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Elusive quest for Right to Access Internet in the Indian Legal Landscape

Uday Shankar and Saurabh Bindal

“As the authors sketch the last words to this piece, they sit back and reflect whether this word of theirs will be known to the world morrow, because they apprehend that with the growing day, the dusk delved by the ineluctable “State” will shroud their right to access internet.”

Revolution of internet has engulfed each and every nation alike. In today’s era, contemplation of a world, without internet, has become last to impossible. This piece forays into the discussion on accessibility of internet as a perceived human right. The universality of human rights stamps an inherent attribute to such rights. This is all the more true for civil and political rights. Not to mention, that some of the socio-economic rights have also started drawing the flavor of inalienability in the recent era. That is not to say that the State cannot make progressive laws to further the cause of these rights, but that certainly means that the State cannot make laws so as to bereave a person of these rights. Earlier, the civil and political rights were thought to be a class in themselves. This is not the case today. Social and economic rights have also been fathomed as the wheels of the chariot of human rights, tagged along with the civil and political rights. Together they constitute what are called human rights. The inflation in the content of human rights, over a period of time, suggests the changing vicissitudes of life. From generation to generation, the concept and context of autonomy and dignity has experienced a transformation. Social and economic cluster of rights have been inflated for ensuring higher parameters of fruitful and dignified living. This is done to ensure that the State does not shirk from its responsibilities to provide a meaningful life. The leitmotif of this piece is not to regurgitate over the scholarly writings available on the chosen topic. Instead it provides a lightening rod for placement of right to access internet under the parasol of the Indian Constitution. This issue draws all the more significance after the Indian Government, who represents the executive wing and is branded in Part III of the Indian Constitution as “State”[i], has shown indulgence in activities related to stalling the growth of internet.

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The Indian Constitution and the Growing Panoply of Socio-economic Rights:

Indian Constitution came as a result of the hard fought struggle to resuscitate the hopes and aspirations of people. It took India, three years to draft the Indian Constitution, post independence. With the civil and political liberties at stake, it was hard to visualize a world in which the socio-economic freedoms can be made a reality. The drafters of the Indian Constitution burnt the midnight lamp to come up with reams of paper, which not only bound the heart and soul of this Sovereign, Socialistic, Secular, Democratic, Republic, but also gave to this barren land the spirit and flesh to strive for the struggle for existence. The heart represents the civil and political freedoms and the socio-economic freedoms tie the flesh. Civil and political rights were placed by the drafters along with the socio-economic rights, so as to appraise the values which the freedom struggle imbued on them. The entrenched civil and political rights came as the Fundamental Rights under the text of the Constitution of India, 1950 and the socio-economic rights acquired the pedestal of Directive Principles of State Policy. Besides, socio-economic rights can be found interspersed between the chapter on Fundamental Rights and Directive Principles of State Policy. Socio economic rights were made non-adjudicable in India, because the same require political, economic propriety for their enforcement. In recent years innumerable rights from the socio-economic cluster, have made a transformation from the charter of directives to the cover of fundamental rights. This significant drift establishes the fact that the content of human rights shows generational shift along its trajectory.

The extension of the panorama of human rights under Article 21[ii] of the Constitution of India, 1950, proffers one instance of the growing umbrella of human rights. The extension of human rights along the very periphery of Article 21 endorses the fact that though the essence of each right might be to act as a means to achieve the goalpost of right to life, but then, each right in itself stands on the pedestal of human rights. Drawing this analogy, it can be sufficiently inferred that it has been entrenched in the struggle for existence that desires become aims and with perseverance, they eventually turn the roads towards a guarantee.

Guarantee of socio-economic rights ensures that the “State” indulges itself in taking positive measures for the attainment of such fundamental directives for crusading towards acknowledging the essence of human existence. Guarantee on the flip side, when read in light with the civil and political rights makes “State”, not to indulge in activities which lead to snatching the fundamental freedoms ingrained with an individual. Both work hand in hand. The distinction between both these guarantees lies in their mode of attainment and the limits appended to them.

