Internet- A Fundamental Right

In a recent landmark judgment, the Hon'ble Supreme Court declared internet access as a fundamental right. This has implications for citizens' rights in India.

Background 

The Internet has become the primary medium of people to express themselves and share ideas.  For democracy and human rights activists, it is a lifeline to mobilize and advocate for political, social and economic reforms. 

Authoritarian states, fearing the power of the internet, are resorting to subtle, and at times not-so-subtle, means to filter, monitor and otherwise stifle or manipulate the openness of the internet. Democratic states to have imposed restrictions in response to potential legal, economic and security challenges.

'Internet shutdown’ can be defined as an intentional act to disrupt the internet or electronic communications to make it inaccessible or unusable for a specific population or within a location, to exert control over the flow of information.

When the provisions of Article 370 of the constitution were revoked in J&K, a total communication lockdown was imposed on the entire state to prevent disruption of the law and order situation, which included the internet, mobiles, and landlines. Soon after the lockdown, a group of petitions challenging the restrictions was filed. The apex court order has come primarily from public interest litigation (PIL) by the editor of the Valley's prominent English daily Kashmir Times.  

The Hon'ble court order reads, "We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality. "  

The Central government and "competent authorities" were given a week to review their clampdown.

Analysis 

On the pretext of combating 'fake news', governments around the world are tightening control over citizen's data to suppress dissent thus eroding the foundations of democracy.

A UK based research firm, Top10 VPN, estimates that internet shutdowns in 2019 have cost the global economy over the US $8 billion. In the case of India (4196 Hrs-$1.3 billion), the estimated loss was the third highest after Iraq (209 Hrs-$ 2.3 billion) and Sudan (864 Hrs-$1.8 billion). 

Out of the 381 shutdowns ordered in India between 2012 to 2019, 236 were preventing ie in anticipation of law and order problem and 146 were reactive to contain ongoing law and order breakdowns. 93 of the shutdowns lasted for less than 24 hours, 74 were for 24-72 hours and 41 were for over 72 hours. The duration of the balance 208 shutdowns is not known.

These findings are based on the assessment of internet blackouts in Arunachal Pradesh, Assam, Jammu and Kashmir, Meghalaya, Rajasthan, Tripura, and Uttar Pradesh. As per India Today Data Intelligence unit, the government has cited terror activities and communal tensions as the main reasons for the suspension of services. 

The Supreme Court verdict has laid down a framework of how the internet can be suspended by the government and under what circumstances is the shutdown justified. The court has stated that the government cannot be in the exercise of arbitrary powers to restrict fundamental rights. The Court has stated that the 2017 Temporary suspension rules are the only procedure to be followed to suspend internet services. That too only if there is a public emergency or in the interest of public safety.  

CounterPoint 

According to Jan Rydza of Global Digital Policy Incubator, Stanford University 2015/16, shutdowns are found to be much more strongly associated with increases in violent collective action than with non-violent mobilization. However, a breakdown of the structure of individual protest events reveals weak effects for both organized and 'leaderless' collective action during a shutdown. On the other hand, the co-occurrence of state violence with a shutdown is found to encourage non-violent action. The findings imply that information blackouts compel participants in collective action in India to substitute non-violent tactics for violent ones that are less reliant on effective communication and coordination. At the same time, while they may sometimes disrupt the structured and non-violent protest, this effect is highly inconsistent.

The theory of disconnective action, outlined by  Rydzak (2019), predicts that the incidence of protest will increase immediately following a blackout and begin to decline once the blackout turns into a digital siege or sustained shutdown. However, digital sieges are Pyrrhic victories for the government, as the economic costs of the shutdown are typically very high. Thus, shutdowns are ineffective in the short run and economically devastating in the long run 

Assessment

  • Ensuring freedom of the internet against the rise of digital authoritarianism is fundamental for preserving democracy.  This technology empowers the individual to make their own considered choices-social, economic and political.  There should not be any coercion or manipulation on this account
  • Since 2016, there is a UN Human Rights Council non-binding resolution against intentional disruption of internet access by the state. The resolution emphasizes "the same rights people have offline must also be protected online". The Apex Court verdict mirrors the same and will hopefully preserve the freedom of speech and expression as guaranteed by the constitution.
  • While the concerns for public safety and public order are well accepted, democracies have to follow the due judicial process and oversight while curbing these fundamental rights. 
  • The economic costs of shutting down the internet for uncertain lengths of time has also to be taken into account when digitization of the whole economy is the order of the day.

 

Image courtesy:airwavesinternet.com

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