This article is submitted by:
- Deokinandan Sharma
Bill Gates once said, ‘The internet is becoming the town square for the global village tomorrow.’ In the 21st century, the internet has become a powerful tool to access information and facilitate active citizen participation which is embedded in the very foundation of every democratic society. With the rise of globalization and expansion of internet use, it has become the very staple in contemporary society. From around 260 million users in the year 2015 to around 565 million users in the year 2020, the demand for access to the Internet has just risen. With this radical change and advent of digital revolution, can the internet be regarded as a perk enjoyed only by the rich and wealthy? It is a platform that enables the realization of individual rights that are guaranteed under the Constitution. The Indian Constitution as described by Granville Austin encompasses three strands which are stated as follows: i) building a strong state, ii) establishing the institutions and spirit of democracy and iii) fostering a social revolution.[1] It provides the framework, defines the powers and responsibilities of the state. It can also be termed as the ‘Fundamental Law’ of the country. Such rights have a degree of protection from encroachment. In January 2020, the Supreme Court of India declared the access to the internet as a fundamental right within the ambit of the Article 19(1)(a)[2] which is the right to freedom of expression and speech. This paper shall navigate whether this radical change from being a mere source of enjoyment to an elevated degree of a fundamental right in the Constitution was necessary and justified.
What are rights?
To investigate whether the passing of the internet can be justified as a fundamental right under the Constitution of India, one needs to understand the definition of the word ‘right’. Wesley Hohfeld, an American jurist construed rights as a subjective concept that entails the following general structure: i) a privilege, ii) a certain power, iii) an immunity and iv) a claim.[3] Alan Gewirth posits a right theory which he called it the Principle of Generic Consistency (PGC) which states that ‘Act in accord with the generic rights of your recipients as well as of yourself.’ Having a right means that one can oblige others to protect or facilitate its fulfillment. Gewirth says that rights have correlative duties which includes non-interference in its exercise and provision of help for its realizations. It also highlights a distinction between negative and positive rights. Negative rights are those that are intrinsic and the Constitution provides a protection for the same. Positive rights are those that enable the holder to claim a good or service from the State or another.[4] Another distinction that arises is between basic and derived rights. Basic rights are those which are defined and guaranteed under the Constitution. Derived rights are those that possess instrumental value for the fulfillment of the basic right from which it is derived and hence should have the same normative status as the basic right to that extent.
Democratic Governance
Deliberative democracy, also called discursive democracy is where decision making is centrally based on consensus and majoritarian approach. It affirms the need to justify decisions and laws imposed. The most important characteristic is the reason giving requirement. Amarya Sen stated that democracy is a universal rule to be adopted by all. Alan Gewirth stated four types of justifications of social rules:[5]
- Optional-procedural justification which states that some activities are extensions of freedom and participation is optional. But if an agent chooses to get involved he consents to the rules of such institution.
- Static justification is based on the assumption that everyone is originally equal and basic in non-subtractive goods. These goods are those which if deprived of would severely reduce the capacity of agents to act.
- Dynamic justification is based on that fact no one is equal initially and some action must be taken to bridge the gaps to restore equality.
- Necessary procedural justification where not only is its imposition required but a sense of constitution must be embedded in it.
Evolution of Article 19(1)
The very idea with which the fathers of the Constitution added the clause –freedom of speech and expression as the first guaranteed right, they had in mind that the voice of the nation was of utmost importance and they had to be heard. They wanted an active participation in this newly formed democracy and open discussion so that healthy and sound decisions were made by the political bodies thus resulting in the development of the nation.
