Should the internet be a fundamental Right?

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“In the early twenty-first century, the Internet came into existence with the advent of the Information Age, fully transforming networking..” Wired commnicatins are now being replaced by the digital revolution and now internet has become a platform for everything .Internet has become lifeline for many people of business, education etc. Nowadays real life is slowly becoming dependent on how you are in virtual life over the internet. (“In The Era Of Digitization: Is Access To Internet Fundamental? – Academike”)Why is Internet Important? Internet has opened a new world for many people. Today internet has become integral part of many people’s lives and many can’t even imagine their life without internet as it can provide education, job opportunities, access to information, a platform for communication, online shopping etc. But does everyone get access to internet? The answer is NO! Not everyone has access to internet. In developing countries only 1 out of 10 people have access to internet. So, when so less people have access to it even after knowing the importance of internet, can we accept internet shutdowns? Some governments take the dramatic step of flipping the off switch.” In order to silence criticism and freedom of expression, the internet. Deliberate internet shutdowns across the globe are becoming more and more frequent. And “India Is The World’s Internet Shutdown Capital”” as India shuts down its internet most frequently(Bakshi).  The Government of Jammu and Kashmir recently claimed that the freedom to access the internet is not a constitutional right, in response to a petition filed in the Supreme Court for the restoration of 4G internet services. (“Can The Right To Internet Access Flow From The Right To Life?”) But even though government is denying the access to internet and even shutting down Internet in places like Jammu & Kashmir, I want to argue that not only Internet should be made accessible to all the citizens of the country but I believe internet should be our fundamental right

Right to internet is a derived right under other fundamental rights just like right to health or right to privacy. According to Carl Wellman “Derived rights can be either more specific forms of some general right, since the right to freedom of the press is a special case of the right to freedom of expression, or auxiliary rights that serve to protect some primary right, since the right to habeas corpus serves to prevent a breach of the right to freedom of the individual”.A derived right is a secondary right with all of the primary right’s limitations and restrictions that it enables. But it being a secondary right is not important rather it being borne out of a connection of primary right is to be seen. Many rights that are guaranteed under article 21 and 19 are somehow related to internet access. Hence, if we restrict the access to internet we are in a way reducing the value and many people won’t be able to enjoy these rights. Even in Maneka Gandhi and Union of India, while discussing the unenumerated rights under article 19, it was seem whether the claimed rights are also integral part of the named right.Article 21 has been interpreted many a times by the courts as a  broad right, which contains various unenumerated rights which, if they can be seen as an integral part of existence, are located within 21. This could be asserted that the right to internet access can indeed be accepted as a fundamental right within the Indian constitutional framework, as internet access is affecting every area of an individual’s life, as well as being a prerequisite requirement for the implementation of various directive standards pertaining to social and economic welfare. (“Can The Right To Internet Access Flow From The Right To Life?”).In January, while reviewing the discriminatory J&K orders about the internet that had been entirely shut down in the Union Territories, the supreme court found this feature of the internet to be a fundamental right. The court further stated that ” Under Article 19(1)(a) and Article 19(1), freedom of speech and expression and freedom to pursue a profession or to participate in any Internet trade, business or occupation are protected by the Constitution. ” In this growing digital age, where even the government is on a quest to move towards a cashless economy and encourage e-governance and digitisation, access to the Internet is absolutely necessary. (‘Right to the Internet: Is it a fundamental right in India? | Sabrangindia’) The government of Kerala has understood the fact that without basic access to the Internet, all digitisation initiatives will prove fruitless. (“Kerala Becomes First Indian State To Declare Internet A Basic Human Right”) Even the automotive industry is manufacturing vehicles that run over electricity and can be accessible directly by mobile phones with the help of internet. Internet is leading us to a future of intelligence and autonomous vehicles. The Internet is considered as an important vehicle for the promotion of the Convention among women. Taking into consideration the 2012 report submitted by Turkmenistan, the CERD Committee noted that “Internet-based outlets (e.g. blogs, websites) play an important role in supporting minority human rights and therefore the State should refrain from limiting access to those outlets and all other information on the Internet in violation of the freedom of speech provided for by international law. And also in order to live a better life, the Internet is the road to the future and the freedom to access the Internet is important and is thus a moral human right. When content has become more available to students, Internet access has become a crucial need for students. (“Right To Internet And Fundamental Rights”)”The Hon’ble High Court claimed in Faheema Shirin RK v. State of Kerala and others[9] that the freedom to access the internet is part of the right to education and the right to privacy under Articles 21A and 21 of the Indian Constitution, respectively.”  Online connectivity not only increases students’ chances for technology acquisition, but also improves the quality of schooling. The closure of the Internet is merely a blanket ban imposed by the state on access to mobile or fixed-line Internet networks, which is not only a block on social media, it also impacts enterprises, healthcare systems, education and human rights. Shutting down Internet services in an emerging country like India is like closing all roads for industrial growth and even shutting down all banks at once. (“Right To Internet And Fundamental Rights”)

