Tag: #righttointernet

Freedom of Internet and Social Media supporting Indian Democracy

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INTRODUCTION

Behind today’s Democratic Secular Republic Socialist Sovereign India lies a ton of tumultuous happenings which includes the unification of around 565 princely states and the war between two neighboring countries. The credit for the present date India goes to the nation’s freedom fighters like Sardar Vallabhbhai Patel, Jawaharlal Nehru, and Mahatma Gandhi among many others. A committee headed by B.R Ambedkar drafted the constitution and adopted the same on 26th November 1949 establishing democracy in India. Indian democracy is a government that is elected by the public of the country to regulate law and order in society and the government is answerable to the general public regarding its action. The Indian government is based on a parliamentary system i.e., the House of Representatives (Rajya Sabha) and House of People (Lok Sabha).

The democracy of India rests on four pillars— Legislature; Executive; Judiciary; and Media. In a democracy, citizens enjoy certain freedoms like professing any religion, practicing any profession, residing throughout any territory of India, forming associations, speech and expression, to assemble in any part of India subject to reasonable restriction. Similarly, internet freedom comes into play to protect one’s digital rights, right to access to information, and freedom from censorship on the internet. Indian government must uphold the rights and freedoms provided to citizens with changing times to ensure democracy in Indian society. Nowadays, Internet Democracy or Digital Democracy (E-Democracy) is used for governance which assures effective participation, equality of decision, clarity of issue, and cyber security issues. As youth believes, the internet is a primary source for any event and its easy accessibility and authenticity make it gain influence over the traditional resources. The minimal issues can be reduced by collective decision and problem-solving, resultantly helping the democracy to work efficiently and smoothly.

FREEDOM OF INTERNET

United Nations of Human Rights Council declared Freedom of the Internet as a human right in the year 2012. Especially an addition was made by the UN in the Universal Declaration of Human Rights Article 19 that everyone has a right to express his/her views on any issue going around via any social media platform disregarding any borderline among nations. Section 32 states the protection and promotion of human rights on the internet. The freedom that one enjoys offline must also be able to enjoy the same freedom online.

In the case of Faheema Shirin v. the State of Kerala,1 high court concluded that the right to the internet is a part of a fundamental right. It is covered under Article 19 as well as 21 as it constitutes an essential part of one’s life with changing times. It was argued that if one was given the fundamental right to enjoy something, one must also have enough means to fulfill its purpose too. Bansashree Gogoi v. Union of India2 reveals how an infinite number of petitions were filed in Guwahati High Court against the internet shutdown in Assam. The court opined the order to be lifted due to inconveniences faced by people in their day-to-day life.

The most recent incident of internet shutdown and mobile connectivity in Jammu and Kashmir in order to ensure security in the state also attracted a dispute. The action of the Home Department of Jammu and Kashmir was challenged by Anuradha Bhasin3 on grounds that no reasons were given while passing orders as required. Further, the order passed was based on agitation that the law and order situation would be damaged. The court believed that the state government has no right to pass any order based on its agitation regarding the maintenance of law and order. The government has pledged to be transparent and answerable to the public, therefore, making it an individual’s right to know. While concluding the case Hon’ble Supreme Court quoted that “Prohibition to the internet is a fundamental right but subjected to certain restrictions.”

The government had shut down internet services in the union territory and when resumed, only 2G services were supplied that led to a lot of hassle as most of the work was being done online due to COVID-19. The court took notice of it and asked the government to form a committee to cater to the situation that would also make regulations keeping in mind the needs of petitioners4.

Freedom House was established in the year 1941 and stationed in New York. It’s a governmental organization that aims the promotion of democracy throughout countries of the world. It issues an index showing the freedom of the internet among countries of the world. Iceland (96) topped the list whereas China (10) was at last. Speaking of India, it got a score of 49 out of 100 keeping in mind three indicators i.e., obstacles to accessing the internet, limits provided for content, and violations of user’s rights. India’s rank has been falling for the last two years and yet it has shown no improvement at all.

SOCIAL MEDIA

Social Media is a platform used by people to share their ideas, opinions, suggestions, and information about anything ensuring active participation in decision-making and other issues revolving around the interest of the general public. Social Media was formed to connect people from one person to another in two different corners of the world but with the advancement of technology, the business industry started using it as a medium to reach out to their customers.

In the present-day context, there are over 5.8 billion people around the world using internet facilities. With the existence of COVID-19, the number of users is only going to increase due to the maximum work being done online. Social media gives easy access to information, holding the reasons and answerability of leaders in check regarding issues arising in society. However, everything has its drawbacks; non-regulation of the system leads to the spread of bogus news, targeting minor castes or religions, and resultantly dampens democratic principles.  

Traditional Media and Social Media are two different sources that provide us with information about events that took place around the world. Traditional Media is about the news read in a newspaper or shown on T.V or listened to on the radio with the approval of an editor. On Social Media, the content is shared by any user of apps like YouTube, Twitter, or Facebook which he/she deems fit. Traditional Media offers one-way communication and no interaction among its users whereas new media is a two-way communication that allows the interaction between publisher and user. The internet and social media provide people with social networking and a range of opportunities that help in developing the social skills of youngsters.

