December 22, 2019The Intersectiontechnologypublic policyInformation Age

The right to internet access must have legal sanctity

India needs better legal procedures to ensure that the bar for denial of access is much higher.

Mint This is from The Intersection column that appears every other Monday in Mint.

Just over a decade ago, the fashionable end of the international intellectual spectrum began to claim that the right to internet” is a fundamental human right. Finland went a step further by famously legislating a right to broadband, although what it meant, in practice, was a more reasonable universal service obligation requiring all telecommunication companies to provide all residents with a line of at least 1Mbps.

A number of countries and city governments around the world then started jumping on the right to internet” bandwagon and began to offer taxpayer-funded Wi-Fi connections. In 2017, the Kerala government announced that internet access was a basic right and, this year, announced that it will spend ₹1,548 crore to build a fibre optic network to provide internet access to every household in the state. And then, last week, New Delhi became the latest city government to offer free” Wi-Fi to its residents.

In these cases, the right to internet” is being used as an intellectual wrapping to provide subsidized internet connections. Since the rights-based discourse is both fashionable and popular, it doesn’t hurt its proponents to declare internet access a fundamental right, especially if it means providing publicly financed freebies to the electorate.

This is problematic on two grounds. First, they violate contracts and represent unjustified government intervention in competitive markets. That these free Wi-Fi services unfairly undercut commercial Wi-Fi and 4G mobile services is conveniently ignored. In the series of blows that private telecom operators have received at the hands of the Indian government, this is perhaps one of the smaller ones.

The second and deeper point is that free internet access cannot be a fundamental right, any more than food or education. These are no doubt basic human needs and a civilized society must ensure that everyone has them. But they are not fundamental rights. Anything that costs someone else something cannot be. Fundamental rights are negative rights enforced against the state—the government cannot take away my fundamental right to free speech. It costs you nothing. But if internet access were to be a fundamental right, the government would have to pay for my internet connection, and that would come from the taxes you pay. Since there is no end to human needs and wants, with sufficiently passionate arguments, you can make a case for just about anything to be a fundamental right.

The casualty of this flawed conceptualization of the right to internet” is the idea that free citizens should be protected from arbitrary disconnections by the state. Even before last week’s surge in internet shutdowns in many parts of the country, in the wake of public protests against the Citizenship Amendment Bill and the National Registry of Citizens, India was already, as Asmita Bakshi’s report in Mint Lounge damningly brought home, the internet shutdown capital of the world”. India accounted for more than two-thirds of the shutdowns in 2018. A highly conservative estimate of the economic losses from 138 shutdowns between 2012-2017 comes up to around ₹22,000 crore. Given that internet penetration, dependence on electronic transactions and frequency of shutdowns have all grown since then, we are looking at economic costs that are in the vicinity of a percentage point of gross domestic product.

High as the economic costs are, the most important issue is of individual liberty. While no one denies the state its authority to maintain public order, instruments that abridge civil liberties must be used sparingly, limited in time and space and, most importantly, in exceptional circumstances. Unfortunately, political leaders and law enforcement authorities frequently use prohibitory orders as instruments of first resort. Like the imposition of prohibitory orders under Section 144 in the physical world, shutting down telephone and internet connections is frequently the first step the administration takes. This is an abuse of statutory provisions and an unconscionable abridgement of fundamental rights. In Kashmir, it has been 139 days without the internet. Even in sheer utilitarian terms, the collateral damage from cutting off telephone and internet connections even for a few hours almost always outweighs the benefits.

It is abundantly clear that the current process by which internet shutdowns are imposed not only has low thresholds and inadequate safeguards, it is insufficiently protective of the fundamental rights of citizens. When the official mouthpiece of the Communist Party of China cites the Indian government’s action to hold that shutting down the internet in a state of emergency should be standard practice for sovereign countries”, it is time to realize that we have allowed matters to drift too far. As Rahul Matthan warned in these pages earlier this year, we must implement safeguards to ensure that the internet can’t be switched on and off on a whim”.

In a more rigorous redefinition of the right to internet access, in 2016, the United Nations amended the definition of freedom of expression in its Universal Declaration of Human Rights to include the freedom to impart information and ideas through any media and regardless of frontiers”.

There are many more The Intersection columns here

So, do Indians need a new right to the internet? No, because we already have it. It is implicit in our fundamental rights. What we need are better legal procedures that ensure that the bar for denial of access is much higher and much better protected. And this need is urgent.

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