In a decade, 391 Internet shutdowns have occurred throughout India, contributing to a gradual decline in technology growth, where the government initiated IT sector growth by introducing programs such as Digital India, that has nine foundations, six of which are directly linked to Internet connectivity, but suspending the internet for such a long period not only poses an obstacle to such pro-internet access. The cessation of Internet services easily represents human misery elsewhere in one part of the world, which also impacts the economy. (“Right To Internet And Fundamental Rights”)” In 2015-16, Internet shutdowns cost India $968 million (Rs 6,485 crore), the largest loss among 19 countries surveyed, and the product of 22 shutdowns, the same as war-torn Iraq, showing the negative impact of these shutdowns on the economy, according to a report by the Brookings Institution, a US-based think-tank.”A detachment from social media such as WhatsApp, Facebook, Twitter or other social networking platforms is not necessarily an Internet shutdown. This means restricting opportunities for musicians, developers and students who have dedicated themselves to amplifying the concept of learning that online outlets, like online portal courses from SWAYAM, offer. (“In The Era Of Digitization: Is Access To Internet Fundamental? – Academike”) Between July 1, 2015, and June 30, 2016, the Brookings report evaluated “81 short-term shutdowns across 19 countries and concluded that these shutdowns cost the global economy at least $2.4 billion.” (Rs 16,080 crore).India ($968 million) suffered the largest damage, led by Saudi Arabia ($465 million) and Morocco ($320 million). (‘India Faces Greatest Economic Loss from Internet Shutdowns’) When we live in an environment where the Internet is an integral part of human life, the Internet plays a vital role in the growth of an economy. In the Anuradha Bhasin v. Union of India case the court acknowledged that the internet is also a very useful medium for trade and commerce. The Indian economy’s globalization and the rapid developments in information and technology have opened up large business avenues and turned India as a global IT centre. There is no question that there are many things that are totally reliant on the web. Such an Internet-based right to trade further encourages consumerism and the availability of options.Accordingly, right to trade and communicate through the internet is therefore constitutionally covered under Article 19(1)(g), according to the limitations laid down in Article 19(6) of the Treaty (“Right To Access Internet : A Fundametal Right – Legal Articles In India”). Today, to a significant degree, clinical practice, commerce and industry are internet-based. Online industry is burgeoning: plane fares, rail travel, movie and music performances, gallery tours, taxis, hospital visits, restaurants, household necessities such as vegetables and eggs, permits and licenses, not to mention utility bill payments such as power, piped gas, telecommunications and water bills, are all charged online. If the use of the internet is limited, it is bound to have a significant effect on freedom of commerce and industry. (“The Question Of Internet Access – India”)

COVID 19 pandemic has shown and made us realize the value of internet as without internet children wouldn’t have been able to access education which could result in lag of years. Without internet work from home would not have been possible as most of the work requires transfer of information for which we require information. What about E-shopping? In pandemic when travel has been restricted, people staying away from urban areas who don’t have essential need’s shop near them then it will become a hard time for them to survive at such situation we understand the value of E-shoppping as sitting at any place we can order whatever we like. FOR EXAMPLE:KASHMIR:- In Kashmir, a petition was filed which emphasised the need of 4G internet speed during a pandemic as in a world which is running behind 5G, people in Kashmir are still using 2G due to which many problems have rosen. The petition contended,” With minimal and restricted internet access, patients and doctors are unable to access the latest information, advice and guidance by allowing only 2G speed in the UT.”. In such a fast paced generation, we can say that 2G internet is almost equal to no internet as too many difficulties have to be faced by people of Kashmir like doctors, “Several public health practitioners, medical professionals, and physicians have consistently expressed their concern about spending valuable time attempting to download the new COVID 19 reports, guidelines, manuals and guidance on care and management. In some cases, due to the Internet speed being too slow to download heavy files, doctors are not able to access these services at all..” claimed the petition. (“Right To Internet And Fundamental Rights”) Such restriction on the internet violates the right of people of Kashmir to education, health, business and expression.Due to restriction on internet, people are unable to access any information regarding any advice for COVID 19 treatment. Even the doctors have not much knowledge about treatment of COVID released in other parts of the country and internationally. In addition, it prohibits access to the telemedicine guidelines provided by the Indian Government to provide interactive channels for residents with healthcare and to minimize the number of people attending hospitals. The dual unavailability of the new therapies and telemedicine consultations contradicts the Right to Healthcare, which is protected by Article 21 of the Indian Constitution. The prohibition also goes against the Right of Access to Justice, with the courts running digitally at present and the method of bringing cases heading to an online mechanism. The high-speed internet ban has made access to justice inaccessible for residents of Kashmir, as well as access to telemedicine appointments. In addition to the problems surrounding access to medicine and justice, the ban has significant consequences for employment and education. Organizations have been directed by the Indian Government to introduce a work from home strategy that is unworkable in Kashmir.Because of the high-speed internet ban, the inability of people to work violates both the right to livelihood referred to in Article 21 and the right to trade granted in Article 19(1)(g) of the Indian Constitution. The government eventually directed all schools and colleges to be closed, with instruction shifting to online platforms. These sites do not run in Kashmir and so the government is also in breach of the right to education provided for in Article 21-A of the Constitution.. (Gupta)