The Indian Supreme Court in Minerva Mills v. Union of India[iii], allayed the raised conflict between the directive principles and the fundamental rights by stating that “The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. It would amount to refusal to give effect to the words “fundamental in the governance of the country” and a constitutional command which has been declared by the Constitution to be fundamental would be rendered non- fundamental. The result would be that a positive mandate of the constitution commanding the State to make a law would be defeated by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimized and declared unconstitutional. This plainly would be contrary to the constitutional scheme because the Constitution does not accord higher place to the constitutional obligation in regard to Fundamental Rights over the constitutional obligation in regard to Directive Principles and does not say that the implementation of the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights.”

Right to Access Internet and the Indian Constitution:

Access to internet is both the means and an end in itself for the attainment and fulfillment of a dignified life. Only christening internet as facilitator for pursuance of human rights, and not a right in itself, bereaves one of the pith which swathes the ever expanding jurisprudence of human rights. Puissant powers across the world have taken significant strides towards development of their economies on the milestone of internet. Phantasmagoria of human rights calls for acknowledgement of the very fact that change in the strata of rights has always been the case. Inflation in the content of human rights, over the period of time, justifies the cause of recognition of internet as a human right. Credence to the very fact that human rights are ever expanding and cannot be ever stalled through the curtains of societal prejudices can be drawn from the precedents set down by divers countries across the globe, who have always endeavoured to grow the pith and marrow of the charter on human rights. Latterly, all that which could have never been envisaged in the future as a human right has sprung from the fundamental text of human rights as a guarantee. Internet acts as a rung, which forms the ladder of rights, connecting the innate desires with their guarantee. As inherent as they may sound, they play a quintessential role in lifting the value of a human being. Human values ensure dignified existence. A step in the ladder by its very nature forms the part and parcel of the ladder. Such is also the case with the right to access internet.

Wings of right to access internet swaddle in its garb plethora of other freedoms and rights, which in today’s era, if read alone, would lead to departure from the enshrined principles of Justice, Equality, Liberty and Fraternity, sketched along the Indian Constitution, 1950. Within the four corners of the Indian Constitution, 1950, one can stretch the reach of right to access internet. Right to freedom of speech and expression, right to assemble, right to form associations or unions, right to practice any profession, or to carry any occupation, trade or business, right to life, right to education are some of the fundamental rights which get linked to the right to access internet in no uncertain terms in the Indian landscape.

Right to Know and Right to Access Internet:

Freedom of speech and expression embodies within it the right to know. Expression only becomes formulated by recognition of right to know.[iv] This is also true for shaping speech in a democratic nation. Article 19 provides for freedoms of citizens of India. Access to information not only strikes to build a democracy[v], it also engages in the realization of other human rights.[vi]

The Indian Supreme Court for the very first time, in the case of State of U.P. v. Raj Narain and Ors[vii]., while articulating the right to information as a fundamental right under Article 19(1)(a) of the Constitution said that “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing…”The Supreme Court, following the beaten path in the case of Indian Express Newspapers (Bombay) Private Ltd. and Ors. etc. v. Union of India and Ors[viii]., said that “All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people’s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration…” Both these cases underscore the importance of right to information in establishing a society which is built on the percussion of democracy. While treading on what ought to be covered under the parasol of right to information and what is to be left, the Supreme Court in the case of S.P. Gupta Vs. Union of India[ix], said that “The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of the Government must be the rule and secrecy an exception…” Emphasizing on the role played by freedom of speech and expression in cultivating the right of information, in Secretary, Ministry of Information and Broadcasting, Government of India and Ors. v. Cricket Association of Bengal and Ors[x], the Court said that “The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-fulfilment. It enables people to contribute to debate on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts”. In any organized society, right to live as a human being is not ensured by meeting only the animal needs of a man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human beings are designed to achieve this object.[xi] Again in Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd.,[xii] Court recognised that the Right to Information is a fundamental right under Article 21 of the Constitution. The Court said that “Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform.”