SOCIAL MEDIA AND THE INTERNET ENSURE DEMOCRACY

With access to usage of the internet and platform to share ideas, opinions, and suggestions one can use his/her fundamental rights effectively and efficiently. Indian Constitution giving citizens the Right to the Internet under two different fundamental rights itself says a lot about the importance of the internet in the modern world. Article 19 provides Freedom of Speech and Expression to ensure there’s no hindrance to this right, therefore, the government must ensure the means to express the views, suggestions, and ideas must be given by the presence of social media and access to the internet as social media is an internet-based platform. Article 21 provides for the Right to Life and Personal Liberty ensuring the usage of the internet is important for one’s day-to-day life, the internet services, and their speed must meet the level so that no issues arise.

The presence of social media and the internet has two aspects related to the democracy of India— It provides assurance to the general public that their voice is being heard and government can also provide clarity of policy and reasons behind their actions. Discussion among people can easily help with problem-solving, the flow of information about elections, and assets and liabilities of candidates. It allows people to share their opinions but conflicting opinions can lead to hate comments or massive trolling. During elections, candidates may give speeches related to ethnic origin or caste, or religion for vote bank from that particular minority. To limit the spread of bogus information, social media platforms must be held liable for the contents posted on their sites and the government should also form new laws keeping in mind the problems that arise with the usage of the internet and social media.

CONCLUSION

Social media and usage of the internet are important to one’s life but excess of anything is harmful. Therefore, the freedom given must be with reasonable restrictions. Censorship is one of the main solutions to the problem of the spread of bogus news, anything that violates principles mentioned in the preamble, and many other issues. Yet, people are still divided on the issue of censorship. Some people support censorship as it restricts unlawful behavior, censoring influential content can help in the prevention of publicizing content that may be offensive. Whereas censoring content may also violate privacy, it may restrict the content that other people may not deem offensive or the uncensored content may be inappropriate. It may lead to a loss of originality in one’s content.

CITATIONS

1 WP (C) No. 19716 of 2019 (L).

2  2019 SCC OnLine Gau 5584.

3 Anuradha Bhasin v Union of India, AIR 2020 SC 1308.

4 Foundation for Media Professionals v. Union territory of Jammu and Kashmir (2020) SCC online SC 453.

This article is written by Simran Gulia, a BA.LLB student from Maharaja Agrasen Institute of Management Studies.

Internet shutdown and how it violates Right to Freedom of expression

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The present article is written by Mudit Jain, pursuing B.B.A.LL.B.(H) from Indore Institute of Law.

Introduction

The internet, which has become an essential location and method of exercising an individual’s freedom and expression in the twenty-first century, has become one of the most vital elements of an average person’s everyday existence. It gives a fantastic and very accessible platform for the global exchange of ideas and knowledge without regard for time or place. It has grown so necessary that national and international organizations recognize it as a human right. However, in recent years, it has come under the severe and indiscriminate supervision of governments from all over the world. It is increasingly being targeted by state agencies and governments all around the world, and the number of internet shutdowns reported each year is growing.

According to the Software Freedom Law Centre (SFLC), a legal community that has been tracking internet shutdowns since 2012, 106 internet shutdowns were recorded in India in 2019. These frequent Internet shutdowns are a significant blow to citizens’ fundamental rights. Article 19 of the Indian Constitution guarantees us the right to free expression, which is severely infringed by internet shutdowns. The appropriate knowledge of Internet Shutdowns is required in order to have a better grasp of its influence on Article 19(1).

Internet shutdowns are when the government sets a restriction and prohibits the general population from accessing the internet by blocking the servers. These shutdowns can be implemented over the entire country as well as on a local level. In exceptional situations, it can even be extended indefinitely. However, access to the Internet has recently gained the status of a fundamental right, and such arbitrary internet shutdowns, in some way or another, openly violate the basic rights as well as numerous human rights of individuals who fall under its purview. They limit our autonomy, deny our free will, and undercut our freedom of speech.

Until 2017, several forms of Internet shutdowns were authorized under Section 144 of the Criminal Procedure Code of 1973. Section 7 of the Indian Telegraph Act was modified in 2017, resulting in the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules, 2017. These restrictions were first welcomed with the expectation of fewer shutdowns, but to the total astonishment of Indian residents, the shutdowns grew. It is still being used arbitrarily by the federal and state governments to suppress dissent, infringing on the right to freedom of speech and expression entrenched in Article 19(1) of the Indian Constitution.

Right to Internet: A Fundamental Right

There is no doubt that the freedom to disseminate information to the general public is protected by Article 19 of the Constitution (1). The Supreme Court and the High Courts have often emphasized the internet’s inclusion among the media of free speech and expression, as well as the duty of state and government to encourage such freedom. To preserve the democratic values of the constitution, freedom of speech and expression via the internet is critical, and any indiscriminate shutting down of the internet in order to stifle opposition against the state violates these objectives. The vast variety of information circulation and the enormous effect that the internet has on individuals cannot be used to justify restricting its access at the whims of government. 

