This article is written by Govind Khandelwal, a student in 2nd year of B.A., LL.B studying at Lovely Professional University, Phagwara. In this article, the Right to the internet and some other aspects of the internet are depicted under freedom of speech and expression.
The right to the internet promotes two parts: the positive and negative aspects of the right to internet access and the right to communicate and express oneself online. The right to the internet is supported by a variety of philosophical and theoretical difficulties. What place does the right to the internet have in our legal system, then, is an important subject that needs to be addressed? Whether it is a privilege enjoyed just by citizens or by all people? If it is interpreted in the first way, it implies that the right is just statutory, but if it is interpreted in a second way, it implies that the right is a type of human right. There is also the issue of whether a right is natural or fundamental.
Furthermore, the State is required to give its citizens meaningful access to this right if it is given the status of a positive right, which it is. The breadth of court and intervention in recognizing the right to the internet, in both its negative and positive aspects, is the subject of this essay.
Table of Contents
Right to the internet under article 19(1)(a) and 19(1)(g)
The Hon’ble Supreme Court concluded in Anuradha Bhasin v. Union of India[1] that the rights to freedom of speech and expression and the right to practice any profession or to conduct any employment, trade, or business through the internet under Articles 19(1)(a)[2] and 19(1)(g)[3] are protected by the constitution. As a result, it has been acknowledged that there is a restricted negative right to the internet under Articles 19(2)[4] and 19(6)[5].
The K.S. Puttaswamy v. Union of India[6] decision outlines the proportionality test, which must be met for any restrictions to the right to freedom of speech and expression and the right to practice any profession or conduct any occupation, trade, or business over the internet if they are imposed by the state under Article 19.
- A law must be passed to achieve a legitimate state goal in order for it to violate basic rights.
- Measures that limit or restrict the exercise of fundamental rights and liberties must be justified by showing a rational relationship between the circumstances at hand, the goal being pursued, and the proposed course of action.
- The actions taken must be required to accomplish the goal and must not go beyond what is required to do so without violating any rights.
- In addition to being essential to safeguard them, restrictions must also serve justifiable goals; and
- The State is required to offer adequate procedural protections.
The court in Anuradha Bhasin v. Union of India[7] left the issue of internet access, or the favorable element of the Right to the Internet, open to be decided in an appropriate lis since no pleadings were made in this regard. This raises the question of whether and how judicial involvement can be used in the future to assess the right to access the internet inside our legal system.
Right to internet access
The argument for the acknowledgement of the right to meaningful access, which has drawn significant attention from scholars, can be divided roughly into two categories. The first is that if the State decides to define laws with reference to market circumstances and resource distribution with a view to facilitating equal access, the right to meaningful internet access can be put in place. This point of view derives from Constitutional Articles 19(1)(a) and 21. The second calls for the State to recognize the right to the internet as a statutorily protected, unique human right arising from pre-existing international human rights commitments.
Right to the internet and non-state actors
The regulation of speech and expression by non-State actors, such as social media platforms, is a crucial component of the right to the internet. Does a citizen have legal recourse if a non-State actor, such as Twitter, violates his rights under Article 19(1)(a)? This issue comes up since Senior Advocate Sanjay Hegde has filed a complaint in the Delhi High Court under Article 226 of the Constitution challenging Twitter’s decision to permanently erase his account. According to a review of case laws, Indian courts have never regarded a non-State actor as the State only because they carry out a public role. Two criteria are used by the courts to determine whether a private actor is a State:
- The non-State actor’s role or service must be strongly tied to the state’s sovereign functions; or
- The government must exercise “functional, administrative, and financial control” over the non-State actor.
It is improbable that a citizen could have his rights enforced against private social media platforms because they categorically fail the second condition. By giving people a place to exercise their right to free speech, social media platforms unquestionably serve a vital public purpose.
Conclusion
According to the socio-democratic theory of free speech’s more comprehensive vision, the state must expressly recognize the right to access the internet. In addition to publicly recognizing the right, the government must act quickly to regulate the market and establish guidelines for meaningful internet access. The State’s generosity aimed at enhancing internet access will also depend on whether it decides to implement a number of initiatives and programs like Digital India and similar ones, or whether it decides to control the data connectivity market by transferring the responsibility to non-state actors (which could once again be challenged under Article 19(1)(g).
As a result, we can observe that India’s right to internet access is developing quickly. It is necessary and the most appropriate time for this right to be recognized by the State for the elevation of the masses as a social measure in these challenging times of the pandemic when education and most of our daily activities depend greatly on the connection to the internet.
Personal Opinion and Suggestions
According to me, there should be these reasonable restrictions. It is necessary because there is the possibility of spreading wrong information across the internet and fake news also which sometimes causes communal riots also. If these restrictions were removed then anybody can say anything to a big audience that might be a danger to the country or spread riots on the basis of religion, community, etc. There is also eighteen-plus content on the internet which can cause a bad impact on the mental health of children and many more cases could happen. So according to me, it is correct to have these reasonable restrictions.
References
- Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
- S Puttaswamy v. Union of India(5.J) (2019) 1 SCC 1
- ipleaders.in
- legalservicesindia.com
- indiatoday.in
- thewire.in
[1] Anuradha Bhasin v. Union of India, AIR 2020 SC 1308[1][1]s
[2] INDIA CONST. art.19(1)(a)
[3] INDIA CONST. art.19(1)(g)
[4] INDIA CONST. art.19(2)
[5] INDIA CONST. art.19(6)
[6] K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, AIR 2017 SC 4161
[7] SUPRA NOTE {2}