Right to access Internet: An end to oppressive Internet shutdowns?

[This post has been authored by Mohd Rameez Raza (Faculty of Law, Integral University, Lucknow) and Raj Shekhar (NUSRL, Ranchi).]

The Internet is one of the most powerful instruments of the 21st century for increasing transparency in day to day working, access to information, and most important facilitating active citizen participation in building strong democratic societies. Relying on the same belief, the Kerala High Court, in its monumental, decision has held ‘Right to Internet Access’ as a fundamental right. Thus, making the right to have access to Internet part of ‘Right to Education’ as well as ‘Right to Privacy’ under Article 21 of the Constitution of India.

While the Indian Government; since the past few years have been treating internet as just another exploitable resource, activists and academicians across the country have advocated for years that internet access is better viewed as a fundamental utility, essential for free expression and thus ultimately as a tool to a sustain healthy democracy. Amidst the agony of the 150 days, the people of Kashmir have been through a lot. The long-debated issue of Right to Access Internet has been in question ever since the onset of 150 days long, still ongoing, and the longest ever recorded internet shut down in the Union Territory of Jammu and Kashmir. After leaving people’s lives, jobs, and the economy in tattered ruins, finally, the people of Kashmir saw a beacon of light in the form of the Supreme Court’s ruling in the case of Ghulam Nabi Azad and Anr. v. Union of India and Anr. Justice N. V. Ramana, while authoring the judgement of this historic case cited the lines from the classic book A Tale of Two Cities3 to perfectly describe the present scenario of Kashmir:

“It was the best of times, it was the worst of times,

it was the age of wisdom; it was the age of foolishness,

it was the epoch of belief, it was the epoch of incredulity,

it was the season of Light, it was the season of darkness,

it was the spring of hope, it was the winter of despair,

we had everything before us, we had nothing before us,

we were all going direct to Heaven, we were all going direct the other way –

in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”

When we talk about the Right to Access Internet, we find that internet access is integral to an individual’s Right to Freedom of Speech and Expression. There is not a slightest doubt that in today’s world, the internet stands as the most utilized and accessible medium for the exchange of information, even more than print media. The revolution within the cyberspace has been phenomenal in the past decade, wherein the limitation of storage space and accessibility of print medium has been remedied by the support of Internet run services. “Law and technology seldom mix like oil and water.” said the Honorable Supreme Court in its judgment. Law has been criticized for not keeping pace with the advancement of technology. With this as the foundation, we need to make sure that the law should imbibe the technological development and accordingly change its rules so as to support the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable. Thus, the importance of Internet cannot be undermined and nor the fact that day and night, we are encapsulated within the cyberspace, and thus, our basic needs are all dependent on internet.

It is critical at this point to distinguish between the internet as a tool and the freedom of expression and its propagation through internet. There is no dispute that freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible. The wider range of circulation of information or its greater impact cannot restrict the content of the right, nor can it justify its denial.  With the advent of the digital era internet has gained contemporary relevance and is one of the major means of information broadcasting. Hence, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a), and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Indian Constitution.

With this as the backdrop, we also need to understand that the internet is a very important tool for trade and commerce, especially with the advent of e-commerce. The globalization of the Indian economy and the rapid advances in information and technology has opened up vast business avenues and transformed India as a global IT hub. There are certain trades that are completely dependent on the internet and cannot sustain in its absence. This makes internet an integral part of trade through internet and also fosters consumerism and availability of choice. Hence, the freedom of trade and commerce through the medium of the internet is protected under Article 19(1)(g) of the Indian constitution, and just like other rights is subject to the restrictions provided by the Indian Constitution. Internet access as a need is itself a moral human right that requires that everyone has unmonitored and uncensored access to this global medium, which should be publicly provided free of charge for those unable to afford it, lest be suspended for propaganda. However, just providing universal access is not enough, what needs to be maintained is its freedom from authoritarianism and tyranny of officials. The Right to Access Internet requires states to prevent the proliferation of technology that allows for the censorship and surveillance of online activities. States have moral obligations to regulate the business activities of domestic information communication technology companies that sell such technology. It is pertinent to note that rules and regulations require reforms to cope up with the advancement of technology and the importance of modem technology in day to day life’ and it should be left on the people of the country to decide. Thus, the Right to Access Internet is fundamental, and it holds a significant bearing on promoting innovation and open access to knowledge and civil liberties for citizens in the digital world and especially in a democracy like India.