Access to internet as a constitutional right

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Introduction

The topic of access to internet as a constitutional right has become more relevant during the present situation of pandemic where majority of population is dependent on internet and it has become an unavoidable part of daily life. During lockdown, when the state boundaries were closed, it has come as a saviour breaking all those boundaries and connecting people to their workplace, schools, colleges, delivery stores etc. Internet is a place of communication, discussion, information, education and what not. It makes our life easy, fast and simple. Around 50% of the world’s population has access to internet mostly in developed and developing countries. In the era of globalization and digitalization, almost all services i.e., banking, education, healthcare, communication, media and information etc. are using internet-based tools partially or totally to serve their customers. The benefits that internet provides its users have started a debate whether states have obligation to build an internet infrastructure to provide its citizens a minimum speed of broadband to avail all those benefits. Constitution of different countries have vision of human development as their major objective. To achieve this these countries, need to create an environment which enables their citizens to achieve that development parallel to other countries.

United Nations Resolution on Right to Access to Internet

Internet access as a constitutional right has two aspects attached to it which government should fulfil. First aspect is that there should be an infrastructure that can provide a minimum speed of internet for all its citizens equally. The second aspect is that government should ensure that the access to internet is not restricted or limited without any reasonable concern or unlawfully and arbitrarily. The support to grant right to access to internet a constitutional validity has been proposed in many countries. Unfortunately, these countries have not been successful in achieving the same. Either they lack proper and necessary infrastructure or they don’t have laws against the unlawful and arbitrary suspension of internet or both. United Nations also declared Online freedom s a human right. The United Nations resolutions which is non-binding in nature declares right to access to internet as a human right. UDHR recognize internet access shall not be subject to any restrictions except in cases where it is sanctioned by law. It suggests that there should be public internet points accessible to everyone. Everyone is entitled to enjoy access to internet without any discrimination and there should be free, open and equal exchange of information. The access must be non-discriminatory and gender neutral. It suggests that government should ensure the security and privacy of its citizen online and protect them from online crimes like cyber-stalking, harassment, malware, phishing etc. Freedom of opinion and expression online, censorship, online protests, against hate speech, right to information, freedom of online assembly and association, right to privacy on internet etc. are few other human rights that are emerging in the digital era.

Digital Divide

The digital divide is a form of social split in which society is divided into two halves. This gap promotes inequality in society, putting the excluded at a disadvantage. The current digital divide between rural and urban areas, the new generation and the older generation, the privileged and non- privileged and the literate and the illiterate is quite high. In India, the digital divide problem remains because of social as well as technical issues. The social drawbacks include literacy rates, social status, language barriers etc. while the technical issues include the lack of technical infrastructure and technical education in backward areas. The government has started policies like free laptops ad smartphones at cheap rates which hardly brought any success as the people had no knowledge how to even start the devices. The government must focus on the steps where people can understand the functioning of those laptops. The other problem is that internet is either not available or unaffordable for people in backward areas. To bridge this digital gap, government must look into these factors to address all those issues. Digital literacy is important to bring permanent change in the society otherwise the non-users will continue to suffer.

Right to Access Internet in Different Countries

Estonia – The origin of the transformation of Estonia may be traced back to 1991. The Estonian policymakers led the country into a position where it could leapfrog to the future, putting their confidence in the rising potential of the internet and the importance of technology. Estonia become one of the world’s sophisticated e-societies. They continuously invested in developing the great infrastructure to establish a digital society. Rather than one all-encompassing system, it is built as a decentralised with a linked series of networks programme. Estonia is a global pioneer in internet freedom and is well known for its innovative approach to e-governance. It has low restrictions on internet access, fewer restrictions on online content, and strong user rights safeguards. The digital infrastructure of Estonia is so strong and huge that nearly 90% of the homes have internet connection. Internet speed of the country is also improving and around 80% of houses have internet speed of 30mbps or more. The status of digital divide in Estonia is negligible and only present in few sparsely populated rural areas. Estonia ranks 20 out of 100 countries in terms of the affordability of internet services. The government has no technological or legal control over the internet in the Estonia. There were no government-imposed limitations or disruptions to internet connection. Even in times of emergency, the government does not have clear legal power to turn off internet access. Estonians enjoy access to a wide range of internet information, with the government blocking or filtering just a few resources. In Estonia, just a few websites are restricted, and users can easily access political, social, and cultural material. The prohibition of online illicit gambling websites remains the most significant restriction on internet content. Although there have been occasional cases of internet content being deleted, this is not a common occurrence. Many of these cases include civil court orders to delete defamatory statements. Restrictions on internet material are well-defined and legally sound. The constitution and the country’s duties as an EU member state safeguard online freedom of expression. The use of encryption and anonymity are both unrestricted. However, there are still worries regarding the government’s keeping of metadata. The quantity and intensity of cyber-attacks against the state’s infrastructure have been reduced.

China – China is on number one spot on world’s worst abuser of internet freedom as the internet users have minimum online freedom and the government controls all the information that are available online. The Great Firewall of China is a system which the state uses to block the information of outer world. Many famous websites like You tube, Google and Facebook are blocked completely in China. The advancement of technology and emergence of artificial intelligence augment the exiting security measure and China’s Great Firewall is only becoming stronger. Few examples of China’s censorship are that when China was able to demonstrate its dominance in censorship by outright prohibiting cryptocurrency trading. With international cryptocurrency exchanges being banned and domestic exchanges being pushed to migrate outside, the sector vanished, almost as if it had never existed. Even more whimsical products, such as Winnie the Pooh, are prohibited on the internet in China. began in 2013 when a photograph of Xi Jinping and then-President Barack Obama prompted comparisons of the President’s appearance to that of Winnie the Pooh resulting in Chinese censors began removing the photos and deleting them, thus banning Winnie the Pooh from the whole country. Other more important issue, such as the 1989 Tiananmen Square Massacre, are banned from the Chinese internet. This pro-democracy rally, which resulted in the deaths of an estimated 10,000 Chinese civilians, is completely absent from the Chinese internet. When compare the results of the search engines between Google and Baidu, a prominent Chinese search engine about the day of massacre, the results are very concerning. This provides the Chinese government unrivalled influence over its citizens’ thoughts by influencing them with forbidden and considered unsuitable information. The Chinese Government uses IP blocking, DNS poisoning and manual censorship to block and remove unauthorised content on internet.

