This article is written by Prithiviraj Dey who is pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

The right to internet espouses two facets of the right to internet access and the right to speak and express oneself over the internet, which are the positive negative and forms respectively. There is a host of conceptual and theoretical issues that underpin the right to internet. The pertinent question that arises here is: what is the locus of the right to internet within our legal system? Whether it is a right held only by citizens only or by people universally? If it is taken in the former sense, then it suggests the right is merely statutory and if understood in the latter, a kind of human right. There is the question as to the nature of the right: natural or fundamental.

Further, if it is accorded the status of a positive right, then the State comes under an obligation to provide its citizens with meaningful access to this right. In this article, we are looking at the scope of judicial and intervention in recognizing the right to the internet, both in its negative and positive forms. 

Right to internet under 19(1)(a) and 19(1)(g)

The right to freedom of speech and expression and right to practise any profession, or to carry on any occupation, trade or business over the medium of internet under Articles 19(1)(a) and 19(1)(g) has been held to be constitutionally protected by the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India. Thus, a negative right to the internet subject to restrictions under Articles 19(2) and 19(6) has been recognized. 

Any restriction to the right to freedom of speech and expression and the right to practise any profession, or to carry on any occupation, trade or business over the medium of internet, if imposed by the state, under Article 19 have to pass muster of the proportionality test which as enumerated by the decision in K.S Puttaswamy v. Union of India that: 

1. A law interfering with fundamental rights must be in pursuance of a legitimate State aim;
2. The justification for rights infringing measures that interfere with or limit the exercise of fundamental rights and liberties must be based on the existence of a rational connection between those measures, the situation in fact and the object sought to be achieved;
3. The measures must be necessary to achieve the object and must not infringe rights to an extent greater than is necessary to fulfil the aim;
4. Restrictions must not only serve legitimate purposes; they must also be necessary to protect them; and 
5. The State must provide sufficient procedural safeguards. 

The question of access to the internet in Anuradha Bhasin v. Union of India, or the positive aspect of the Right to Internet, was left open to be determined in an appropriate lis by the court since the pleadings in this regard were not made. This takes us to the question whether and how the right to access the internet can be determined within our legal framework through judicial intervention in the future. 

Right to internet access

There are broadly two ideas that make a case for the recognition of the right to meaningful access which has received much attention from scholars. The first being that the right to meaningful internet access can be brought in place if the State chooses to frame regulations with regard to market conditions and distribution of resources with a view to enable equitable access. This view has roots in Article 19(1)(a) and 21 of the Constitution. The second advocates that the right to internet be recognized by the State in the form of a statutory, sui generis right to internet access from existing international human rights obligations. 

Right to internet under Article 21

In its recent judgment in Faheema Shirin v. State of Kerala, the High court has recognized that mobile phones and internet access through it are part and parcel of the day to day life. The court looked at resolutions adopted by the United Nations Human Rights Council and the General Assembly which unequivocally point to the fact that how internet access plays a key role in accessing information and its close link to education and knowledge. The court took the view that the right to be able to access the internet has been read into the fundamental right to life and liberty, as well as privacy under Article 21. The court added that it constitutes an essential part of the infrastructure of freedom of speech and expression. 

As opposed to this is the argument of one of the fathers of the internet, Mr. Vinton G. Cerf. He argued that while the internet is very important, however, it cannot be elevated to the status of a human right. Technology, according to him, is an enabler of rights and not a right in and of itself. 

The meaningful exercise of the right to freedom of speech and expression over the medium of internet is dependent, invariably and inextricably, upon the access to the available infrastructure. Infrastructure in turn depends upon social and economic factors such as the distribution of resources; the policies of the State and its intervention in the nature of regulation of resources. 

If I have the freedom to speak and express myself, then I must also have the necessary means and avenues to echo the same. An economic and social precondition, lurking in the backdrop, to the exercise of the right under Article 19(1)(a) assumes significance here. The role of the State in enabling this precondition has been the subject of much debate in our country and more so in the United States under their First Amendment jurisprudence.

Since the Hon’ble Supreme Court has recognized the right to freedom of speech and expression over the medium of internet, we may peruse its various decisions to see whether the right to internet access can be recognized by the judiciary. The tectonic and conflicting shifts in the jurisprudence of the Hon’ble Apex Court under Articles 19(1)(a) and 19(2) will help us understand this aspect. 

