The internet is the most democratic of all mass media. Today, there are more than 570 million active internet users in India, making it the second largest online market in the world. A 2019 report by the data consulting firm Kantar projects that this number may rise to 900 million by 2025.
While there has historically been a significant rural-urban divide in internet access, this is changing. The Kantar report notes that even before COVID-19, internet penetration had increased by 45 percent in rural India as opposed to 11 percent in urban India.
An IAMAI-Nielsen report titled India Internet 2019 also observes that rural India surpassed urban India in terms of active user count for the first time in 2019. Affordable mobile technology and cheap data is likely to accelerate internet penetration in the country even further.
Recognising the vital role played by the internet in today’s society, courts in India have attempted to locate the right to internet access within our constitutional framework.
In Faheema Shirin v State of Kerala (2019), the Kerala High Court cited a 2018 Declaration by the UN Human Rights Council and held that the right to internet access is a facet of the right to life and the right to privacy under Article 21 of the Constitution. In Anuradha Bhasin v Union of India (2019), the Supreme Court stopped short of declaring the right to internet access a fundamental right.
However, it acknowledged that internet access is integral to the right to freedom of speech and expression contained in Article 19(1)(a) of the Constitution. It added that any restriction on internet access must pass the test of proportionality, and suggested the evolution of a rules-based mechanism to govern the internet.
Like Water, Internet Flowing Into Farmlands Improve Agriculture
The significance of these judicial pronouncements can be understood by examining the impact of internet penetration at the grassroots level. A web platform called Kisan Sanchar enabled an enterprise in Ambala to reach out to over 11.5 lakh farmers in all regional languages to provide authentic and actionable information on agriculture.
A farmer phone service provides farmers in eight states with expert advice on agriculture. Due to this intervention, farmers have experienced an increased crop yield at lower input costs, says Kamal Jeet, the founder of ‘Kisan Sanchar’.
In farming, just like the flow of water is essential in fields for irrigation, the flow of internet has also emerged as an essential service to help improve crop yields and equip farming communities with better information.
The Digital Empowerment Foundation (DEF) is an NGO that uses digital tools in order to provide marginalised communities with access to information and knowledge. The Chanderi Weavers’ ICT Resource Centre set up by DEF has enabled the members of this community to triple their income and revenue.
There are examples galore but more importantly, what they show is how the internet can be used to facilitate information flows to a community and contribute to its empowerment. Ensuring internet access for everyone is, therefore, crucial to the country’s progress.
Internet Shutdowns Raise Serious Questions of Governance
However, in recent times, measures such as internet shutdowns and website bans have adversely impacted the right to internet access.
According to the Internet Shutdown Tracker maintained by the Software Freedom Law Centre (SFLC.in), there were three internet shutdowns across the country in 2012. By 2019, this number had jumped up to 106.
After the draft Environmental Impact Assessment (EIA) Notification 2020 was released in July, three environmental advocacy groups – Let India Breathe (LIB), FridaysForFuture (FFF) and There is No Earth B – claimed that their websites had been rendered inaccessible without any reasons being provided for the same. These instances raise important questions for internet governance in India.
Currently, the central government has the power to block public access to online information under Section 69A of the IT Act, 2000. This power can be used if the information concerned threatens India’s sovereignty and integrity, defence, friendly relations with foreign countries and public order.
The procedure to be followed for blocking has been laid down under the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. Under these Rules, a blocking order can be made by the designated officer pursuant to a complaint by a person or a court order.
Rule 9 contains an emergency provision which allows the IT Secretary to pass an interim blocking order at the designated officer’s recommendation. Any interim order must be reviewed by the committee chaired by the designated officer within 48 hours.
There are several problems with the Rules. Complaints and requests pertaining to blocking are kept strictly confidential, which makes it difficult to mount legal challenges against any orders. Since RTI queries are inapplicable, even finding out whether a website has been blocked can be a challenge.
The Rules do not provide a review or appeal mechanism, which disproportionately impacts the people's’ right to internet access. The emergency provision does not define the term “emergency”. Orders passed under it contain no reasoning, and affected persons are not given an opportunity to be heard.
Need to Reconsider Opaque Rules That Impede Right to Internet
Thus, the Rules are opaque and contain no checks and balances to ensure accountability. As they stand, the Rules disproportionately impact the people's right to internet access.
In order to remedy this situation, blocking must be done only as a measure of last resort. To ensure accountability on the part of the government, any blocking order must be passed only after extensive public consultation.
It must also meet the constitutional tests of reasonableness and proportionality, contain written reasons and be disclosed to the public. Further, the Rules must be modified to allow people to appeal against such orders.
Only by balancing its concerns with the rights of the people at all stages can the government ensure an internet governance regime that is oriented towards people's welfare.
(Divya Maderna is MLA from Osian Constituency of Rajasthan. Abhishek Kumar is the Founding Director of Indicc Associates, a public interest firm. Madhav Shankar, consultant Indicc Associates, contributed to this article.)