Right to know, though not being part of the textured Article 19 of the Constitution of India, 1950 has been recognized by the Indian Apex Court as a fundamental right. Scholars might argue that right to access internet breaches the fundamentals of human rights and strikes to claim existence over the medium. It is underlined that latterly internet has grown from a mere medium to an expression. Furthermore, the Indian Apex Court has time and again recognized mode of forming expressions as part of freedom of speech and expression. The right of citizens to exhibit films on doordarshan was recognized by the Court in Odyssey Communications (P) Ltd. v. Lokvidayan Sangathan[xiii]. In PUCL v. Union of India,[xiv] Indian Supreme Court acknowledged the fact that telephone is also a means of expression. Theses epitomize the fact that medium also becomes part of expression and has been acknowledged as part and parcel of freedom of speech and expression at various instances. Even if a right is not specifically mentioned in Article 19(1) it may still be a fundamental right covered by some of the Articles, but only if it is an integral part of some named fundamental right or partakes the same basic nature and character as that fundamental right. As for example, freedom of the press is covered by Article 19(1)(a), though not specifically mentioned therein.[xv]

Right to Assembly and Right to Access Internet:

Article 19(1)(b) of the Indian Constitution provides for the right to formation of peaceful and unarmed assembly. Right to assemble over internet provides a facet of the growing capital and labour intensive industrialized world. Today, the import of the term “assembly” cannot be limited to only physical assemblage. Right to form assembly reaches its desired goal through recognition of the right to access internet. Right to access internet not only furthers the cause of freedom over internet, but also bolsters the advancement of different freedoms penned along the Indian Constitution. In Himat Lal K. Shah v. Commissioner of Police[xvi], the Indian Supreme Court, while articulating the boundaries of right to assembly, said that “at the root of this concept lies the citizens right to meet face to face with others for the discussion of their ideas and problems, and public streets are the ‘natural’ places for expression of opinion and dissemination of ideas… public meeting in open places and public streets forms part of the tradition of our national life. In the pro-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of the privileges and immunities. The framers of the Constitution were aware that public meetings were being held in public streets and that the public have come to regard it as part of their rights and privileges as citizens”.  Transposing this dictum in morrow’s changing world, it can be evidently buttressed that right to access internet so as to pursue the cause of right to assembly over internet, which does not represent a physical space, becomes the need of the hour.

Right to Form Association and Right to Access Internet:

Article 19(1)(c) of the Constitution provides for right to form association. The term “association” has a very wide import. The right to form association implies that several individuals get together and form voluntarily an association. Right to access internet touches this right in unambiguous terms. Right to form association includes the right to continue the association.[xvii] That being it, right to access internet, in this fast moving world becomes a transitional right for formation and continuance of associations. Right to access internet links itself with the formation of association and acts as a means to achieve this end.

Right of Trade and Occupation and Right to Access Internet:

Article 19(1)(g) of the Constitution of India, 1950 guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. In Sodan Singh v. New Delhi Municipal Committee[xviii], the Indian apex Court said that “the guarantee under Article 19(1)(g) extends to practice any profession, or to carry on any occupation, trade or business. The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nut-shell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living.” Such being it, right to access internet, taking cognizance of the present day developments, becomes a means and an end in itself to achieve the enunciated freedom. Nothing can be envisaged without the use of internet. Livelihood as pointed by the honourable Court rests on the four pillars of making the ends meet. Every profession, occupation, trade and business finds its synergistic linkage with the internet, barring few examples. Thus, linkage of right to access internet can also be attained through a constructive reading of Article 19(1)(g).

Right to Life and Right to Access Internet:

Article 21 of the Constitution of India stands as the vanguard of freedoms related to life[xix] and personal liberty.[xx] To any civilized society, there can be no attributes more important than the life and personal liberty of its members.[xxi]In Chameli Singh v. State of U.P[xxii], the Court said that “right to live in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.” The right to life, under the protection of Article 21, has been stretched time and again to include the human rights jurisprudence under its ambit.[xxiii] In Sodan Singh v NDMC,[xxiv] the Supreme Court had held that: “In view of the global development in the sphere of human rights these judicial decisions are a strong pointer towards the recognition of an affirmative right to the basic necessities of life under Article 21.” In Francis Coralie v Union Territory of Delhi,[xxv]the Court read under the enshrined right of life, the right to live with dignity. In Unni Krishnan v. State of A.P.[xxvi], the Court said that “if Article 21, which is the heart of fundamental rights, has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of directive principles.”