The libertarian theory of free speech

The libertarian conception takes the existing distribution of income and resources as a given, and the consequent unequal speaking power that arises is left unaddressed. It prohibits any State intervention designed to remedy the situation. This can be understood better if we look at the decision of the American Supreme Court, when it first struck down campaign finance regulations, in Buckley v. Valeo, wherein it held, “the concept that government may restrict the speech of some in order to enhance the relative voice of others is wholly foreign to the First Amendment. 

This theory reflects the libertarian thought which restricts the role of the State and proscribes any government-imposed regulation on what people can do within the existing structure of these laws. We find this strain of thought in some of our decisions of the Hon’ble Supreme Court as well. 

In Sakal Papers v. Union of India, the government issued regulations dealing with price-per-page. It essentially related the price of a newspaper with its size. Owing to the regulation, the newspaper agency had to maintain lower prices which meant that the newspapers would have to reduce their size and consequentially the content too would have to be reduced and vice versa. The newspapers came forth with Article 19(1)(a) challenge.

The government responded to the challenge by terming this measure as anti-monopolistic. Further, their aim was to ensure the proliferation of aspiring, new newspapers. By having the already established newspapers to keep their prices low meant doing away with the blockage in the entry of other newspapers into the market. The Court held this measure as one made in ‘public interest’. Yet, the ground of ‘public interest’ did not afford protection Article 19(2), the Court held that this regulation was unconstitutional and upheld the claims of the newspapers.

The ramification of this decision is that if an individual were to establish a newspaper, the prevailing, expensive economic conditions in the market made it impossible for him to do so. Thus, the aspiring newspapers in this case suffered from an inability to meaningfully exercise their freedom of expression. But the freedom was not extinguished and therefore it still did not infringe upon their freedom of speech or expression. Article 19(1)(a) affords protection to the freedom of speech and expression, and not effective or meaningful exercise of the freedom of speech and expression, hence there was no constitutional violation. 

Bennett Coleman v. Union of India was a case in which a challenge to the Newsprint Order of 1962, and the Newsprint Policy of 1972 was made in the court. The Newsprint Order restricted the conditions under which newsprint could be imported and Newsprint Policy prohibited ‘common ownership units’, limited the number of pages to ten and permitted a 20 per cent increase in page level to newspapers that had fewer than ten pages.

The Policy was defended by the State on grounds such as prevention of monopolies and promotion of the growth of small newspapers. The majority struck down the Policy because it had an effect on circulation and according to them it amounted to a restraint upon the freedom of speech, which was not saved by any of the grounds under Article 19(2). The intervention by the State into the existing market in the form of price-and-page controls is deemed to affect freedom. The test was whether the ‘direct effect’ of a law is to abridge the freedom of speech. 

The above two decisions show us an inclination of the Supreme Court towards the libertarian notion of free speech.

The socio-democratic theory of free speech

It may at times become incumbent upon the State to act to further the robustness of public discourse and allocate public resources (hand out megaphones; figuratively) to those whose voices would need to be heard. It may even have to silence the voices of some in order to hear the voices of the others. This is exactly in contradiction to the libertarian view.

The Supreme Court’s decision in Express Newspapers v. Union of India presents an interesting contrast to Sakal Newspapers and Bennett Coleman. Express Newspapers involved a challenge to a statute that determined the minimum wage to be paid to all working journalists. It was argued that the fixed minimum wage had been too high so as to drive newspapers out of business and that it was an unreasonable restriction in terms of Article 19. In Express Newspapers, however, the Court found that there was no abridgement in the freedom of speech. The regulation was upheld because according to the Court, the intention or ‘proximate effect’ of the minimum wage legislation was rather to improve the economic position of journalists. The argument that the eventual result would be a fall in circulation was dismissed as incidental, remote and indirect.

Alexander Meiklejohn said with respect to the First Amendment of the Constitution of U.S.A. that it does not forbid the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech. 

