The digital revolution is the most important transformative event of contemporary times. The current pandemic further accelerated the shift to the virtual space. As the world came to a standstill, all major sectors shifted online, paving the way for complete digitisation so that the boundaries between the real and the virtual blurred in unimaginable ways. Due to this shift and the resulting dependence, it has become imperative to not only recognise the importance of the internet, but also advocate for its global access.

This recognition should ideally come in form of legislation with a two-fold purpose: to put an affirmative obligation on governments to eradicate the digital divide, and to ensure that one’s access to the internet is not restricted arbitrarily.

Challenges in India

With most of the Indian population being digitally illiterate, the lack of a separate fundamental right continues to haunt those who are deprived of a world of opportunities available to only those with internet access.

a. Internet Shutdowns: 437 internet shutdowns were ordered by the Government between 2012 and 2020, putting India on top of the global chart in that regard. Around 60% of shutdowns are “preventive” in nature, ordered in anticipation of a potential breach of law and order. Internet was shut in parts of Assam, New Delhi, Uttar Pradesh, and Rajasthan in wake of protests against the Citizenship Amendment Act, in the same way it was shut down in Jammu & Kashmir in August 2019, in anticipation of a potential uproar against the abrogation of Article 370.

b. Digital Divide and Internet Penetration: According to the 75th round of National Sample Survey, just 4.4 per cent rural households have a computer, against 14.4 per cent in urban areas, with just 14.9 per cent rural households having access to the internet against 42 per cent households in urban areas. Similarly, only 13 per cent of people over five years of age in rural areas have the ability to use the internet against 37 per cent in urban areas. According to the Telecom Regulatory Authority of India, in 2018, the total internet density in the country stood at about 49 per cent. Of that, 25 per cent lived in rural areas and 98 per cent in urban areas.

c. Lack of a Data Protection Legislation: India has not enacted any specific legislation with respect to data protection, and is also not a party to any international convention or declaration on protection of personal data. Having a separate Fundamental Right to Internet would bring with itself other ancillary rights (such as protection of personal information and data) and their protection on the internet. The Indian Parliament would hence be compelled to draft a proper data protection legislation based on discussion and deliberation while keeping in mind the (potential) constitutionally protected fundamental right to the internet.

Evolution of Indian Jurisprudence

It was in 2019, in Fahima Shrin v. State of Kerala, that the first Indian High Court recognised that Right to Internet access forms a part of The Right to Privacy and The Right to Education under Article 21 of The Constitution. The second landmark judgement was delivered by the Supreme Court of India, following in the footsteps of the Faheema Shirin case.

Before revoking the special status of the erstwhile State of Jammu & Kashmir, the government ordered a blanket ban on all communication services, including the internet. A petition was filed by journalist Anuradha Bhasin challenging the constitutionality of the orders that gave effect to this ban. The Court, in its decision, stood one step away from declaring Right to Internet as a separate fundamental right, and instead, held that the internet is a medium through which other fundamental rights are exercised. It held:

“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”.

After the Anuradha Bhasin judgment, the government was quick to restore the internet in Jammu & Kashmir; however, the speed was throttled to 2G. This restriction was further challenged in the Supreme Court of India, where the petitioners contended that due to this restriction, a lot of inconvenience was caused to the people of the region, especially doctors and students. The administration of the UT of J&K again cited national security as ground for restricting internet service.

The Supreme Court, while recognising the necessity to balance national security against fundamental rights of citizens, gave no immediate relief to the people. The Court also noted that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation”, and ordered the government to set up a review committee to review the shutdowns and also examine the appropriateness of the other alternatives suggested by the petitioners. However, the Court eventually ruled that the orders restricting internet speed were not unconstitutional.

Why the Anuradha Bhasin judgment falls short of solving problems in India

The first thing to be understood in this judgment is that it has limited scope, as it was delivered in a particular context. The petition only challenged the validity of the orders of the executive authorising internet shutdowns. The Court then scrutinised those orders in view of the importance of the internet in the present world and its connection with fundamental rights. This judgment falls short of solving the above mentioned problems as (i) it does not guarantee a separate Right to Internet leading to arbitrary restrictions, and (ii) does not put any substantive obligation on the States with respect to Right to Internet.