The Court agreed that the flow of data is not only a standard obligation under the Constitution, but also a natural law necessity, and therefore no law can be passed clandestinely unless there is a clear ground of privilege or countervailing public interest to be balanced, which the State must expressly argue. It clearly held that the government’s argument (that it was too hard to generate numerous orders being given and revoked on a day-to-day basis) is not a legitimate excuse for declining to release orders. The Court held that it is not possible to acknowledge a full blocking/prohibition on the Internet perpetually. The Court ruled that it would not be possible to recognize a total blocking/prohibition indefinitely on the Internet. Consequently, the Review Committee does not only discuss the issue of whether the limitations also meet with the provisions of Section 5(2) of the Telegraph Act. The problem of whether the directives are still proportionate must also be examined. The internet suspension order must not be permitted to continue past the required amount of time (“India Law Journal”). A survey for the BBC World Service shows that almost four in five people around the world agree that access to the internet is a human right.The study showed widespread support for access to internet from both sides of the digital divide, amongst more than 27,000 adults across 26 countries. Countries like Finland and Estonia also have stated that access to internet is a basic human right for their residents. The BBC survey showed that “87% of internet users felt that the constitutional right of all people to use the internet should be “. More than 70 percent of non-users felt they should have access to the net. Overall, almost 79 percent of those surveyed said they either strongly agreed with the definition of the internet as a fundamental right or fairly agreed with it – whether they actually had access to the internet”.. (“BBC News – Internet Access Is ‘A Fundamental Right'”) It’ll be worthy the government’s time to prepare simple internet shutdown rules that are in compliance only with decision of the Court, and should also be sent out for public comment. Maybe a cap may be imposed on how long such a phase should last, aside from terms whereby individuals can be held under a cyber curfew. For even more than five months already, much of Kashmir has been under an internet outage, which is long enough just to knock business and social life out of gear. Normal life can hardly be said to have returned in today’s times without the net turning back on. (“Business News Today, Stock Market News, Sensex & Finance News Online – Mint”)

WORK CITED

“Can The Right To Internet Access Flow From The Right To Life?”. The Wire, 2020, https://thewire.in/rights/internet-access-fundamental-right.

“Internet Access A Fundamental Right, Supreme Court Makes It Official: Article 19 Explained”. India Today, 2020, https://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10.

“Kerala Becomes First Indian State To Declare Internet A Basic Human Right”. India Today, 2020, https://www.indiatoday.in/technology/news/story/kerala-first-indian-state-declare-internet-basic-human-right-966265-2017-03-18.

“Right To Internet: Is It A Fundamental Right In India? | Sabrangindia”. Sabrangindia, 2020, https://sabrangindia.in/article/right-internet-it-fundamental-right-india.

“Right To Internet And Fundamental Rights”. Legalserviceindia.Com, 2020, http://www.legalserviceindia.com/legal/article-2967-right-to-internet-and-fundamental-rights.html.

“Right To Access Internet : A Fundametal Right – Legal Articles In India”. Legal Articles In India, 2020, http://www.legalservicesindia.com/law/article/1577/10/Right-to-Access-Internet-A-Fundametal-Right.

“Internet: A Fundamental Right”. Lexlife India, 2020, https://lexlife.in/2020/05/25/internet-a-fundamental-right/.

The Question Of Internet Access – India”. India Legal, 2020, https://www.indialegallive.com/viewpoint/the-question-of-internet-access/.

“In The Era Of Digitization: Is Access To Internet Fundamental? – Academike”. Academike, 2020, https://www.lawctopus.com/academike/in-the-era-of-digitization-is-access-to-internet-fundamental/.

Right To Internet Access, A Fundamental Right | Lawsisto Legal News”. Lawsisto.Com, 2020, https://lawsisto.com/legalnewsread/NDkzMg==/Right-to-Internet-Access-A-Fundamental-Right.

Gupta, Shubham. “The Internet Ban In Kashmir: A Hurdle To Fundamental Rights In The Pandemic — Human Rights Pulse”. Human Rights Pulse, 2020, https://www.humanrightspulse.com/mastercontentblog/2yb80l3288brfqfo82uwjvo0gayu32.

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