Justice Mathew’s celebrated dissent in Bennett Coleman v. Union of India is based upon the Mieklejohnian difference between abridging speech, and abridging the freedom of speech. In Bennett Coleman, the scarcity of newsprint depended as much upon governmental action so did the restriction on the number of pages a newspaper could have. The freedom enumerated in Article 19(1)(a) is centered on the individual and yet Justice Mathew gives us a larger, community oriented goal that society needs to achieve. He observes that a democracy has to be thriving and meaningful. It is only when there exists multiplicity, diversity and variety of ideas and viewpoints that we achieve the ideal of an informed society.

Justice Mathew subscribes to the view that for the larger community to have access to infrastructure to exercise the freedom of speech, it becomes necessary that the government regulates such access and market conditions to ensure that resources are not concentrated in a few hands. Since the Newsprint Policy, in its anti-monopolistic objectives aimed to put in place a wide range of ideas in the public domain, Justice Mathew held it to be constitutionally valid.He offers us a much more nuanced and substantive version inbuilt in Article 19(1)(a).

The freedom of speech as we understand consists of both “speech” and “non-speech” elements. A sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on freedom of speech. The Court further observed that a Government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial Governmental interest.

Lending credence to what Justice Holmes espoused in his First Amendment decisions, Justice Mathew goes on to enumerate four values required to be achieved by protection of free speech. Free expression is necessary:

• for individual fulfilment, 
• for attainment of truth, 
• for participation by members of the society in political or social decision-making, and
• for maintaining the balance between stability and change in society.

Justice Mathew takes note of the Holmesian First Amendment view in Abrams v. United States: “that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of thought to get itself accepted in the competition of the market. That at any rate is the theory of our Constitution.”

“What is essential” according to Meiklejohn, “is not that everyone shall speak, but that everything worth saying shall be said”. 

Justice Mathew provides us with an interpretation of Article 19(1)(a) which focuses on the idea that restraining the hand of the government proves useless in assuring free speech, if a restraint on access is effectively secured by private groups. A constitutional prohibition against Governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion.

The State is required to take into account the differing economic and social conditions of its citizens and how those differences hinder equal access to the exercise of their basic rights. Justice Mathew reminds us of the constitutional obligation of the State to enable every individual achieve substantive equality. He invokes the Directive Principles of State Policy, though unenforceable, to argue that under Article 39(b)the Constitution furnishes for distribution of the material resources of the community to subserve the common good.

In Union of India v. Motion Picture Association the petitioners put forth a challenge to government notifications and rules, and provisions of the Cinematograph Act. This enabled the government to have the films exhibited by the licensee and additionally other films which the licensee was exhibiting. The Court did not find any merit in the challenge. It held that under Article 19(1)(a) that this amounted to promoting dissemination of ideas, information and knowledge to the masses.

In this case, the impugned provisions were meant to further free speech and expression and it did not result in curtailment of the same. The issue was not framed as whether the restriction was based on one of the grounds of justification under Article 19(2). Article 19(1)(a) was looked at from the vantage point of a social good than understanding it as an individual right.

In the case of LIC v. Manubhai D. Shah, the respondent had published a paper wherein he highlighted certain issues related to LIC’s insurance schemes. An LIC employee in turn published a response in a newspaper to which the respondent countered with a rejoinder. The LIC employee’s write up was at once published in LIC’s in-house magazine as well, but when the respondent requested that his rejoinder to be published there, it was rejected. The Court held that the LIC’s stance was unfair and unreasonable. The court invoked the doctrine of fairness (which has evolved in the United States) which demands that both viewpoints ought to be placed before the readers. The Court in this case lent credence to the larger, community goal of ensuring that the public must have knowledge of a balanced account of contentious issues. 

Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal dealt with the Indian Telegraph Act which vested in the government a monopoly over maintaining the infrastructure for airwaves. The government did not permit the Cricket Association of Bengal to telecast certain cricket matches. The Board came up with the argument that this was a violation of its rights under Article 19(1)(a) right to broadcast, as well as the viewers’ 19(1)(a) right to watch. The government on the other hand argued that airwaves being a scarce resource, it was its prerogative to selectively distribute the airwave frequencies. This argument was not favoured by the majority and that to own a frequency for the purposes of broadcasting was then a costly affair. When there are surplus or unlimited frequencies, it is only the affluent few who would be in a position to own them and use it to suit it to their own interest.