The Court, while holding that Right to Freedom of Expression and Right to Freedom of the Press [Article 19(1)(a)] and Right to carry on any trade [Article 19(1)(g)] on the online platform are constitutionally protected, made an important distinction - that internet in itself is not a fundamental right, but is only a means by which other constitutionally protected fundamental rights are exercised. Hence, any restriction on the internet would have to meet the reasonable restriction criteria under Article 19(2) and/or Article 19(6).

These criteria, as India has witnessed, have been time and again used to suppress freedom of speech and expression as well as the freedom to carry on trade and business. Furthermore, if someone is to consider the internet as a right in itself by an extension, it would still not have a proper separate criteria for regulation and restriction, and would have to be an ancillary right under Article 19. Even though the judgment puts a procedural obligation on the government to not use Section 144 of the Code of Criminal Procedure arbitrarily and to record all shutdown orders, it nowhere puts a positive obligation on the government to expand internet access to those who remain oblivious to it.

This, perhaps, could also be attributed to the fact that no such relief was asked for by the petitioners, and hence remained outside the scope of the judgment. However, the problem of digital divide, internet penetration, and lack of a data protection legislation can never be solved unless the State takes it upon itself to take all suitable measures necessary for the same.

Imagining a Fundamental Right to Internet in India

It is evident that the post-pandemic world will operate primarily in and on digital spaces, and by looking at the current legislation and framework for recognition and regulation of digital rights in India, one can easily figure how far behind the country is. The deep rooted divide could potentially lead to exclusion of thousands of people from the social sphere. This exclusion and gatekeeping will not only prevent those individuals from exercising their Fundamental Rights, but also alienate and isolate them from the parallel world that exists on the internet.

A potential Fundamental Right to Internet could have a positive as well as a negative character. The positive character would put an affirmative obligation on the government to implement schemes and policies to ensure every individual has an internet connection and is not excluded from the digital sphere. The negative character would ensure that the government does not interfere with one’s right to access the internet and does not restrict it arbitrarily.

While grounds such as “national security”, “law and order”, and “public order” can still be introduced as restrictions on the potential Right to Internet, the scrutiny and analysis of the situation would be high, and the courts will eventually develop their own principles and doctrines to remove the arbitrariness in restriction of internet access. Since the right will not be treated as ancillary to other rights, the principles evolved would also be strictly contextualised and centred on use and restriction of internet services.

The Paramvir Singh Judgment: A guiding light?

The Supreme Court recently ordered installation of CCTV cameras in all police stations and Central probe agencies. To make sure that this order was complied with, the Court passed directions for the constitution of “oversight committees” at the State and District levels for installation and maintenance of the CCTV cameras. The Court has also directed Finance Departments of all States and UTs to allocate funds for the committees.

Since the Parliament of India has in recent times become redundant in terms of taking legislative action, it is time for the judiciary to pass such necessary orders while declaring right to access the internet as a separate fundamental right. The Court could deliver a judgment which would (i) declare internet as a separate fundamental right, give it a positive character, develop a specific framework for its regulation and restriction, and (ii) following the Paramvir Singh judgment, order the setting up of State and District level oversight committees to keep a check on arbitrary internet shutdowns and internet penetration.

Conclusion

It is well established that our transition to complete digitisation is almost complete, and it is high time that we have a universal right to access the internet. A post-pandemic world will operate largely on digital spaces which exclude those bereft of internet connectivity. However, it is also to be noted that the pandemic only worked as a catalyst for acceleration, and that the internet was already growing at a rapid rate by bringing almost all sectors under its ambit.

The recognition of the importance of the internet by courts in India has slowly paved the way for the recognition of a separate Fundamental Right to access the internet. To make sure that internet access isn’t just a privilege of the privileged, and to ensure minimal restrictions on the access of the same, the first step would be to recognise it as a separate Fundamental Right.

The author is an undergraduate law student at Gujarat National Law University. He can be reached at zayaan44@icloud.com.