INTERNET SHUTDOWNS AND ASCENSION OF THE INTERNET AS A RIGHT: AN OVERVIEW
– Taniya Ghangas & Abhinav Baranwal
The most beautiful aspect of our constitution is its everlasting ideas and values, its adopting nature to changing times. What makes it flexible is evolution of its fundamental rights, which widens their scope according to the emerging social and economic conditions. From embracing right to education to right to privacy, it shows how it values the liberty and dignity of its citizens. In the present world, with changing time people are growing closer to technological aspects and the base of almost every technology is the internet. It is one of the most revolutionary and innovative creations of mankind. In this article, authors have analysed the right to internet access as a human right by touching national along with international developments in this area. Authors, with the help of different case laws and legislations, have argued that how a slew of applications of the internet made it to have existence in Indian Constitutional Jurisprudence. By taking instances of the imposition of internet shutdown, it is being examined and suggested more transparency and accountability by the government. References of some researches have also given to show the abominable consequences of internet shutdowns. Authors have critically considerate the decision of the UN Human Rights Council by putting it against the views of Vinton Cerf and further giving personal views on the matter.
On 5th August 2019, the constitutional order was issued by the Indian Government , setting aside the 1954 Presidential order on Jammu and Kashmir, scrapping the distinctive standing of Jammu and Kashmir bestowed by Article 370 and legalized application of all rules and regulations of the Indian Constitution to the state of Jammu and Kashmir. Simultaneously, the District Magistrates imposed Section 144 of Cr.P.C., in the view of maintaining peace and quietude within the state.
But it was on 4th August, when all mobile networks, landline services, internet connectivity was all terminated sin die in the valley. This was followed by a number of petitions challenging the order, directions, notifications, and circulars issued by the Central Government which sought for the restoration of the steady and stable environment, especially a revival of all the modes of communication, including the internet throughout Jammu and Kashmir.
Contentions were raised over the non-compliance of government order with needed suspension rules in regard to the curtailment of internet services which are deemed to be prerequisites for the media and press freedom. Learned Counsels submitted arguments underlining the worthiness of Internet access concerning for to freedom of speech, right to trade of individuals along with the comparative analysis of the lawful exercise of their fundamental rights.
Nonetheless, as a consequence of curbing internet access in the valley, every operation came to a halt. In Anurdha Bhasin & Ors. v. UOI & Ors. case, every contention by counsels emphasized on the restrictions on the fundamental rights bracket with no access to internet services. It was argued that how the people of Jammu and Kashmir were thrust into the vacuum without any contact facility and all had gone into oblivion.
It is in this case, the Supreme Court acknowledged the internet trade as a constitutional right and ruled that “the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)((a) and Article 19(1)(g) and restriction upon such fundamental rights should be in consonance with the mandate under Article 19(2) and (6) of the Indian Constitution, inclusive of the test of proportionality”.
But the point is that acceptance of internet access as a means of trade or convenience for bringing a career into practice is the only identification of the internet has so far enumerated by the Supreme Court in the form of fundamental right. Through understanding, internet access according to Article 19(1)(a), the spectrum of gravity of internet access is somehow limited as being the fundamental right. Over the past year, the right to internet access has been repeatedly infringed by the state whether by posing sanctions over comments on the internet or by detaining citizens for digital offenses. The time has come to give actual recognition to the right to access the internet to provide it with legal protection.
Right to Internet vis-à-vis Fundamental Rights
With revolutionary advancements in the technological era, freedoms of speech, expression, communication, and information have become core elements of our life in the 21st century and all this is possible with proper connectivity within human society. In the present ongoing shutdown followed by COVID 19 pandemic, it is because of e-connectivity to everything that people can carry out their day to day life schedules.
From seeking justice to making a daily living, internet access has made it easier to endure this unprecedented situation. Evidently, India is emerging as a global IT hub with the advancement of globalization in trade and commerce which make the right to have the Internet more certain. Most of the sectors have moved online, such as education, banking, culture, governance, healthcare, etc, to enhance the development of the country.
With mini offices created at home, most of the people need not suffer due to halt created during the lockdown in their businesses and can carry on with their business practices. Online sales of foodstuffs, essential items, household products, medications, etc. have enabled buyers along with sellers to sustain their living. As a result of the burgeoning demand of the internet, internet provider companies are emerging as a great source of calming down the nation during this fight against COVID 19 by developing new modes of technologies that can help in handing over proper access to connectivity.
