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Unenforceable right

Without uniform internet accessibility, neither the children can access their lessons that have now gone completely online, nor can the citizens avail facilities of telemedicine, e-banking, e-commerce or e-governance, all of which were accessible only through internet during the extended lockdown period and to a very large extent, still are

GOVIND BHATTACHARJEE | New Delhi |

In response to a plea against the continuing curbs on internet access in the Union Territory of Jammu and Kashmir after revocation of article 370 last year, the Supreme Court in January this year, in a landmark ruling, had decreed that access to the Internet is a fundamental right under Article 19 of the Constitution and ordered the administration to review all orders restricting access to the internet within a week. While Part III of the Constitution deals with the fundamental rights of citizens, Article 19 specifically enumerates the fundamental freedoms including the freedom of speech and expression. A fundamental right is available to citizens under all circumstances, except under reasonable restrictions explicitly mentioned in article 19(2) which includes the sovereignty and integrity of India and its security, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence. Right to free and compulsory education between the ages of six to fourteen years also became a fundamental right under article 21A. Since article 21 deals with the right to life or personal liberty, this acknowledges education as an integral part of human life and liberty.

Scope of Article 19 on the freedom of speech and expression was enhanced by the Supreme Court on many occasions. Implicit in this is the right to information. In Raj Narain vs the State of Uttar Pradesh case, the Supreme Court ruled that the citizen’s right to know arises from the fundamental right of freedom of expression. It may be recalled that this was an appeal against the famous Allahabad High Court judgment unseating Mrs Gandhi on the basis of disclosure of certain documents related to her electioneering travel. Two days after that judgment, on 26 June 1975, Emergency was imposed. It took 30 years to legislate the Right to Information Act in 2005 to provide a machinery for exercising this fundamental right.

In M Narayana Reddy Vs Government of India (2011), the Supreme Court had further clarified that the “right to information is only a step that helps an individual to get himself well-informed, so that he can exercise right to freedom of speech and expression effectively.” Freedom of Press also flows from this article 19 and includes not the only the freedom to write and publish but also to disseminate information, subject to the reasonable restrictions mentioned above. At least eight Supreme Court judgments have confirmed and asserted this position again and again.

For millions of Indians, internet remains the primary source of information. The January 2020 ruling of the Supreme Court makes internet access a right and not a privilege, which is also in line with the UN recommendation that every country should make access to Internet a fundamental right. Kerala was the first state in India to declare access to Internet “a basic human right” in 2017. The issue assumes special importance in the current context of Covid-19 which has seen all schools, colleges and educational institutions being closed for extended periods of time, instructions being imparted online and even examinations being conducted in the online mode. Only those who have access to the internet can avail of such instructions and appear at the examinations. The huge digital divide that exists in India thus denies a large section of the population their fundamental rights to information and education as guaranteed in the Constitution.

To understand the extent of this inequity, let us first examine the depth of the digital divide in India. It is a fact that the basic telecommunication facility in India has increased phenomenally in recent times. The number of wireless subscribers in June 2020 stood at 1.1 billion, growing by 30 million every year, and more or less evenly distributed between the rural and urban areas. But these provide only the basic telecom services; services like online classrooms, financial transactions, e-commerce or egovernance need internet access which require a smartphone or a computer.

As the 75th round of National Sample Survey (July 2017-June 2018) showed, only 4.4 per cent rural households in India have a computer against 14.4 per cent in urban households, and only 14.9 per cent rural households have internet access against 42 per cent in urban households. A meagre 13 per cent in rural against 37 per cent in urban areas can use the internet. Besides, the disparity in internet access varies widely across regions and states, from a miserable 5.8 per cent in rural Odisha to a respectable 70.6 per cent in urban Himachal Pradesh. Overall, only 10.7 per cent of Indian households own a computer and 23.8 per cent have internet access facilities at home. There is also the gender divide, female internet access being almost half that of males in both rural and urban areas. It is not only the rural-urban divide, but also the overall low internet penetration that accentuates the stark inequity between digital haves and have-nots in our country. A more recent survey conducted jointly by the Internet and Mobile Association of India and Nielsen, concluded in November 2019, found that India had 504 million active internet users, which leaves out nearly 900 million Indians. Though they found the digital divide had narrowed, with 277 million rural against 227 million urban users, still 70 per cent of the rural population were on the wrong side of the digital divide, which is further aggravated by the issues of availability of power and quality of internet access or low bandwidth, in most rural and many urban areas as well.

It is not that nothing has been done. Apart from the aggressive push given by government programmes like National Digital Literacy Mission and Digital Saksharta Abhiyan etc., privatesector innovation like Reliance Jio’s strategy of bundling virtually free smartphones along with subscriptions has also helped the democratisation of internet. Data costs have also dropped simultaneously by more than 95 per cent since 2013 ~ today it only costs only $0.26 (about Rs 18) per GB, the lowest in the world. But still, for millions of Indians, especially those going to schools and colleges, quality access to internet remains a distant dream. This is where the question of fundamental rights come.

Without uniform internet accessibility, neither the children can access their lessons that have now gone completely online, nor can the citizens avail facilities of telemedicine, e-banking, e-commerce or e-governance, all of which were accessible only through internet during the extended lockdown period and to a very large extent, still are. They will likely remain so for a long time as yet. The inescapable conclusion is that the ones who are digitally deprived will slip by and become laggards in respect of education, health and every other aspect that makes like purposeful. In due course, this will manifest in resentment, anger and social turbulence, pre-empting and preventing which is every government’s primary responsibility. Discharging this responsibility will mean providing an internet-enabled device and internet access to those who cannot afford it at present, for which the existing BPL list can serve as a proxy. What is needed next is an entitlement legislation like the RTI or MNREGA.

In our existing scheme of things, internet falls within the jurisdiction of the Union under Entry 31 of List I (Post, telephone, telegraph, wireless, broadcast, etc.). Under the residual Entry 97 also, the Union has the prerogative to legislate on the internet. But this is an area where closer co-operation between the Union and the States is essential because the underlying activities and deliverables concern the states more than the Centre – education, for example, is in the concurrent list. Hence an appropriate Constitutional amendment may be thought of. But success can be ensured only if the governments and political parties start thinking creatively. For example, instead of promising all kinds of freebies in their election manifestoes, they can promise a smartphone and internet access which would cost a fraction of what the existing subsidies cost.

A poor country in Eastern Europe with a Soviet legacy, Estonia at independence in 1991 had a single independent mobile phone-link with the outside world that was concealed in its foreign minister’s garden. Just two decades later, it became the first country in the world to allow online voting in a general election. With one of the highest broadband speeds among the world, it had digitised the health records of all its 1.3 million citizens who filed their tax returns online and equipped all classrooms with computers. By 1998, all its schools were online and two years later, it declared internet access to be a human right. Free Wi-Fi became the norm rather than exception and hi-tech global industries accounted for 15 per cent of its GDP. If tiny Estonia could achieve so much, with the energy of a billion people, can’t we?

The writer is a commentator. The opinions are personal