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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Internet Access as a Fundamental Right

Abstract:

“As in the present situation, this pandemic has created huge cues and chaos, with the lockdown being imposed many people are stuck away from home, like students living in hostel and PG, due to lockdown economy has almost reached recession, earning a livelihood has become a challenge, because of which people are unable to earn and pay, as a result of which those who are stuck in rented houses unable to pay the rent, can also avail internet along with other basics like food and water, in this way they will also be connected with the society despite of the financial hardships. Many people facing money crises in this situation, have got financial help only because of social media. There were many more people who were stuck at different parts of the country, basically the poor migrant workers, most of them were sent back homes, many children who were studying away from their home towns have been brought back home only because the stories of their conditions and hardships was shared and told to everyone via internet, as the whole world was in standstill, there was no other way of communication left, the voice of the people have reached out to the government only through internet, in the form of e-mails, posts, videos, audios.” 

Introduction:

Technological advancement has played a major role in connecting people from across the globe, when we say technology; the first word which crosses our mind is Internet. In the 21st century internet is an important resource, right from accessing to online classes to availing medical help by talking to one’s doctor via voice or video call from any corner of the world, to getting the necessary items like grocery, medicines to our doorstep in just one click, this all has been possible because of internet, it has not only helped people to gain knowledge about anything and everything, but at the same time has also helped in shaping many lives through e-business. 

Scope of internet:

  1. Seek information on anything across the globe on a real-time basis.
  2. Communicate, collaborate with others.
  3. Telecommute to office or work from home.
  4. Do transactions with business entities.
  5. Down load files from a remote.
  6. Get educated and entertained.
  7. Carry out social.
  8. Do group activities.
  9. Collect operational data from remote equipment (stationary as well as moving).
  10. Process data while it is streamed to the central server.
  11. Get real-time data on the surrounding devices, systems, weather to automate activities.
  12. Design a decision-taking system as against the decision support system.
  13. Connect people, stakeholders, machines and everything. 

Importance/Uses of Internet:

1. Electronic Mail (email)
The internet’s first big application is email. People thronged to email for immediate sharing with others of information, data files, images , videos, business correspondence and every other files. This has allowed easier collaboration between individuals and increased the productivity of company. E-mail has greatly minimised the use of paper and lowered the burden on traditional mail systems.
While many rich features are offered by other recent teamwork platforms, they are not able to de-popularize email because it still controls official because personal correspondence. There are several free email websites that provide email services, and nearly every person has an email address and email connexions. The idea of email paved the way for the creation of several ground breaking methods for better communication.
2. FTP File Transfer
This is the second major use case for the internet in the early days. FTP is the file transfer protocol that enables data exchange between two stakeholders over internet media in a secure way. The data exchange may occur between two business entities or customers with business and vice versa. Normally E-mail restricts the size of a file that can be shared and also it is not secured to share sensitive and confidential data across public networks. FTP concept is still in use even today in mobile apps for files downloading.
3. Search Engines
The knowledge one finds is found by these engines, accessible on any server across the globe (world wide web). The renowned search engines in use today are Google, Yahoo, and MSN. In this site one can search for something, and the search issue can be in any language. People have actually began to use the term Google as a common noun associated with quest.
4. E-Commerce
The Internet provides for the online sale of products and services. There are several vendors of e-commerce platforms such as Amazon, Ola that aggregate multiple products / services available on the market and offer them to customers through their portal. Items are procured, processed in their stores, processed and sold by the manufacturers of the network under their own name. There is a decent discount for consumers and they don’t have to hit actual shops.
5. Online Banking
Identified as net banking, it makes it easy to perform banking transfers at ease whether seated at home or on the phone. Footfalls in the branches of the banks have gone down appreciably for nearly all facilities available in 247 net banking. Any sum of money can be moved through this system instantaneously. E-Banking facilitates the paying of energy bills, phone bills, and other utilities.
6. Cashless Transactions
Bill payment by debit cards , credit cards, UPI gateways is on the rise at merchandise outlets. To the degree of the rise of these sales , cash distribution is limited in the economy. Every year it is growing by more than 50 percent and within the next 5 years it is projected to grow by 10 times.
7. Education
The Internet provides a wealth of educational material with organised navigation and search facilities on any subject. One should search up any reading material and the internet can get it from any server in some area of the world for them and people don’t need to go to libraries or go through the books. Many who are unable to attend a physical (face-to – face) class can take an online course where they link to the instructor in video mode in the other part of the world and be taught other audiovisual resources backed up on the subject.
8. Collaboration
Online chat apps such as facebook , Skype, and other video conferencing applications help people get 24 x7 linked and have a business and personal conversation that is hassle-free. This stops people from flying unwantedly and saves their time for constructive use. With smooth access to the workplace, the Internet has also allowed work from home and prevents everyday commuting.
9. Social Networking
The Internet brings people together and helps them to form communities in society. There is an exchange of facts, thoughts, views and views on some social / political problems. The political and social association makes use of this medium to advance the public interest.