It is the fundamental facility that internet access offers in a form of economic survival. The availability of the internet ensures a constant source of income, hence one of the basic features of our Constitution of Economic justice provided in the Preamble has been safeguarded with online connectivity. It also promotes the right to trade which has been recognized by the Supreme Court under Article 19(1)(a).
The availability of e-connectivity has also contributed to ensuring justice for the citizens. In the crucial time of the pandemic, it is easily noticeable how important internet connectivity is. During the midst of lockdown, when almost everything was suspended, our judicial system opted for the online justice system through the option of video conferencing option to settle the disputes that occurred and to preserve peace in the society. Even the constitutional bench of Jammu and Kashmir High Court issued a ruling on 3rd July 2020, emphasizing the importance of the availability of e-connectivity to the courts as a matter of ensuring access to justice for all citizens and ought not to be in any way hindered.
Not just justice, new technology facilitates the better delivery of legal aid to its citizens. Ease of access to legal services and day to day operations of the judicial system warranted judicial accountability and transparency in India. Various legal assistance databases like Livelaw, Manupatra, etc. help to access information about existing ongoing judicial services and programs. Internet access has made it possible to promote justice in all circumstances, thus, fulfilling the provision of directive principle of state referred to in Article 39-A that empowers the state to ensure the promotion of justice. This also satisfies the fundamental characteristic of advancing justice to all specified in the Indian Constitution Preamble.
Needless to say, in today’s world, the Internet holds a great stance in fostering the exchange of information across the globe whether it be of political or some other sort. A wide range of circulation of information is possible on a single platform. In the present modern world, internet technology has its influence over all aspects of the culture of society. Internet providers make streaming news easily attainable. The Fundamental right to freedom of speech and expression gives its people the right to disseminate information as widely as possible without any restriction of its content unless it is protected by exceptions under Article 19(2).
Furthermore, freedom of the print media is also protected by Article 19(1)(a) which can be secured by an access to the internet. Within a word, the internet facility serves as an enabler of the provisions of free speech and expression.
Furthermore, The Internet is an instrument, having the potential to carry out the impeded goals of the right to free education maintained in compliance with Article 21A of the Constitution of India. Since education is the beholder of a tool for self-development, the government ought to ensure the bona fide access to the internet. Kerala High Court in Faheema Shirin v. State of Kerala judgement, envisaged right to access to the internet as a constitutional right concerning the enabler of right to privacy and the right to education, recognising it a part of Article 21.
The government itself underlined the noteworthiness of Internet connectivity by implementing numerous schemes and initiatives for citizens that allow internet services to be within reach of all people. For instance, Bharat Net is a telecommunications infrastructure provider launched by the NDA government, replacing with the status of National Optical Fibre Network, which ensures the feasible connectivity in the lives of rural India. Another program is PMGDISHA in which the government took the initiative to digitally literate people across the country. On top of that, there are nine pillars in the Flagship Digital India Program and six of them are interconnected with the secure internet connection.
The Plethora of services is being assisted by internet availability to facilitate democracy. The Instrumental value of internet access tends to promote and uphold democratic principles in the society in which the result gives rise to internet access as a derived right whose significance laid out from democracy and other fundamental rights.
For instance, education is an indispensable tool for exercise or promotion of other fundamental rights which are particularly vital for living, so that we can see right to education (Article 21A) as derived from the right to life (Article 21). In the landmark judgment of Unni Krishanan v. State of Andhra Pradesh , the right to education was accepted as a fundamental right with a view taken into consideration that it facilitates in realizing the fundamental rights already guaranteed to citizens under Article 21 and 19.
The right to internet access is the enabler of different legal rights and directive principles of the state. It brings about “equality, secularism, fraternity, freedom, and opportunity, as envisaged in the Preamble of the constitution”.
It is resource-intensive, yet critical tool for attaining the fundamental human rights of people living in the modern era. Given its enabling impact, the authors are of the view that the internet ought to be regarded as a separate fundamental right and that it also possesses the dimension of necessity to become part of the fundamental framework of the Indian Constitution.
The Aftermath of internet shutdown
In today’s world, the internet plays a major role in directing the actions of an individual to sustain in the modern society. Limitations on its access would potentially have a range of implications, discussed below:
According to estimates from the Center for Technology Innovation at Brookings , “India lost $968 million by 2016, which is 5.2% of its GDP due to internet shutdown which rose to a whopping $1.3 billion last year.” The reason that triggered the most is that such costs are not borne by the government, but by people and private business enterprises. India’s internet shutdown in Kashmir, which is the longest in a democracy, resulted in the standstill of its local industries.