The argument of democracy has been the primary justification used by the judiciary in free speech cases and examine its consequences. Free speech is either based on instrumental theories which are aimed towards promoting other values of democracy or intrinsic theories where speech is valued in itself.[6] In the case of Romesh Thapar v. State of Madras (1950)[7], it was stated that freedom of speech and press lay at the foundation of all democratic societies. Free speech does not only promote but it is one of the defining ingredients of it. In the case of S Rangarajan v. P Jagjivan Ram(1989)[8], the Court stated that democracy is enabled via open discussion. It demands an active and intelligent participation by its citizens which is the basic feature and constitutes the rational process of democracy. Article 19(1)(a) can thus be understood as trying to create a space of deliberative democracy. In the case of, Indian Express v UOI (1985)[9] the court laid emphasis on the fact that freedom of print media gave it the role of public educator who made the whole country aware of the developing world. One of the main purposes of the press being the advancement of public interest by publishing facts and opinions without which a democratic Government cannot make responsible judgments. Therefore, we can conclude that the court from time to time has evolved with society, by reworking this clause but also keeping in mind the reasonable restrictions laid out in Art 19(2).
Right to internet
In the case of Life Insurance Corporation v. Manubhai D Shah (1992)[10], the Supreme Court stated that a constitutional provision is ‘never static, it is ever evolving and ever changing, and therefore does not admit of a narrow, pedantic or syllogistic approach.’ This illustrates that the Constitution should be contemporaneous with radical changes in the society. Based on this and the democracy justification theory, one can affirm that the right to the internet can be termed as a positive derived right. It carries the potential to facilitate dynamic communication and push democratic changes forward. Lawrence Liang in the Oxford handbook stated, ‘A spatial understanding of free speech jurisprudence that the ecology of speech includes recognition and access to infrastructure of communication within the logic of the speaking subject and from the perspective of spectatorial rights.’[11]
If right to democracy is a human right, then the instrumental value of Internet access can be seen as a derived right that derives itself from the normativity of democracy.
The access internet can be viewed as a mixture of both negative and positive rights. It could be negative since it cannot arbitrarily be taken away without reasonable justifications. However, some people cannot bear the cost of the Internet, in which case financial support for the same must be provided. In a globalization world, there is a positive correlation between internet penetration and the degree of a country’s democratization.[12]
The Right to Internet acts as a conduit by paving individuals to realize their Fundamental Rights as stated below:
- Right to freedom of expression and speech – Article 19(1)(a)
- The Internet provides a larger platform for the exchange of ideas and dynamic communication. As we have seen it furthers the democratic changes by aiding an expedient connection all over the globe.
- In the case of Sabu Mathew George v. Union of India (2016)[13], it was stated that every Indian citizen has the ‘right to be informed and the right to know and the feeling of protection of expansive connectivity.’
- It was also stated in the judgment of Anuradha Bhasin v Union of India (2020):
‘A popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern the ignorance and a people who mean to be their own Governors must arm themselves with the power which knowledge gives.’[14]
- Right to practice any profession, or to carry on any occupation, trade or business- Article 19(1)(g)
- With the emergence of globalization, the Internet has altered the definition of trade and profession. With e-commerce, it has provided a significant contribution to the GDP of a country. Hence, not recognizing this as a fundamental right would have economic ramifications.
- From online shopping sites like Amazon to cashless banking during pressing situations like demonetization, it has provided a means to secure the right to trade and profession. From the conventional ‘brick and mortar’ model to an electronic and intangible form, the internet for many businesses is their life and blood.
- It has a role in increasing the economic potential of the economy by not limiting to trade to domestic markets but being accessible around the world.
- In the case of Anuradha Bhasin v. UOI, it was stated that the internet is an important tool for trade and commerce. Globalization and rapid advances have opened new business avenues and transformed India as a global IT hub.[15]
- Right to education – Article 21A
- Education is one of the prominent reasons for the gap between different classes of society.
- If we look at the current crisis in the world- Coronavirus, which has led to a shutdown of education institutions and workplaces, the Internet has provided a powerful means for students to yet have access and not skip semesters. The virtual world of education through different apps has provided the shutdown from not being a hindrance.
- If Internet access is made a fundamental right, people from the rural parts can demand it and gain certain areas of knowledge which will aid in reducing poverty.