A lurking danger to the freedom of speech and expression of the have-nots by denying them access to truthful information on all sides of an issue, necessary to form a considered opinion on any subject also comes to the fore. The doctrine of fairness has evolved in the U.S. in the context of the private broadcasters licensed to share the limited frequencies with the central agency like the FCC to regulate the programming to put an anti-monopolistic regime at place. Hence, the importance of an independent body like the Press Council of India was felt in this case, which would be entrusted with fair and not selective distribution of airwave frequencies. The court, in this case, favoured an equitable distribution representative of all sections of society. A closer perusal of the judgment shows that the infrastructure of speech is closely intertwined with the freedom of speech. 

These are some decisions of the Supreme Court that advocate the socio-democratic theory of free speech. Unregulated marketplaces do not offer any safeguards against a monopoly and concentration of resources. The market is an instrument and not an end in itself which is used to bring about a diversity of ideas and opinions in the public domain through intervention of regulations. Thus, if the State in the future chooses to regulate the market and take anti-monopolistic measures to ensure greater access of the masses to the internet as opposed to concentration in the hands of a few it may do so. 

Right to internet and non-state actors

Another important aspect of the Right to Internet is the regulation of speech and expression by non-State actors such as social media platforms. Does a citizen when a non-State actor like Twitter infringe his right under Article 19(1)(a) have the remedy to enforce it in a court of law? The recent case of Senior Advocate Sanjay Hegde challenging Twitter’s decision to delete his account permanently before the Delhi High Court, under Article 226 of the Constitution takes us to this question. A perusal of case laws reveals that Indian courts have not held any non-State actor as State just because they perform a public function. The two tests used by the courts to hold a private actor as State are:

• The function or service provided by the non-State actor must be closely related to the sovereign functions of state; or
• The non-State actor should be “functionally, administratively and financially” controlled by the government.

Since, private social media platforms clearly fail the second test, it is unlikely that a citizen could have his rights enforced against them. No doubt, social media platforms perform an important public function by providing a platform for individuals to exercise their free speech right.

Conclusion

Going by the more substantive vision that the socio-democratic theory of free speech espouses, the right to internet needs to be recognized expressly by the State. Concomitant to express recognition of the right, there is a pressing need for the State to intervene and regulate the market and lay down the policy with regard to meaningful access to internet. The State largesse aimed at improving the conditions of internet access further depends on whether the State chooses to roll out a number of schemes and programmes such as Digital India and the like in this regard, or whether it chooses to regulate the market of data connectivity and by passing on the obligation to the non-state actors (which might again be subject to an Article 19(1)(g) challenge).

Therefore, we see that the right to access the internet in India is making strides at a great pace. In these trying times of the pandemic when education and most of our day to day activities are hugely dependent on the access to internet, it becomes pertinent and the most opportune moment for this right to be recognized by the State for the upliftment of the masses as a social measure.  

References

• Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
• K.S Puttaswamy v. Union of India(5.J) (2019) 1 SCC 1
• Faheema Shirin v. State of Kerala, 2019 SCC OnLine Ker 2976 : (2019) 4 KLJ 634 : AIR 2020 Ker 35 : (2019) 4 KLT 301
• Vinton G. Cerf, “Internet Access is not a Human Right”, The New York Times (4-1-2012).
• Buckley v. Valeo, 424 U.S. 1 (1976)
• Sakal Papers v. Union of India, (1962) 3 SCR 642
• Express Newspapers v. Union of India, 1959 SCR 12
• Bennett Coleman v. Union of India, (1972) 2 SCC 788
• Abrams v. United States, 250 U.S 616
• Union of India v. Motion Pictures Association, (1999) 3 SCR 875
• LIC v. Manubhai D Shah, (1992) 3 SCR 595
• Secy, Ministry of Information and Broadcasting v. Cricket Association of West Bengal, (1995) 2 SCC 161
• Gautam Bhatia, Offend, Shock or Disturb, Oxford University Press
• Kartik Chawla, Right to Internet Access – A Constitutional Argument, 7 INDIAN J. Const. L. 57 (2017).
• Anamika Kundu & Anshul R. Dalima, A Case for Recognition of the Right to Internet Access in the Age of Information, 11 J. INDIAN L. & Soc’y XIII (2020).

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