RIGHT TO INTERNET ACCESS: A NECESSITY
“Right to life is an inalienable and inherent right of every human being.”
“To deny people their human rights is to challenge their very humanity.”
– Nelson Mandela
In this modern era, when the life of every individual is revolving around internet then it is high time to consider right to internet be included as a legal or human right. Focusing on the dependence of modern world on the internet, this paper is basically trying to analyze the relation of right to internet with various legal rights like right to life, right to freedom of expression and so on. The primary objective of the fundamental or human rights is to grant basic necessities to every individual. Slowly and gradually, with the passage of time, Internet has also become one of the basic necessities so the ambit of fundamental rights should be extended for the inclusion of right to internet in it. Right to life and personal liberty is the most fundamental human rights around which other rights of the individual revolve. As soon as the power of internet and web is increasing, the government and organizations are trying to control and limit. So, now an important question has arises whether these rights also needs to be protected. This study focuses on the understanding of Article 21 in a new way after Maneka Gandhi’s case which has been able to introduce a new era of expansion of the horizons of this right. The wide dimension given to this right is now covering different aspects which can not to be read narrowly. This revolution which is stated above in the fundamental concept makes it the primary concern that the concept of right to life and personal liberty should be analysed with referring to development along with a new approach. This research paper comprehensively examines the broad interpretation of article 21 of the Indian Constitution and explores the reasons for such liberal interpretation when there is no such mandate by the framers of the constitution and whether its scope can be enlarged according to changing and diverse needs of the society. This research tries to analyze whether right to internet can be considered as a as human or fundamental right in modern era.
In the 21st century, Internet has become a integral part of everyday life for its 2.4 billion users worldwide. The Internet has revolutionized the way people interact and exercise their freedom of expression and information as well as related fundamental rights.
It has the view that all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of speech and expression and other fundamental human rights, and states have a responsibility to ensure:
That Internet access should be broadly available to all, and
That states may not unreasonably restrict an individual’s access to the Internet and there should be as little restriction as possible, for expression of ideas, opinions and flow of information over the internet.
A decade ago, Internet connectivity may have been considered a luxury, but today it has become a necessity. It’s been several years since France has made access to Internet a human right. Finland has gone a step further and mandated access to a minimum of 1 Mbps Internet connection a legal right to its population of five million. Information and communication technologies have spread across India over the last decade, with 965.52 million phone users and 164.81 million internet users which is the third-largest absolute number of users worldwide. It has made a great start by making some of the big cities WiFi enabled and making the right to internet access a legal right in India. According to a report of Internet and Mobile Association of India (IAMAI) and Kantar IMRB the number of internet users in India is now expected that will reach 500 million till June 2018, the number of internet users was 481 million in December 2017 and also an increase of 11.34% from December 2016.
The internet presence is reaching into every aspect of people’s lives in India like in the field of education, health, and agriculture. The internet revolution first made a substantial difference in the lives of citizens when peasants, farmers and landowners of Rajasthan raised their voices demanding the ability to access land records directly through internet. The system was inculcated in many other states. E-Governance in various departments presently has enabled many citizens across the country to use government services at the click of a button.
The idea of making access to internet a fundamental right is very appropriate because of the latest developments in control and censorship. More than in the recent past, there is a growing need of preserving and maintaining the very nature of the Internet. The success of the Internet is intertwined with the ‘openness’ of its architecture.
RIGHT TO INTERNET: GLOBAL PERSPECTIVE
After many years of debate and discussion in 2016 United Nations Human Rights Council released a resolution passed by United Nations, the UN has declared that “online freedom” is a human right”, and one that must be protected. 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 a declaration was issued which indicated the importance of applying comprehensive human rights based on the approach when providing and to expand access to internet and for the internet too will be open, accessible and will be nurtured.
There is almost universal agreement worldwide that the web has become a fundamental necessity of modern society. 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. Countries like Finland, Estonia Greece and Costa Rica have also made the basic Internet access a part of their citizen’s fundamental rights.