Internet and India and a glimpse of current scenario :

India being a developing country, is not fully technologically advanced, still there are places with connectivity issues situated in remote areas where either the circumstances or the poor network has deprived people of internet. For e.g. – There has been violence outbreak in Jammu and Kashmir a number of times, internet shutdown has been imposed from time to time.
This curtailment of internet has led to many problems among the people because of their dependency on internet for commencement of their work. This demanded for making internet available to every person as their right.

Through internet people not only learn things or expand their business, but they also express their views and opinions on various social, cultural, political issues, it provides a platform for people to know about cultural diversities prevailing, through it many people get a platform to raise their voice against any prevailing evil. For e.g.- #metoo movement helped women raise their voice against the injustice which they have been facing, #allblacklivesmatter helped people all over the world to raise voice against racism when Gorge Floyd was killed, and the recent social media challenge for women to upload black and white pictures, to make aware people of the injustice and brutality being faced by Turkish women.
Movements whether initiated by a mob or through social media platform, have always been for the welfare and betterment society. The idea behind these movement have always been to make the world a better place, with the expansion of technology such movements are carried through internet on various social media platform.

As in the present situation, this pandemic has created huge cues and chaos, with the lockdown being imposed many people are stuck away from home, like students living in hostel and PG, due to lockdown economy has almost reached recession, earning a livelihood has become a challenge, because of which people are unable to earn and pay, as a result of which those who are stuck in rented houses unable to pay the rent, can also avail internet along with other basics like food and water, in this way they will also be connected with the society despite of the financial hardships. Many people facing money crises in this situation, have got financial help only because of social media. There were many more people who were stuck at different parts of the country, basically the poor migrant workers, most of them were sent back homes, many children who were studying away from their home towns have been brought back home only because the stories of their conditions and hardships was shared and told to everyone via internet, as the whole world was in standstill, there was no other way of communication left, the voice of the people have reached out to the government only through internet, in the form of e-mails, posts, videos, audios.

Now that everybody is locked up inside their houses, in order to keep themselves busy, people are perusing their hobbies and interests, those who are interested in music, dance and fitness, are attending these classes online, those who already have some talent are sharing their skills with others, via internet, making people learn and grow, people are doing work from home, colleges with pending examinations are conducting online examinations, and online classes, even if slow but atleast the world is running and hasn’t completely stopped yet, it is only because of Internet.

If there would have been no internet, people would never have known about the social issues prevailing, which is very necessary for a society to know, people would never had raised their voice against the injustices and crimes, and with zero connectivity and with no awareness this country would have been worst of all.
Keeping in view the necessities of people, and the requirement of the society at present our Courts have passed various judgements relating to this very topic- Internet Access.

Judgements on Internet Access:

Recently, when referring to a petition for the restoration of 4 G Internet services filed at the Supreme Court, the Jammu and Kashmir government said that the freedom to access the internet is not a constitutional right.
The tri-judicial bench that also included the courts BR Gavai and R Subhash Reddy said Section 144 CrPC (prohibitory orders) could not be used permanently to restrict freedom of speech and opinion and difference of view.
Access to the Internet was said by the bench to be a constitutional right under Article 19 of the Constitution, subject to some limitations and said freedom of the press is a precious and sacred privilege. It said magistrates should apply their minds and obey the precept of proportionality when issuing prohibitory orders.
This goes against recent court decisions and further demonstrates the state’s reluctance or failure to consider the basic role that internet access today plays in the lives of people and societies. In January 2020, when reviewing all the restraining orders levied in Jammu and Kashmir after the scrapping of the state’s special status, the Supreme Court ruled that the Internet’s permanent suspension was not appropriate and repeated shutdowns led to an misuse of authority.