According to the Kashmir Chamber of Commerce and Industry internet shutdown pulled 50,000 employees into unemployment and exports dropped by 62%. E-commerce platforms have severely suffered, in result this limits the freedom of trade, commerce and intercourse enshrined in Article 301 of the Indian Constitution, these shutdowns clearly come into conflict with the judgement of the Supreme Court in State of Madras v N.K. Mudaliar .
When a country like India seeks to become a $5 trillion economy and needs to anchor the development of its information and communication sector, Internet shutdowns send investors and customers all the wrong signals. As reported by the Icrier study, today the Internet is a key engine of entrepreneurship among the young. Furthermore, the Brookings report cautioned of the rising costs of frequent internet shutdowns in the future as weakening spot of global economic development.
Impact on education
In this 21st century age, where the internet has been used to disseminate information at the world level, any intervention in its access has broad implications, leading to limit the knowledge and learning opportunities for students. It also restricts the learning paths levelled by platforms such as Coursera or edX. For instance, many students of Jammu & Kashmir did not avail themselves of quality education, that restricts hit the essence of the judgment given in Ashok Kumar Thakur v UOI along with the provisions of Article 21A of our constitution. Schools and colleges were closed during the period of conflict and the internet could have been a great way to learn, but internet shutdown closed that opportunity too.
Threat to personal security and liberty
Lack of internet can be a threat to personal security, it is a highly disproportionate and sometimes needless and arbitrary measure which has enormous consequences for people on the ground. Shutting down a line of contact could lead to individuals being cut off from emergency services. The Indian Supreme court also held that internet shutdown affects individual liberty, with its effects on various fundamental rights of our country and held that “the right to life and personal liberty is the most precious right of human beings in civilized societies governed by the rule of law.”
The internet has become essential and indispensable for our everyday lives, so profoundly interwoven with social, cultural, and economic processes that refusing access to it has significant implications for life, safety and, well-being.
Various media reports, and research have delved into the way that how internet shutdown has adversely affected students, media houses, business enterprises, leading to communication blackouts, and consequently psychological distress .
Legal provisions governing Internet shutdown
The first internet shutdown was in 2012 in the Kashmir valley to restrict the flow of hate messages within the nation. Since then, India has imposed 406 internet shutdowns in various parts of the country and the recent one imposed for 213 days in Jammu & Kashmir is the longest in any democracy. Despite this increasing figure, the definite law governing internet shutdowns was framed only two years back.
Before 2017, section 144 of the Cr.P.C., 1973 enforced internet shutdowns which authorizes the “District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government to issue orders in urgent cases of nuisance or apprehended danger.”
“Generalia Specialibus Non-Derogant” is an established principle in jurisprudence which means that where there are two entries, one in a general character and other in a specific, the former must be read as excluding the latter. This principle was upheld by the Supreme Court in Waverly Jute Mills Co. Ltd. v Raymon & Co. (India) (P) Ltd. In the context of the CrPC, the Supreme Court in State (Union of India) v Ram Saran held, that where a special procedure is prescribed by a special law, that the special law must prevail over the provisions of this CrPC and the same is also specified in Section 81 of IT Act.
The use of section 144 of CrPC for imposing internet shutdown was challenged in the Gujarat High Court in Gaurav Sureshbhai Vyas v State of Gujarat , according to which the right to impede the transmission of data is conferred by Section 69A of the IT Act, hence the State Government had no authority to use Section 144 of the CrPC to restrict the internet use, but the High Court upheld the power of the magistrate to issue such order. Unlike section 144 of CrPC, the IT Act involves plenty of checks and balances for imposing internet shutdown which ensures that government’s use of this power could neither be arbitrary nor contrary to the mandate of our constitution and ought to be used only when there are “urgent cases of nuisance and apprehended danger”.
In response to the criticism of internet shutdowns imposed under CrPC, Ministry of Communication notified new rules for the internet suspension, these rules are known as “Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017” , released pursuant to section 7 of the Indian Telegraph Act, 1885. These rules provide some stringent checks on internet suspension, this regulation makes home affairs ministry secretary (at the center level) and the State Government Secretary in-charge of the Home Department (at the state level), a competent authority to suspend the telecommunication services.
The rules specify that the order signed by the competent authority must contain reasons for that direction and that a copy of the order ought to be submitted to the review committee by next working day. Within five working days, the review committee must meet to report its findings whether it is made on the “occurrence of any public emergency, or in the interests of the public safety.” Since the process lacked transparency, this new rule is a better alternative to section 144 of CrPC, as it puts check on the unimpeded power of government under review.
