[24]
• On 28th February 2020 mobile internet facilities were suspended for 48 hours in 6 districts of Meghalaya after the clashes over the Citizenship (Amendment) Act 2019.[25]
• On 27th February 2020 mobile internet facilities were suspended for 48 hours by the District Magistrate of Aligarh after the classes over the Citizenship (Amendment) Act 2019.[26]
• On 26th January 2021 internet services were shut down for 24 hours in Delhi NCR, for the apprehension of protest against the Farm Bill.[27]
• On 16th March 2022 - In Jhunjhunu, the internet was turned off for 12 hours so that a religious procession could pass without any unrest among the locals.[28]
• On 4th April 2022, Karauli's internet was cut down after communal confrontations.[29]
• On 3rd May 2022 - Fresh communal riots in Jodhpur on Eid, a curfew was imposed, internet was halted.[30]
• On 5th May 2022 - After two persons were assaulted by miscreants, internet services were shut off in Bhilwara. [31]
• On 11th May 2022 - Due to unrest around the suspected murder of a 22-year-old teenager, internet connections in Bhilwara were suspended. Several organisations then assembled and protested.[32]
• On 13th May 2022, in Rajasthan due to unrest following the attack on a VHP leader another internet blackout occurs.[33]
• On 10th June 2022 - Due to threats against MLAs, internet services were shut down in the Rajasthani district of Amer.[34]
• On 22nd Nov 2022 Internet services were suspended in the 7 districts of Meghalaya after a clash between police and locals, etc.[35]

The court in the Anuradha Basin case[36] made the right to access of internet a blackletter law under the realm of freedom of speech and expression and freedom to practice       any profession or carry on any trade, business, or occupation.

After proper analysis of the directions of the honorable Supreme Court in the Anuradha Bhasin v. Union of India case, I would like to mention the central and state government’s machineries to comply with the judgment and I would like to suggest the government that whenever an order is issued for internet shutdown, a copy of it should be uploaded on the government websites and the same should be circulated through media.

Both positive and negative aspects may be included in a prospective Fundamental Right to the Internet. The state shall be subjected to an affirmative responsibility under the positive character to set plans and regulations in place to guarantee that everyone has access to the internet and is not left out of the cyber world. The negative aspect will assure that the state doesn't somehow obstruct or arbitrarily hinder one's ability to utilize the internet.

     International Recognition

The fact that different Nations, Judiciary, and UN authorities have acknowledged the positive and negative aspects of such a right show how the “Right to Internet Access” is becoming more and more well-known on the global forum. However, while they do not officially acknowledge a “right to internet access,” certain forums do acknowledge the significant role that the internet plays in the fulfillment of basic rights.

The 2011 report of United Nations Special Rapporteur on Freedom of Speech and Expression Frank La Rue[37] is one of the most significant texts discussing the right to internet access in all of its aspects and facets. The Special Rapporteur's report was the first international document to recognize and study the right to internet access in depth. According to the Special Rapporteur's report, the right to internet access is based on two rights:

1. the freedom of speech and expression guaranteed by Article 19 of the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR); and
2. the right to “search, receive, and impart information.”[38]

The Special Rapporteur’s arguments are not limited, but they generally follow the movement to recognize the “right to communicate,” a fundamentally good right with a long history in the international sphere.[39]

1. CONCLUSION

The Supreme Court in the Anuradha Basin case had approached the right path but somehow it could not provide any relief to the people of Kashmir who had lived there without proper internet and communication system. This judgment had rooted the essence of the right to the internet and now it requires continuous monitoring and follow-up action to ensure the government complies with the progressive principles and procedural safeguards laid down by the Supreme Court. This case is going to be the beam of expectation in anonymity as the court held freedom of speech and expression over the web is the principal right. Web closures puts end to the speedy working for the different necessities and also rises the hindrance to the development of the state.

In the aftereffects of an epidemic, most activities will take place in virtual environments, which will restrict everyone without the internet access. It should be acknowledged, that the epidemic merely served as a catalyst for speeding and that the internet was already expanding quickly by encompassing almost all industries. The Indian Judicial pronouncement has gradually opened the path for the creation of a dedicated Fundamental Right to access the internet by acknowledging the significance of the internet. The first step would be to acknowledge internet connectivity as a separate Fundamental Right in order to ensure that it isn't only a luxury enjoyed by the wealthy and to ensure that there aren't many restrictions placed on its use.