The Supreme Court ruled on January 2020 that internet access is protected under Article 19 of the Constitution. In response to a plea against the suspension of internet services in Jammu and Kashmir since last August, the Court’s three-judge bench asserted that the right to freedom of speech and expression, as granted by the first part of the article to all people, requires the right to access the internet. In essence, this will make net connectivity a constitutional right even if left unsaid. For a nation that has drawn opprobrium from across the globe over the sheer amount of internet clampdowns levied, this will be a significant development. It will also upgrade the knowledge age to a critical element of democratic life, put India in the league of progressive jurisdictions, and begin harmonising our legal outlook with that of the Human Rights Council of the United Nations, which in 2016 affirmed net access as a human right. Over all, it’s clear that no one’s voice should be muzzled, and barring online self-expression amounts to just that.

More specifically , the court ruled that “the freedom of speech and expression and the freedom to exercise any activity or to engage in any commerce , industry or occupation on the Internet under Article 19(1)(a) and Article 19(1) enjoy constitutional rights.” The court also ruled that the internet prohibitions would follow the rules of proportionality set down in Article 19(2). The court’s decision followed the decision of the Kerala High Court in Faheema Shirin v. State of Kerala, which acknowledged the right to internet access as a constitutional right that forms part of the right to privacy and the right to education under Article 21 of the Constitution.

The extension of our constitutional rights by the supreme court did not come from a cyber-vacuum. The Kerala High Court, which ruled that no one should be unfairly deprived of online access, foreshadowed a similar decision last year, as well as a Supreme Court ruling in 2017 that gave privacy the status of a fundamental right under Article 21, which grants the right to life and liberty to everyone. Of necessity, under defined conditions, certain protections do have “fair limits.” It is a well-established concept that individual liberties are allowed only so long as they do not infringe others’ rights. For example, freedom of expression does not interfere with other imperatives such as law and order. No one should be permitted to wrongly scream “rocket” in a closed hall and spark a stampede, as the classic argument has it. Under Section 153A of the Indian Penal Code, hate speech that encourages enmity between various communities is expressly prohibited. As for the internet, the Court’s judgement granted administrations space to limit their access on condition that it is proportionate to the issue found. Although this formulation is fuzzy and may provide administrations with ample flexibility to explain internet snap-offs in multiple circumstances, it is also critical that the reasoning used for such acts be subject to judicial review. To put it another way, it cannot be achieved at the discretion of an executive.

The Court questioned whether the imposition of the restriction of usage of mobile phones during study hours amounted to an infringement of fundamental rights. The court opined firstly on the benefits of online learning and mobile phones facilitating the exchange of ideas, group discussions, downloading of data or e-books as well participation in online courses such as the SWAYAM program of UGC, among others. The Court challenged whether the enforcement of limits on cell phone use during study hours represented a violation of human rights. First of all, the court ruled on the advantages of online learning and cell phones, enabling the sharing of thoughts, community conversations, uploading of data or e-books, as well as participating in online courses such as UGC’s SWAYAM curriculum, among others.

The Court stressed the petitioner’s submission, Shirin, referring to Resolution 23/2 adopted by the Human Rights Council on the role of freedom of thought and speech in the empowerment of women. The Court also stressed the importance of Resolution 26/13 of the United Nations on ‘Promoting, Preserving and Enjoying Human Life on the Internet,’ which stressed that access to knowledge on the Internet facilitates the right to education by fostering large opportunities for open and inclusive education. Centre on Vishaka & Ors v. State of Rajasthan & Ors [AIR 1997 SC 3011], the Court used the judgement that, in the light of Articles 51(c) and 253 of the Constitution of India, “the international conventions and norms are to be read into the fundamental rights granted in the Constitution of India in the absence of enacted domestic legislation occupying the fields where there is no discrepancy between them” Accordingly , the Court ruled that “the freedom to access the Internet becomes a part of both the freedom to education and the right to privacy under Article 21 of the Indian Constitution.”

The above mentioned judgements have proved as a boon to people, making internet access as a fundamental right. This will not only protect the democracy by giving people right of speech and expression through internet but will also help them to earn livelihood. There have been many art work which are on the verge of extinction, they have been brought back to life through internet, by promoting them through social media handles, hence internet has helped in saving many lives. Through this people can now seek internet access easily.