However, the number of instances in Jammu & Kashmir indicate that this law is arbitrary because of inadequate oversight and safeguard. The rule should be invoked in cases of public emergency and security cases, but it was invoked for a variety of other purposes such as conflict, militancy, collective rebellion, communal uprising, or protest.
Provision for internet access at international level
Over the past three decades, the global use of the internet has been growing exponentially in several ways. Notwithstanding this, billions of people also live without any internet connection, including many people in third world countries and several nations seeking to restrict the flow of internet data, as of 2016 a total of 54.9% of the world’s population does not have internet access. In December 2003, world leaders at World Summit on Information Society sowed the seeds of making internet connectivity, the next human right and reaffirming the role of the Information Society in upholding and consolidating human rights. The WSIS declaration states that:
“We reaffirm, as outlined in Article 19 of the Universal Declaration of Human Rights, that everyone has the right to freedom of opinion and expression; that this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
In 2010, Globescan conducted a poll on 27,973 people, finding that “4 in 5 internet users view the internet as a fundamental right.” In 2011, the United Nations Special Rapporteur submitted a report to the UN Human Rights Council stating that the internet acts as a catalyst for the enjoyment of human rights. The report made a total of 88 recommendations on the promotion and protection of online expression. Some of its salient points were:
This special rapporteur recommends state ensure internet access is made all time, even at times of emergencies or political unrest.
This rapporteur was drafted with foresight to consider potential developments in technology relevant to freedom of speech.
By acting as a catalyst for freedom of expression, the internet also facilitates other human rights.
The Internet has become a key in exercising freedom of expression as enshrined in Article 19 of the UN human rights commission.
This rapporteur did not declare the internet as a ‘human right’, but the use of terms such as ‘a key means’ or ‘a catalyst’ indicates that the internet is gradually becoming a very significant aspect of mankind and could become the human right of the 21st century.
Eventually, in 2016, pursuant to article 19 of the Universal Declaration of Human Rights, the United Nations Human Rights Commission released a non-binding resolution recognizing the freedom to access the internet as a human right and to reprimand countries that interfere with its access. The resolution reaffirmed that “the same rights people have offline must also be protected online.”
Article 19 is considered as a soft law as it only recommends its compliance, not binding however this resolution does have some weighting for countries that are actively trying to combat online corruption and to restore the relations with their people.
This declaration is also significant because open networking is a key for attaining ‘agenda 2030’ Sustainable Development Goals, focusing economic and social development, such as goals 8-11, along with focusing peace and stability goals, such as goals 16-17, are few where the internet can have a major effect on progress and service delivery. Nevertheless, this resolution faced stiff opposition from countries such as Russia, China, India, Saudi Arabia and currently there are only 32 countries deemed to be resilient to internet shutdowns.
The main criticism for internet connectivity not to constitute as a human right, comes from its father, Vinton Cerf, who claims that, “Technology is an enabler of rights, not a right itself.” Cerf argues that the internet plays an important role in civil and political participation of people, and that it should be a political right, but its access cannot be granted as a human right, however an NGO called AHUMANRIGHT asserts that Cerf is mistaken as his argument is based on the narrow definition of human rights.
According to 2016 statistics, only 46.1% of the world’s population has access to the internet and declaring anything as a human right that is only open to a minuscule population may be a decision made in a rush, explaining the need of the hour La Rue emphasizes that, “each state should develop a concrete and effective policy to make the Internet widely available, accessible, and affordable to all segments of the population.”
In this article, authors try to put the essence of internet in clear terms in a way that supports internet access as a fundamental right. Discussing it from the Indian context to the international level, provide us with the internet’s scope and need for its legal protection. Being the necessary tool for democratic reforms, the Internet has significantly changed our lives, ranging from purchasing tickets online to performing bank transfers over the phone. The Internet provides us with the medium to share information freely, efficiently and internationally. The time is coming soon when internet access becomes crucial to freedom of speech for almost every form of mass exercise.
Instead of undermining the very meaning and character of the internet, we need the rights and responsibilities for internet users, internet providers to add some order to this digital world. It deserves separate review and defense. In case of conflict of interest with different rights and laws, we need seek a fine balance between them, rather by applying doctrine of harmonious balance. In a nutshell, the essay is attempting to expose the existence of an inclusive society on the internet.