Right to Internet: What exactly?
How should this ambiguous concept be defined? Or, will defining it cause it to be chained by undesired boundaries? But how do we bring something into effect without knowing its exact nature? Out of the numerous questions that bother our minds while discussing about the right to internet, these are merely a few.
Being a fairly modern development, we do not have any such provision in our Constitution, neither do we have any legislation which renders access to internet as a right. Enforcing access to internet as a fundamental right demands various clarifications. For example, does banning certain websites, in the public’s interest, circumvent this concept? If yes, then will banning its access altogether in the times of unrest be justified too? This right is one which severely requires an exhaustive discourse by the concerned authorities. There is another great issue which precedes the rendering of access to internet into a right. That is, whether a facility or a service, which is so recent and oftentimes damaging in a multiplicity of ways, be elevated to the status of a right.
Hurdles on the Way
The voice of the ones who advocate access of internet becoming a fundamental right is loud but gibberish. Internet is greatly useful, there is no doubt on that whatsoever. Its utilities are of such greatness that it remains hidden from absolutely no one and, hence, does not ask for explicit listing. But, this simply cannot overshadow the fact that immense trouble can be brought upon by its misuse. The first word that jumps to light when misuse of internet is talked about is 'hacking'. This practice, when becomes unethical, poses a huge threat to the security of absolutely everyone. Breach of sensitive data of valuable institutions, organizations and the government would be catastrophic. Even on a relatively lower level, infiltration into the privacy of a normal individual is extremely alarming. It can lead to uncountable hazards ranging from mere pranks to harassment, assaults and possibly, death.
If this scenario seems a bit too far-fetched, firstly, be assured that with the ongoing developments it is not, and secondly, there are other facets to internet misuse. One of them is the dissemination of disinformation with a view of instigating violence or spreading hate. Also, its non-deliberate counterpart, misinformation, is capable of causing disturbances to the public order. Spreading of hate is far more easier with the use of internet than how it used to be before the popularization of the world wide web. Even if this disastrous reality does not satiate the argument, there is another issue waiting to be deliberated upon. Spread of graphic content, gore, and grotesque material over the internet is one hideous practice going on. This poses an enormous risk on an individual's mental well being.
Taking into consideration all the aforementioned aspects, it becomes a tough task to call the use of internet a fundamental right. Now, one might argue that dubious websites and content shall be banned from public access. This is possible to only a limited extent, as the hosts find a way to penetrate this ban by launching their sites under a new, unsuspicious, URL. Also the users who frequent these sites tend to employ tricks, like using VPNs, proxies and other services, to get to the content they desire. One can propose to criminalize dissemination of such material and circulation of misleading information. But again, this is a tough job to do. Tracing the owners of these websites is painstakingly tough, one cannot do anything to these goons as they lie beyond the reach of the highest administrations. Oftentimes, they are completely off the grid.
Why Right to Internet?
Right to internet is in high demand as it is seen to be a platform which gives voice to the unheard. It helps many to bring forward their cause and pulls many out of various troubles they are facing in their lives. It is the means of a livelihood to many. Furthermore, it gives shelter and transport to healthy criticism of the government and ensures accountability. Although, it is not unseen that few political organizations, with shady objectives, often make use of this platform to create nuisance and disrupt the usual functioning of the governmental institutions. Moreover, unauthorized sale of analytical data has often led to meddling in electoral processes.
Many a times lives have been saved by tracking the social media posts of a victim. In times of unrest, when telephone connectivity is hampered, internet plays a vital part in transmission of information. But, at the same time, it confers the anti-social elements with a plethora of opportunities. Such people abuse this platform and monger fear amongst the public. They spread fake facts and push forward their diabolic propaganda. Although it is hard to put under check, this practice can still be subverted by denying suspected areas from accessing internet. This would not be possible if there is a fundamental right to internet.
Under the Legal Sphere
There has not been much discussion about internet becoming a fundamental right, except around the issue of Kashmir. Reducing internet speeds below 4G caused the concerned public to raise their voice against this inconvenience. The people did not see these restrictions as reasonable, and claimed to be victims muzzled up by the government, which in fact was not the expected outcome. Such a policy decision was taken for the good of these very people, including the decision of the complete ban, but they had a tough time accepting it. Finally, in the judgement of the civil writ petitions filed by Gulam Nabi Azad and Anuradha Bhasin against Union of India, this issue was taken into consideration. This judgement is the only one which truly provides some clarity on the matter of right to internet.
However, this issue was not explicitly argued by either parties. So, in paragraph 28 Justice N.V. Ramana said, “None of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same.” Nevertheless, there is a fairly elaborate section ‘F’ in the judgement talking about the internet shutdown. Under this very heading, the court clearly held that, “…that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.” This is a major development in the scenario. The court did not expressly declare access to internet as a fundamental right, rather it solved the problem in a very diligent way. It granted exercise of provisions under Article 19, specifically clause (1)(a) and (1)(g), via the medium of internet as constitutionally protected.
The procedures pertaining to internet shutdown were carefully interpreted and had its nuances laid down. This ruling paid great attention to ensuring that any halt of internet services shall be completely justified and only employed when it is the last resort. Internet shutdown was allowed only in case of 'public emergency' or 'in the interests of public safety'. This aspect was reiterated from the original judgment of Hukam Chand Shyam Lal v. Union of India, (1976) 2 SCC 128 regarding ‘interception of messages by the government’, wherein section 5 of the Telegraph Act was construed as, “[...]Firstly, the occurrence of a “public emergency” is the sine qua non for the exercise of power under this section [...] the phrase ‘occurrence of any public emergency’ is connected with and is immediately followed by the phrase “or in the interests of the public safety”. These unavoidable circumstances, as they may be called, were explicitly listed down to aid the definition of this slightly vague term.
Present Scenario
After this ruling, which came on 10th January, 2020, the blurry picture began to clarify. It was now evident that access to internet was a right but not a fundamental one.
This right, however, provided a cradle for the fundamental rights under article 19. The havoc in Kashmir still continues but the Supreme Court now has begun to take effective steps. The present condition of access to internet being a legal right is very acceptable. As we know, if this right was to come under the purview of article 19 or article 21 and was declared fundamental, there would have been loopholes aplenty for the miscreants to exploit and lead the nation towards total chaos.
On the other hand, ensuring a well-structured framework for the enforcement of this right shall be done. Internet, in the present times, has become a bit more than just a necessity; we shall be willing to go lengths to secure this right in the most efficient way possible.
-Shiwang