In Costa Rice, a 2010 Ruling by its Supreme Court said that technology has impacted the way humans communicate. It has become a basic tool to exercise democratic participation, education, freedom of expression, access to information and public services online and hence it includes fundamental right to access internet or World Wide Web.
In Estonia, the government argued that internet is essential for life in the 21st century and massive accessibility programmed was launched. Further countries like Finland, Greece, Spain, France all have moved a step ahead and has brought access to internet under the fundamental rights of its citizens.
Canada followed the suit last year, ensuring that every resident was entitled to Internet access at a minimum speed of 50 Mbps.
RIGHT TO INTERNET: INDIAN PERSPECTIVE
A right which is always defined as a power, privilege, demand, or a claim which is possessed by a certain person by virtue of law. The idea of internet as a right is not new. While there have been debates about considering the right to internet access a necessity given all the other problems that developing and least developed countries face; a celebrated author rightly pointed out that ‘it’s unrealistic to ask that everyone wait until hospitals are built in every corner of their respective countries before being able to access Internet that comes at a reasonable cost and functions at a reasonable speed’. Hence internet as a right, facilitates the inviolable right to freedom of speech and expression under Article 19 (1)(a) of Constitution of India. The hon’ble Supreme Court in Maneka Gandhi v. Union of India, held that the freedom of speech and expression has no geographical limitation and it carries along with it the right of a citizen to collect information and to share his thoughts with others not only in India but abroad as well. This was at the time when no one had ever thought internet will become a borderless phenomenon.
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. Thus the internet is an enabler of other fundamental rights and should be given more attention and vigilance. The UN Human Rights Commission has passed a non-binding resolution that effectively makes internet access a basic human right and any country denying it violates the human rights to its citizens. Unfortunately, India along with other countries like Indonesia, South Africa, Saudi Arabia, China and Russia opposed this stating that they are open to idea of internet access to all, but they want absolute control over it.
But recently in April 2017 a bench of Honorable Supreme Court in the case of ” Sabu Mathew George v. Union of India & Others”, declared right to access the internet as a human right the bench said that;
Right to Internet Access is an integral part of Fundamental Right of Expression, and every citizen has the right to be aware and the right to know and the feeling of being protected of expansive connectivity. Citizens have the right to access the Internet to extract data, wisdom and knowledge and their right could be infringed until and unless it becomes illegal. Calling the Internet a “virtual world” and a “world which is not visible in a way,” the Supreme Court observed that the fundamental right of expression includes “the right to be informed and the right to know and the feeling of protection of expansive connectivity” the Internet offers on the click of a button. The apex court has made a general prohibition on all online content related to pre-natal sex determination will infringe the fundamental right to know of a genuine information-seeker and held that the prohibition should kick in only if the content found online is violative of Section 22 (prohibition of advertisement relating to pre-natal determination of sex) under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (PCPNDT) Act of 1994. Also elaborated, if somebody intends to search for ‘medical tourism in India’, he is entitled to search as long as the content does not frustrate or defeat the restriction postulated under Section 22 of the Act.
Also, this year Kerala became the first state in the country to declare Internet access as a human right. Kerala declared access of Internet as a basic right for every citizen, just like water, food and education. Access to Internet is the most crucial element, because unless people have access to basic internet, the digitization and e-Governance would not spread. Govt. has announced plans to provide free basic Internet facility to 20 lakh citizens across the state, and plans to extend broadband connectivity to every household in the state. The project, named as K-Fon, has been announced, which will establish optical fiber cables across the state and would be laid parallel to Kerala State Electricity Board towers, all across the state. But Right to the internet needs way more attention as a fundamental right than this judgment.
RIGHT TO LIFE AND RIGHT TO INTERNET
Internet is becoming a necessity of modern society. It 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 information, 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 which is a fundamental right recognized under Art. 21 as right to know or information, 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, which if one is deprived of then a great injustice, will occur to that 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.