The use of Section 144 of the CrPC and the Temporary Suspension of Telecom Services Rules, 2017 has resulted in an increase in the number of internet shutdowns in various Indian states during the last several years. There has been harsh condemnation of such government arbitrariness, which serves as ample evidence that the Right to Freedom of Expression has recently come under scrutiny. In a country with over half a billion internet users, arbitrary measures restricting internet access not only cause discontent among ordinary citizens and worsen the situation for which such measures are implemented, but also have a negative impact on various aspects of trade and commerce in the country. In today’s digital era, a considerable number of trade and commercial activities, including stock market trading, online shopping platforms, and electronic payment methods, require internet access, and Internet restrictions result in significant losses for those involved as well as the economy whole.

According to research by the Indian Council for Research on International Economic Relations, the Indian economy lost more than $3.04 billion between 2012 and 2017 as a result of internet outages. With the number of shutdowns tripling in 2018 and 2019, there is growing dissent among the people affected by their infringement of freedom. Internet shutdowns, in addition to violating Article 19, also infringe the citizen’s right to life under Article 21 and the citizen’s right to information under Article 19. (1).

Need for Internet Shutdowns:

However, Article 19 (1) does not grant a person limitless access to the internet for the sake of freedom of expression. Such freedom of speech and expression is frequently utilized by dishonest and devious individuals to disseminate misleading news and propaganda. In such a situation, the installation of such severe limitations as internet shutdowns becomes inevitable. Article 19 allows for the restriction of a type of communication that counts as equal to “incitement”. Article 19 (2) allows for the imposition of reasonable restrictions on the freedom of speech and expression guaranteed by Article 19 (1), and this also applies to its exercise on the internet for the sake of social order and stability.

In some extraordinary circumstances, adopting extreme steps for the sake of people’s safety becomes the necessity of the hour. The internet, as a method of expression, may also be utilized for hate speech, further escalating the issue. Whether it’s the Delhi Communal Riots or terrorist actions in Jammu and Kashmir, the internet is a key source of misleading news and inflammatory messages. In the guise of Freedom of Expression under Article 19, the situation might deteriorate and lead to riots, necessitating limits on access to it.

To qualify as reasonable, the government’s limitation of internet shutdown under Article 19 (1) must qualify as an urgent threat under Article 19 (2), as well as pass the three-pronged cumulative test of transparency, legitimacy, and the twin tests of necessity and proportionality. Thus, speech and expression that supports violent and destabilizing actions and endangers state security via the internet are not protected under Article 19(1).

Internet Shutdown and Court Judgments:

The Supreme Court, as well as different High Courts, have expressed varying views on the validity of the Right to the Internet as a Fundamental Right of Citizens. The Kerala High Court held in Faheema Sharin R.K. V. State of Kerala case, where a student was expelled from the hostel simply because she protested against the hostel’s rule that prohibited the use of the internet and mobile phones, that the right to the internet is a fundamental right under Articles 19 and 21 of the constitution and thus cannot be violated arbitrarily. However, in the recent CAA-NRC demonstrations, the Delhi Police ordered the internet to be taken down in various places around the city, and the Delhi High Court dismissed all pleas against it and upheld it. Despite the fact that the protests in Assam became violent, and the Guwahati High Court, In Bansashree Gogoi v. Union of India, the court directed the authorities to quickly restore internet services while also taking reasonable precautions to limit the spread of provocative information over the internet.

On January 10, 2020, a three-judge panel of the Supreme Court issued a historic ruling in the matter of Anuradha Bhasin v. Union of India, establishing the right to the internet under Article 19. After hearing the case involving the internet shutdown in Jammu and Kashmir, the Supreme Court ruled that the right to free speech and expression, as well as the ability to carry on any profession or commerce over the internet, is constitutionally protected under Article 19. Any limitation, whether by internet shutdown or otherwise, must be in accordance with Articles 19 (2) and 19 (6) of the Indian Constitution. The court issued the following instructions in order to evaluate the legality of Internet shutdowns under Article 19:

  1. Proportionality Test: The Supreme Court ruled that before using such drastic measures, the relevant authorities must consider whether the action is proportional to the goal to be achieved. The government should take the least intrusive action possible.
  2. Order Publication: They also requested that the relevant authorities post any orders issued for the suspension of the internet, together with a full explanation of why such a shutdown was necessary, in order to maintain transparency.
  3. Only in extreme instances: The government can issue such directives only in extreme conditions and in cases of urgency.

As a result, the court recognized the critical importance of this problem and issued the above-mentioned recommendations to strike a balance between the right to freedom and the government’s urgency. These tests and procedures must be implemented by the government in order for their activities to be justified and in the best interests of citizens. The arbitrariness with which internet shutdowns are conducted and enforced has already caused significant tension between the state and its inhabitants, and in order to have a stable and peaceful coexistence, the state must demonstrate legitimacy in its actions and guarantee that there is no arbitrariness.

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