Right to Access to Internet – Indian Scenario

India is second in the number of internet users around the world. As per 2021, Telecom Regulatory Authority of India report the number of internet users in India is around 825.30 million. But India is also the country with highest number of internet shutdowns in the world. India’s internet shutdowns are often found wanting of legitimate reasons and continuing with bizarre justifications. Internet is suspended as a routine practice during the protests in the country. Jammu and Kashmir is the state with the highest number of internet shutdowns. The internetshutdowns.in shows the state wise breakup of internet shutdowns in the country reports that shutdown has continuously been rising since 2012. The data shows that the number of internet shutdowns in the year 2018, 2019 and 2020 are 134, 106 and 129 respectively. Till March 2021, India has witnessed around 11 internet shutdowns.

In India, right to internet access surfaced in the case of Faheema Shirin v. State of Kerala[1]. The issue in the case was that a women’s hostel in Kerala had restrictions on use of mobile phones and internet after 6 p.m. as per the disciplinary rules of their hostel so that the students utilise their time for study purpose only. The petitioner argued that the restrictions are arbitrary and infringes her right to speech and expression, right to education and right to privacy. The petitioner contended that Kerala has recognised right to access the internet as a human right and its ‘‘mobile first approach for e-governance services’’ policy aims to provide access to internet to its citizens.  The judgement in the aforementioned case states that in the age of online learning, these restrictions are restricts the flow of ideas and discussion which are important for quality and standard education. The Court also referred to the importance of information and communication technology suggested in United Nations Resolutions. It stated that internet is important tool for digital literacy and is a part of the fundamental right to education enshrined in Article 21A of Indian constitution. Internet is a tool which provides platform to exchange your views and ideas and receive information which comes under the right to freedom of speech and expression under article 19(a) of the Indian Constitution.

In the case of Anuradha Bhasin v. the Union of India[2], the petitioner challenged the restriction on mobile internet services in Jammu and Kashmir. Petitioner approach the Supreme Court under Article 32 of Indian constitution against the orders which was passed by respondents to shut down and restrict any/all modes of communication including internet. The Supreme Court in its judgment said that article 19 (1) (a), freedom of speech and expression cannot be restricted without adequate justification. Internet is an enabler of other fundamental rights, such as freedom of speech and expression, freedom of trade, right to education, etc. and the suspension of the internet must be proportionate and the restrictions must be reasonable as mentioned in article 19 (2) Indian constitution and must be sanctioned by law. A restriction must not be arbitrary or excessive to affect public interest. The doctrine of proportionality must be followed by the authorities before passing any order, intending or restricting fundamental rights of individual taking into consideration the facts and circumstances of the case. The government responded that after the abrogation of article 370 it became necessary to suspend/restrict any/all form of communication including internet because it could be used to propagate terrorism in that territory. The preventive measures were essential to avoid any danger to national security. The Honourable court stated that state has power to impose reasonable restriction but there must be a balance between national security and liberty. Court issued guidelines that must be followed in case of internet shutdowns. It said that the competent authority must publish the order imposing restriction, which can be challenged by the affected person in the High Court or any r element forum. A rule of publication or notification of the orders passed is not present in Temporary Suspension of Telecom services (Public Emergency or Public safety) Rules, 2017. Supreme Court also said that any order passed under Section 144 of CRPC should not be repetitive and continuing in nature otherwise would be an abuse of power. The court said that order issued under the 2017 rules of Suspension of Telecommunication Services is subject to judicial review. That judgment emphasizes that right to freedom of expression and profession through the medium of Internet is a fundamental right.

Conclusion

Internet has become the most powerful tool in the present times. It provides ample of opportunities to people around the world. A person can experience whatever and go wherever he/she wanted to be and is not limited by his/her physical self. But the lack of adequate infrastructure and affordability factor have realized the need of basic standards when it comes to internet access. The digital divide and internet shut downs across the globe are violations of basic human rights. Without having the tool/medium i.e., internet, how can anyone realize basic human rights like right to opinion and expression, right to education, right to information etc. While many developed and developing countries are experiencing fourth industrial revolution, there are other backward nations which do not have fully experienced the second industrial revolution because of this digital divide. The most successful, stable and prosperous societies in the world are those societies where few inequalities are present. Online censorship and internet shut downs are other reasons which violates the basic human rights guaranteed to people. Many a times these steps are politically motivated and aim to supress dissent and regulate the internet compromising free speech and free flow of information. It also negatively impacts the economy of the country. Although there are some advantages of internet censorship and shutdowns like national security, removing hate speech, blocking illegal activities etc. But the disadvantages outweigh the pros. The world needs to realize the potential of internet and governments must give right to access internet legal status.


[1] Faheema Shirin R.K. v. State of Kerala, 2019 SCC OnLine Ker 2976.

[2] Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

Author: Saurabh Chauhan, Rajiv Gandhi National University of Law, Punjab

Editor: Kanishka VaishSenior Editor, LexLife India.

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