The Indian Judiciary expanded the scope of Article 21 i.e. right to life and personal liberty. After Maneka Gandhi the Judiciary has endeavored to put many incipient innovative rights in Article 21 which had become the source of many substantive rights and procedural safeguards to the people. The Supreme Court asserted that in order to treat right as Fundamental Right, it is not necessary that it should be expressly stated in the Constitution. Political, social and economic changes in the country entail the recognition of new rights.
In Munn v. Illinois, right to life is stated in the following sense:
By the term ‘life’, meant more than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed.
In Francis Coraile Mullin v. UT of Delhi, Bhagwati J held:
The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings. The magnitude and content of the components of this right would depend upon the extent of the economic development of the country, but it must include the right to basic necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self.
In P Rathinam v. Union of India, Supreme Court has defined life as:
“The right to live with human dignity it takes within its fold some of the fine graces of civilization which makes life worth living and that the expanded concept of life would mean the tradition, culture and heritage of the person concerned”.
Article 21 has been also interpreted along with international charters on Human Rights.
In PUCL v. Union of India, the court has implied the right of privacy from article 21 by interpreting it in conformity with Art.12 of the Universal Declaration on Human Rights and Art.17 of the International Convent on Civil and Political Rights, 1996. Both of these international documents provide for the right of privacy. Thus the Supreme Court by its creative interpretation of Article 21 in various cases imposed positive obligations upon the state to take steps for ensuring to the individual a better enjoyment of his life and dignity. However, pointed out that individual rights cannot be absolute in a welfare state. It has to be subservient to the rights of the public at large. Hence financial constraints of the state have also to be considered and recognized e.g. when demands for medical and health facilities arises in a welfare state.
In Chameli Singh v. State of Uttar Pradesh, the SC held;
“In any organized society, right to live as a human being is not insured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve the object. Right to live in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These rights are basic rights known to any civilized society…….”
Thus, the Supreme Court has introduced a qualitative concept into Art.21 whatever promotes quality of life falls within the parameters of Art.21. Political, social and economic changes occurring in the country entail the recognition of new rights and the law in its eternal youth grows to meet the demands of the society. Some of these recognized rights are:
Right to Livelihood- For some time the court does not recognize the right to livelihood. Later the court held that the right to life includes right to livelihood “because no person can live without the means of living, i.e. the means of livelihood”. Deprivation of livelihood would not only deprive the life of its effective content and meaningfulness but it would make life impossible to live.
Right to medical care- The Supreme Court recognized that the state cannot avoid its constitutional obligation to provide adequate medical aid to the people on account of financial constraints. It also held that provisions of health facilities cannot be unlimited and to be to the extent finance permit.Also in a medico-legal case (such as an accident) the doctors usually refuse to give immediate medical aid to the victim till legal formalities are completed. In some cases the injured die in want of medical aid pending the completion of legal formalities. The Supreme Court very specifically clarified that preservation of life is of paramount importance, once life is lost cannot be restored. It is the duty of doctor to preserve life whether the concerned person is a criminal or innocent person.
Right to Shelter- In Chameli Singh v. State of U.P. the court has observed, “Shelter for a human being is not mere protection of his life and limb. It is home where he/she has opportunity to grow physically, mentally, intellectually and spiritually. Right to shelter therefore includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civil amenities like roads, etc. thus right to shelter therefore means right to all the infrastructure necessary to enable them to live and develop as a human being. It also uphold the right of people in hill areas for a suitable approach road and held that right to life embraces not only physical existence of life but also the quality of life and for the residents of hilly areas, access to road is access to life itself.
Right to Privacy- The Constitution does not grant in specific and express terms any right to privacy as such. However such a right has been culled by Supreme Court from article 21 and several other provisions of the constitution read with DPSP.
In Kharak Singh v. State of UP the court observed that the right to personal liberty takes in not only a right to be free from restrictions placed on his movements, but also free from encroachments on his private life, also held that police surveillance of a person by domiciliary visits was held void.