Right to life guaranteed under Article 21 now includes right to livelihood,[xxvii] right to health,[xxviii] right to freedom from noise pollution,[xxix] right to inexpensive medical care,[xxx] right to water[xxxi] right to free legal aid at the cost of the State to an accused who cannot afford legal services for reasons of poverty,[xxxii] right to go abroad[xxxiii], right to privacy[xxxiv], right against solitary confinement[xxxv], right to speedy trial[xxxvi], right against handcuffing[xxxvii], right against delayed execution[xxxviii], and right to shelter[xxxix].

Such growth of human rights jurisprudence in India, along the periphery of Article 21 of the Constitution of India, 1950 solicits for the unhindered acknowledgement of right to access internet in the Indian judicial landscape. Accessibility to material resources have been time and again acknowledged as fundamental rights under Article 21 of the Constitution of India. This does not negate the fact that accessibility to material resources does not represent a socio-economic right. But it affirms the fact that socio-economic rights scripted under the directives are to go hand in hand with the civil and political rights. Though the mode of realization of these two streams might be different, the sea in which their tributaries merge lead to attainment of human rights at the horizon.

Directive Principles and Right to Access Internet:

The Directive Principles represent the benchmark of socio-economic rights in the Indian Constitution. Though, they are not the only source of socio-economic rights in the Indian Constitution. Articles 38 importune the State to undertake social measures and remind it to create the kind of society; the Constitution expects it to create. Article 39(b) rests a positive obligation on the State to allocate material resources in such a fashion that does not result in heightening of inequalities amongst people and amongst regions.[xl] The term material resources mean and include all resources, natural and manmade, public and privately owned.[xli] The object of the policy as envisaged under Article 39(b) and 39(c) is to effectuate the mandate of the Constitution in the Preamble of the Constitution, namely social justice and dignity of person with equal status.[xlii] The Constitution of India clearly articulates for the allocation of resources in a meaningful way for the attainment of social and economic equality. Furthermore, the mandate of Article 47[xliii] obligates the State to maintain a standard of living.

Social and economic rights are claims of individuals to lead minimum decent life. Human beings must be guaranteed the basic means of sustaining life and denial of these would amount to blatant violations of human rights.[xliv]

Right to access internet even if is presumed as a material resource, calls for its underpinning in the text of the Indian Constitution. Right to access internet also gets its support from Article 38, 39(b), 39(c) and 47 of the Indian Constitution. All obligate the State to vouch for measures to pursue the cause of social welfare. Latterly, the ambit of social welfare has seen inflation. Right to access internet can definitely find its place in the realization of these rights.

Denouement:

Both civil and political rights and socio-economic rights form the cluster of human rights. It is also acknowledged that the requirement of resources is equally important for both the group of rights. Certain element of conflict in implementation of rights is more or less inevitable.[xlv] But such conflict is not sufficient to take away the universal character of these rights. It has been successfully established that both group of rights subscribe to the same nature of obligations. All human rights are required to be secured through three kinds of duties. There is, first, the duty to avoid depriving a person of some necessity; the duty to protect them from deprivation; and the duty to aid them when deprived.[xlvi] All human rights, including social and economic rights, ensure dignified and decent life to an individual. The two categories of rights must be seen in ‘relational’ nature. Comprehensiveness of rights must be construed in relation to other rights. For example, right to life must be understood along with right to health. A claim involving rights may not, and very often does not, implicate only one right within one so-called category of rights. Rather one can only make sense of many claims if one has the latitude to relate different interests at stake without being locked into a mentality or institutional practice of slotting the claim into one label or another.[xlvii]  Access to internet thus, should be considered as a right in itself in India.

[i]See generally, Article 12, Constitution of India, 1950.

[ii]Article 21, Constitution of India, 1950 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[iii]A.I.R 1980 SC 1789.

[iv] “Freedom of expression has four broad special purposes to serve: (i) it helps an individual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengths the capacity of an individual in participating in decision making, and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.” Indian Express Newspapers v. U.O.I, (1985) 1 SCC 641.

[v] “No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only when people know how Government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy.” S.P. Gupta v. Union of India (1981) Suppl. SCC Page 87.