Internet as a Right in other countries

By UN Report 

The UN has announced that it views the internet as a constitutional right. Specifically, an amendment has been made to Article 19 of the Universal Declaration of Human Rights (UDHR), which states: “Everyone has the right to freedom of thought and expression; this right involves the ability to hold views without intervention and to search, obtain and transmit information and ideas by any media and irrespective of frontiers.” It also extends to women , children, and others highly influenced by the digital divide.

Estonia

The Estonian Riigikogu (Parliament) passed the latest Telecommunications Act in February 2000, adding Internet access to its catalogue of public services:
According to Article 5. ‘The telecommunication networks set out in subsection
(1) Consists of this section:
2) Internet networks that are freely open to all users, irrespective of their geographical position, at a standardised price.

Greece

With the adoption, among other provisions, of Article 5A and, in particular, of its second clause, Greece amended its Constitution:
Both people are eligible to share in the Information Society. Facilitation of access to, and processing, distribution and distribution of, electronically transmitted information constitutes a duty on the part of the State, always in accordance with the assurances set out in Articles 9, 9A and 19.

European Union

Directive 2009/136 / EC of the European Parliament and of the Council came into effect in the European Union, after two years of legislative drafting, on 25 November 2009. Among other directives, Directive 2002/22 / EC on uniform access and consumer privileges pertaining to electronic telecommunications networks and facilities was amended in 2009.

The amendment substituted Article 4 of the 2002 Directive, which reads in part:
‘Availability of fixed-location connectivity and availability of telecommunications networks
1. Member States shall ensure that at least one undertaking fulfils all appropriate demands for connectivity at a fixed location to a public communications network.
2. The connectivity given shall be capable of supporting audio, facsimile and data communication at data rates which are adequate to enable usable Internet access, taking account of the prevalent technologies and technical viability used by the majority of subscribers.

France

On 10 June 2009, in France, the Constitutional Council (Constitutional Council) ruled that (Article 12 of the Decision): ‘given the extensive growth of public online communications services and the importance of public online communications services for the participation in democracy and the expression of ideas and opinions,’ the free transmission of ideas and opinions laid down in the Declaration of Rights is free of charge.

Finland

Last year, Finland followed suit when it proclaimed internet connectivity in Finland a fundamental right. The right was asserted by an amendment to the Telecom Competition Act, which specified that a working internet access was now provided in the universal service. This meant that from the beginning of July 2010, telecom operators identified as universal service providers had to be able to provide access to a reasonably priced and high-quality link with a downstream rate of at least 1 Mbit / s for every permanent residence and business office.

The related regulation is Section 60 C of the Communications Market Act, and it is the responsibility of the Finnish Telecommunications Regulatory Authority (FICORA) to appoint operators as universal service operators. This goal of making a regional link accessible was achieved in 2010,

Costa Rica

Article 33 of the Constitution-the freedom to use the internet via the user’s or consumer’s preference of platform and free trade and commerce.

Spain

In Spain, the decision came last month when the Sustainable Economy Act 2/11 of 4 March added internet connectivity to its universal service and stipulated that every infrastructure could have broadband connexions at a speed of 1 Mbit per second. The measure also specifies, in Article 52, that the requirements for public broadband service are to be laid down by Royal Decree within four months of the entry into force of this Act.

Reference:

Uses of Internet, available at https://www.educba.com/uses-of-internet/ last seen on 30/07/2020
Can the Right to Internet Access Flow From the Right to Life? Available at, https://thewire.in/rights/internet-access-fundamental-right last seen on 30/07/2020
Access to Internet is a fundamental right, rules supreme court , available at https://www.thehindubusinessline.com/news/right-to-access-internet-is-a-fundamental-right-rules-supreme-court/article30531490.ece last seen on 30/07/2020
The Internet as a human right, available at https://www.brookings.edu/blog/techtank/2016/11/07/the-internet-as-a-human-right/ last seen on 30/07/2020
Right to access the Internet: the countries and the laws that proclaim it, available at https://www.diplomacy.edu/blog/right-access-internet-countries-and-laws-proclaim-it last seen on 30/07/2020
Opinion | At last, internet access as a fundamental right, available at https://www.livemint.com/ last seen on 30/07/2020
Faheema Shirin v. State of Kerala ,2019(2) KHC 220
Faheema Shirin v. State of Kerala, available at https://lawtimesjournal.in/faheema-shirin-v-state-of-kerala/ last seen on 30/07/2020

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Author: S. Ashita 
College: BVDU New Law College Pune

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