The fundamental rights are all integrated and dependent on its existence. The Internet presents a new space for accessing these basic or primary rights. It receives it democratic governance from the necessary procedural justification as stated earlier. Its imposition is not only required but it carries a notion of constitution embedded in it due to receiving normative weight from the basic rights of freedom of expression of speech, profession and education under the umbrella of right to democracy. Also reinforced in the recent matter, it was said that
‘law should imbibe technological development and accordingly mould its rules so as to cater to the needs of society. Non recognition of technology within the sphere of law is only a disservice to the inevitable…the importance of the internet cannot be underestimated, as from morning to night we are encapsulated within cyberspace and our most basic activities are enabled by the use of the internet.’[16]
The domain of exercise of Right to Internet
Many can plausibly argue that such a right to the internet can be utilized for sedition or subversive speech. Therefore, it needs to be stated that the right to freedom of expression and speech is not an absolute right or blanket right. It can be restricted provided they are ‘reasonable restrictions’ as stated under Article 19(2). In one of the case it was stated[17], it was stated that the rights under Art 19(1)(a) are not absolute and they must be exercised in a way that does not jeopardize the ‘paramount interests of the State or community at large.’
A very recent judgement also raised the same issue. With a radical change in the status of Jammu and Kashmir with Article 370 being taken away, an Internet shutdown was imposed. In one of the recent matters of Anuradha Bhasin[18], the petitioner questioned the internet shutdown as it interfered with her right to carry out her profession and curtailed her right to freedom of expression and speech. She was obstructed from circulating and publishing the Srinagar times. It was held that a curtailment on such a fundamental right has to be proportionate. To interpret ‘reasonable restriction’, a four-pronged test was adopted from the German Federal Constitutional Court which was also modified in the landmark judgement of K.S. Puttaswamy v. Union Of India (2019)[19]. It was as follows: i) legitimate goal test- a clear object must be made for such restriction; ii) rational connection stage- a rational nexus between the measure and object must be established. It has to be proximate and not remote; iii) Necessity Stage- evaluation of alternatives must be done where any less restrictive but equally effective one is absent; and iv) balancing stage- here the proportionality is looked at; any disproportionate impact would defeat the purpose; it should impair the right-holder in the least way possible. Any order for suspension of the internet must adhere to the principle of proportionality and must extend only to a necessary duration.
Like every other right which has been restricted the clause provided in Art 19(2), it was stated in the case of Chintaman Rao v State of Madhya Pradesh (1950), that the word “reasonable” implies intelligent care and deliberation, that is, the choice of a course which reason dictates. [20]
Conclusion
Given the crucial role it plays in contemporary society or the digital era, the right to internet is indispensable for information diffusion. The Right to Internet, now cannot be a mere use of enjoyment or a concept that is only accessible by the wealthy. It has now evolved into a platform that aids in realizing the Fundamental Rights embedded in the Constitution.
“The views of the authors are personal“
Reference
[1] Wang, Xiaowei. “A Human Right to Internet Access: A Gewirthian Approach.” Frontiers of Philosophy in China, vol. 11, no. 4, 2016, pp. 652–670., www.jstor.org/stable/44157038. Accessed 2 May 2020.
[2] The Constitution of India 1950, art 19.
[3] A Human Right to Internet Access: A Gewirthian Approach (n1).
[4] Siddhant Sharma and Utkarsh Yadav, ‘Access to Internet in India: A Constitutional Outlook on Right to Internet’ [2017] Accessed 2 May 2020.
[5] Ibid.
[6] Lawrence Liang,The Oxford Handbook of Indian Constitution: Free Speech and Expression (Oxford University Press Publishing 2016) 815.
[7] 1950 AIR 124.
[8] 1989 SCC (2) 574.
[9] 1986 AIR 515.
[10] (1992) 3 SCC 637.
[11] Lawrence Liang, The Oxford Handbook of Indian Constitution: Free Speech and Expression (Oxford University Press Publishing 2016) 821.
[12] Siddhant Sharma and Utkarsh Yadav, ‘Access to Internet in India: A Constitutional Outlook on Right to Internet’ [2017] Accessed 2 May 2020.
[13] SCC Online 681.
[14] (2020)1MLJ574.
[15] Ibid.
[16] Anuradha Bhasin (n 14).
[17] Life Insurance Cooperation (n 10).
[18] Anuradha Bhasin (n 14).
[19](2017) 10 SCC 1 MANU/SC/1044/2017.
[20] 1951 AIR 118.
