Right to Internet: Its Rising Importance during the Lockdown
By Yash Jariwala
“The Internet lives where anyone can access it.”
On 24 March, the Government of India under Prime Minister Narendra Modi ordered a nationwide lockdown for 21 days, limiting movement of the entirety of India’s 1.3 billion population of India as a preventive measure against the 2020 coronavirus pandemic in India. During the period of this lockdown, mobile data usage has surged by 16%, leading to telecom network average peak hour speeds plummeting by upto 36%, a research by mobile analytics firm Tutela showed.
In today’s world the internet stands as the most utilized and accessible medium for exchange of information. Expression through the internet has gained contemporary relevance and is one of the major means of information diffusion.
Internet as we know today, found its roots of invention as early as in the decade of 1960s when the first practical schematics for the internet arrived. The first workable prototype of the Internet came in the late 1960stowards the end of the decade. The technology continued to grow in the 1970s after scientists Robert Kahn and Vinton Cerf developed Transmission Control Protocol and Internet Protocol, or TCP/IP, a communications model that set standards for how data could be transmitted between multiple networks. ARPANET adopted TCP/IP on January 1, 1983, and from there researchers began to assemble the “network of networks” that became the modern Internet. The online world then took on a more recognizable form began shaping up to be what we now recognize it as in the year 1990, when computer scientist Tim Berners-Lee invented the World Wide Web. The web helped popularize the internet among the public, and served as a crucial step in developing the vast trove of information that most of us now access on a daily basis.
The “Right to internet Internet” and its importance was recognised in The World Summit on the Information Society (WSIS) that took place in 2003 in Geneva and in 2005 in Tunis. The WSIS Declaration of Principles makes specific reference to the importance of the right to freedom of expression in the "Information Society". In May 2011, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, made 88 recommendations including several to secure access to the Internet for all.
The following chart highlights the adoption of right Right to internet Internet by several countries to ensure the accessibility to internet and not unreasonably restricting an individual’s access to internet:
Nations which have recognized the Right to Internet, either though legislative or judicial means.
The Hon’ble Supreme Court of India in a catena of judgments, has recognized free speech as a fundamental right, and, as technology has evolved, has recognized the freedom of speech and expression over different media of expression. Highlighting the importance of the Right to Internet with respect to the freedom of speech and expression, the Hon’ble Supreme Court in Shreya Singhal v. Union of India (2015) 5 SCC 1 held that if the right to freedom of speech and expression includes the right to disseminate information to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. Further the Hon’ble Supreme Court in the same judgement, struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional for being vague and over-broad and therefore violative of the fundamental right to freedom of speech and expression as envisaged under Article 19 (1)(a) of the Constitution.
The Hon’ble Supreme Court of India in Anuradha Bhasin v. Union of India 2020 SCC Online SC 25 has held that the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a). In this context, the internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).
The internet connection today has become an umbilical to the outside world. Internet is used extensively by professionals for delivering work from home, by schools for imparting education, by various governmental agencies for ensuring smooth administration as well as maintaining peace and order in the society amid lockdown, by the judicial machinery for preserving the constitutional commitment ensuring the delivery of and access to justice to those who seek it. Nonetheless, internet is also used as the primary source of entertainment.
Video calls have replaced face-to-face interaction with colleagues, family, and friends alike. More people started using the video-conferencing software Zoom in the first two months of 2020 than in all of 2019. Stay-at-home entertainment is also booming. And online grocery stores are unable to handle the surge in business, with customers waiting for hours in virtual lines tens of thousands of people long.
The Indian Judiciary has been proactive in embracing advancement in technology in judicial proceedings. The Hon’ble Supreme Court of India in Suo Motu Writ Petition No. 5 of 2020 issued several guidelines for court functioning through video conferencing during COVID-19 pandemic. The Hon’ble Supreme Court of India, several High Courts as well as district courts have adopted the method of video conferencing for conducting hearings in urgent matters which so far remains very effective. Video-conferencing has also been ordered for interactions with incarcerated prisoners, through facilities to be provided bu the jail authorities.
Therefore, restricting the access to internet would gravely affect the fundamental right Right to internet Internet and its virtual reach during the times of a lockdown leading the modern age back to the stone age.
A very integral aspect to be considered is whether the Right to Internet would also extend to include the Right to Highspeed Broadband. The said question arises in the times of lockdown wherein restricting the speed of internet would in a way deny the very Right to Internet. Challenging the imposition of restrictions on internet speed in the Union Territory of Jammu and Kashmir, a PIL has been moved, inter alia, highlighting the outright dismantling of Right to Education due to lack of 4G stating that limited access limits and causes disruptions in dissemination of knowledge and imparting online education, especially in the times of the COVID pandemic. It only goes to show that under the disguise of imposing restrictions on the internet speed the same could be used as a tool to curtail the Right to Internet itself. Especially during the times of lockdown, restricting the speed of internet would virtually bring everything to a standstill and therefore the same has to be decided taking into consideration this aspect as well.
Taking in to account the analogy adopted by the Hon’ble Supreme Court in the decision of Shreya Singhal (supra) that right to freedom of speech and expression includes the access which enables such right to be so exercised, it can in a similar fashion therefore be deduced that right to highspeed broadband would form an integral part of Right to Internet. The Right to highspeed broadband has been recognised the Federal Communications Commission of USA wherein, a minimum internet speed was imposed on the Companies to market their services as broadband or high speed internet. Such an imposition would only fortify and ensure the safeguard of the Right to Internet. While even in India, an internet service provider has to provide a minimum speed of 512 kbps (download speed) to able to market itself as “broadband” (as per the TRAI Quality of Service of Broadband Service Regulations), this limit is both woefully inadequate in the modern world and also not the minimum download speed required to be offered by any internet provider. An internet provider can offer speeds of less than 512 kbps as long as they don’t represent the service to be “broadband”.
Another facet of the right Right to internet Internet during lockdown to be considered is the growing misuse of this very right and the need to impose reasonable restrictions. Social media allows people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence. Further, the internet allows for the transmission of false news or fake images, which are then used to spread rumours and violence. The dark web allows individuals to purchase illegal substances easily. The growing spread of rumours using the means of internet leads to causing of unrest amongst various sections of societies. It is the foremost duty of the State is to ensure security and protect the citizens-their lives, limbs and property. This makes it very imperative on the State to ensure protection of the fundamental rights of its citizens. However, no right can be absolute and more particularly in larger public interest, the extent of their protection can be diminished. The imposition of reasonable restrictions as envisaged under Article 19(2) in order to ensure the constitutional commitment of safeguarding the fundamental rights of all the citizens as well as security and safety of the citizens might therefore be justified.