[vi] Jagwanth, Saras (2002), The Right to Information as a Leverage Right, in The Right to Know, The Right to Live: Access to Information and Socio-Economic Justice. Calland, Richard and Tilley, Allison (eds.) Cape Town: Open Democracy Advice Centre pp. 3-16; see also Geoffrey A Hoffman, In Search of an International Human Right to Receive Information, 25 Loy. L.A. Int’l & Comp. L. Rev. 165, 2003.

[vii] (1975) 4 SCC 428.

[viii] (1985) 1 SCC 641.

[ix] (1981) Suppl. SCC Page 87.

[x]  1995 SCC (2) 161).

[xi] Chameli Singh v. State of U.P, (1996) 2 SCC 549.

[xii] (1988) 4 SCC 592.

[xiii](1988) 3 SCC 410.

[xiv](1997) 1 SCC 301.

[xv] Maneka Gandhi v. U.O.I, (1978) 1 SCC 248; see also Bennett Coleman & Co. v. U.O.I, (1972) 2 SCC 788; see also I.E Newspapers (Bombay) Pvt. Ltd. v. U.O.I, (1985) 1 SCC 641; see also Arundhati Roy, In re, (2002) 3 SCC 343.

[xvi]AIR 1973 SC 87.

[xvii]Damyanti v. Union of India, AIR 1971 SC 966.

[xviii]AIR 1989 SC 1988.

[xix] (“Right to life will take within its sweep, the right to food, clothing, decent environment and reasonable accommodation to live in.”) Shantistar Builders v. Narayan, (1990) 1 SCC 520.

[xx] Article 21, Constitution of India, 1950 states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

[xxi] Kehar Singh v. U.O.I, (1989) 1 SCC 204.

[xxii] (1996) 2 SCC 549.

[xxiii](“Today human rights jurisprudence in India has a constitutional status and sweep by virtue of Article 21 so that this magna carta may well toll the knell of human bondage beyond civilized limits.”) Sunil Batra(II) v. Delhi Administration, (1980) 3 SCC 488.

[xxiv] (1989) 4 SCC 155.

[xxv] (“We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.”) AIR 1981 SC 746

[xxvi] (1993) 1 SCC 645.

[xxvii] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

[xxviii] Paschim Banga Khet Mazdoor Samity v. State of W.B., AIR 1996 SC 2426.

[xxix] Farhad K. Wadia v. Union of India, (2009) 2SCC 442.

[xxx] Sukesh Chander Khajuria v. State, AIR 1994 J&K 73.

[xxxi] State of Orissa v. Govt. of India, (2009) 5 SCC 492.

[xxxii] M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

[xxxiii] Satwant Singh v. A.P.P.,New Delhi, AIR 1967 SC 1836.

[xxxiv] Govind v. State of M.P., AIR 1975 SC 1378.

[xxxv] Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.

[xxxvi] Hussainara v. Home Secretary, Bihar, AIR 1979 SC 1360.

[xxxvii] Prem Shankar v. Delhi Administration, AIR 1980 SC 1535.

[xxxviii] T.V. Vatheswran v. State of Tamil Nadu, AIR 1983 SC 362.

[xxxix] Shantisar Builders v. Narayan Khimlal Totame, AIR 1990 SC 630.

[xl] Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 4 SCC 376; see also State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.

[xli] Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. , AIR 1983 SC 239; see also Jilubhai v. State of Gujrat, AIR 1995 SC 142.

[xlii] State of W.B v. Kailash, (1997) 2 SCC 387.

[xliii] Article 47 of the Indian Constitution, 1950 states that “The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

[xliv] See, H. Shue, Basic Rights, Affluence and US Foreign Policy, Princeton University Press, Princeton, 1996.

[xlv] Waldron, J., Rights in Conflict, 99 Ethics 503-19 (1989), 503.

[xlvi] H. Shue, Basic Rights, Affluence and US Foreign Policy, Princeton University Press, Princeton, 1996.

[xlvii] Scott, C., Reaching Beyond (Without Abandoning) the Category of “Economic, Social and Cultural Rights”, 21 Hum. Rts. Q. 633-660,(1999), 642.

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July 19, 2016

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