In R. Rajagopal v. State of Tamil Nadu the Supreme Court has asserted that right to privacy become constitutional right and implicit in the right to life and liberty guaranteed to the citizens of this country by Art 21. It is a “right to be let alone”. A citizen has right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. The said right cannot be curtailed except according to procedure established by law. Right to privacy includes telephonic conversation; therefore telephone tapping amounts to its violation unless it is permitted under procedure established by law. A HIV positive person does not have right to privacy against doctor not to disclose his status. Nor does such a patient have absolute right to marry under Article 21. Right to healthy life justifies a breach of confidentiality in such cases.
Right to Unpolluted Environment- The Supreme Court held that hygienic environment is an integral facet of healthy life. Right to live with human dignity becomes illusory in the absence of humane and healthy environment.In Subhash Kumar v. Bihar, the Apex Court has held that enjoyment of pollution free environment is included in the right to life under article 21, “Right to life includes the right to enjoyment of pollution free water and air for full enjoyment of life. If anything endangers or impairs that quality of life in derogation of laws, a citizen has right to have recourse to Art. 32 of the Constitution for removing the pollution of water or air which may be detrimental for the quality of life”
Preservation and protection of nature’s gift also been conceded under Art. 21. The right encompasses wide variety of many other rights like protection of wildlife, forest lakes, flora-fauna, unpolluted air, protection from noise, air and water pollution, maintenance of ecological balance and sustainable development.
Right to Education- In Unni Krishnan, J.P. v. State of A.P.the court recognized a fundamental right to education in the right to life under Art. 21. It was held that every child/citizen has a right to free education until he completes the age of fourteen years. Thereafter his right to education is subject to the limits of economic capacity or development of the state.
Right to Know- Holding that the right to life has reached new dimensions and urgency the Supreme Court in R.P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd., observed that if democracy had to function effectively, people must have the right to know and to obtain the conduct of affairs of the State. In Essar Oil Ltd. v. Halar Utkarsh Samiti, the Supreme Court said that there was a strong link between Art.21 and Right to know, particularly where “secret government decisions may affect health, life and livelihood.
Therefore, it is evident from the above cases that Article 21 can be extended to those limbs and faculties by which life is enjoyed and lead to quality life it includes right to live with human dignity and all that goes along with it. With the ever-changing nature of society, human rights face a need for continuous evolution in order to address new challenges. Right to life basically includes:
Civil and Political Rights – those rights which are related to the protection of the right to life and personal liberty.
Economic, Social and Cultural Rights – those related to the guarantee of atleast minimum necessities of the life to human beings. But political, social and economic changes in the country entail the recognition of new rights and the magnitude and content of the components of this right would depend upon the extent of the economic development of the country.
In the current techno world, everything and anything is done with the help of internet from basic school project to research for Ph.D thesis. Internet has become an integral part of everyone’s life. Unlike the earlier economic indicators – Food, Shelter and Clothing, many countries have included access to internet a basic indicator for Human Development Index. A minute without internet is just not practically but also mentally impossible for the current generation. In such a situation, Internet should be considered a Human Right, a right which cannot be dispensed with or which defines basic dignified lifestyle.
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 and for the people, it is very clear that every citizen must be given chance to participate in the democratic process and in order to enable him to exercise his rights intelligently of making a choice, free & general discussion of public matters is absolutely essential.
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
“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, it was held in the case of Maneka Gandhi v. UOI”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, 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 has become a constitutional right as this being an aspect of the right to free speech and expression which also includes the right to exchange information.
Also, in the case of PUCL v. UOI, 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, 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.
RIGHT TO EQUALITY AND RIGHT TO INTERNET
The concept of equality of law finds place in all written constitutions. All citizens irrespective of birth, religion, sex, caste or race are equal before the law; that is to say, therefore 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.
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 its importance would not be taken much seriously it would become subject to election campaigns and government bureaucracy. 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 v. Cricket Association of Bengal, “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.”
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 guaranteeing 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 practices 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. 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 a part of this new virtual culture, but they are also negatively impacting economic opportunities.