There are many ‘oughts’ laws still not recognized under the ambit of ‘is’ law in the ongoing revolution of the internet. The non-recognition of the ‘ought’ law in the sphere of the right to the internet has increased the scope of vagueness, which often tends to create arbitrary decision-making on the part of the executive which defeats the very purpose of the rule of law. In the current situation, it is now not only necessary to recognize the right to the internet but also advocate for universal access to it.

[1] R Rakshitha, Constitution Day: World's longest, Indian Constitution Is Unique In Content, Spirit, THE LOGICAL INDIAN, (Nov. 26, 2020, 04:23 PM), https://thelogicalindian.com/trending/constitution-day-2020-unique-features-of-indian-constitution-25072.

[2] Zubair Ahmad, Right to be forgotten, MANUPATRA (Aug. 23, 2022, 9:29 PM) https://articles.manupatra.com/article-details/Right-to-be-forgotten.

[3] Utkarsh Shara, Right to internet and fundamental rights, LEGAL SERVICE INDIA (Aug. 27, 2022, 9:29 PM) https://www.legalserviceindia.com/legal/article-2967-right-to-internet-and-fundamental-rights.html.

[4] Faheema Shirin R. K v State of Kerala & Ors, WP (C) No. 19716 of 2019.

[5] INDIA CONST. art. 370.

[6] The Code Of Criminal Procedure, 1973, § 144, No. 2, Acts of Parliament, 1973 (India).

[7] INDIA CONST. art. 19, § 1, cl. a.

[8] INDIA CONST. art. 19, § 1, cl. g.

[9] Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71, Harvard Law Review, (1958).

[10] Anuradha Basin vs Union of India, W.P. (C) no. 1031 of 2019.

[11] INDIA CONST. art. 19, § 1, cl. a.

[12] INDIA CONST. art. 19, § 1, cl. g.

[13] Id. 11.

[14] Id. 12.

[15] Id. 10.

[16] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 14 (Batoche Books 2000).

[17] INDIA CONST. art. 19, § 1, cl. a.

[18] INDIA CONST. art. 19, § 1, cl. g.

[19] INDIA CONST. art. 19, § 2.

[20] INDIA CONST. art. 19, § 6.

[21] Supra note 10.

[22] INDIA CONST. art. 19, § 1, cl. a.

[23] Supra note 10.

[24] Soumyarendra Barik, Internet Shutdown in Jabalpur as ‘Precautionary Measure’ Against Anti-CAA Protests, MEDIANAMA, (Jan. 31, 2020, 10:00 PM), https://www.medianama.com/2020/01/223-internet-shutdown-jabalpur.

[25] THE TIMES OF INDIA, http://timesofindia.indiatimes.com (last visited Dec. 6, 2022).

[26] BUSINESS STANDARD, https://www.business-standard.com (last visited Dec. 6, 2022).

[27] Ashni Dhaor, Farmers protest: 50 million subscribers hit by internet shutdown in NCR, INDIA TODAY (Jan. 27, 2021, 01:40 AM), https://www.indiatoday.in/india/story/farmers-protest-50-million-subscribers-hit-by-internet-shutdown-in-ncr-1763019-2021-01-26

[28] Milan Sharma, India’s internet shutdowns: Looking beyond J&K, Rajasthan the new hotbed, INDIA TODAY (Jul. 03, 2022, 11:14 PM), https://www.indiatoday.in/india/story/india-internet-shutdowns-looking-beyond-j-k-rajasthan-new-hotbed-1969664-2022-07-03.

[29] Id. 28.

[30] Id. 28.

[31] Id. 28.

[32] Id. 28.

[33] Id. 28.

[34] THE ECONOMIC TIMES, https://economictimes.indiatimes.com (last visited Dec. 6, 2022).

[35] Bikash Singh, Meghalaya govt extends internet suspension by another 48 hours, ETPRIME, (Nov. 24, 2022, 09:28 PM), https://economictimes.indiatimes.com/news/india/meghalaya-govt-extends-internet-suspension-by-another-48-hours/articleshow/95747239.cms?from=mdr.

[36] Supra note 10.

[37] Frank La Rue, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, A/HRC/17/27/Add.1 (May. 27, 2011, 9:29 PM), https://digitallibrary.un.org/record/706200?ln=en

[38] Kartik Chawla, Right to Internet Access - A Constitutional Argument, 7 Indian J. Const. L. 57 (2017).

[39] Jonathon W. Penney, Internet Access Rights: A Brief History and Intellectual Origins, 38 William Mitchell Law Review 11, 18 (2011).