August 30, 2020
September 1, 2020

Access to Internet as a Human Right: Lessons from Kashmir debacle in Post-Covid Order

Even before the majority of nations worldwide went into state-imposed lockdowns beginning from March 2020, an erstwhile northern-most state of Jammu & Kashmir in India was ripped of normalcy nine months before on 5th August 2019 when Article 370 and 35-A of the Indian Constitution were revoked and multifarious mechanisms were put to halt. It was on this day that the state was split into two union territories – UT of Jammu & Kashmir and UT of Ladakh – and restrictions on movement, communication, internet and public participation were imposed only to be followed by numerous detentions and house arrests. The silver lining advocated by the Government was a vision for a better future dominated by enhanced development, improved infrastructure, educational and healthcare reforms for the valley coiled up in militancy since 1947.  However, it has been an exact one year since the abrogation was put into force and the conditions in the valley still seem bleak and remorseful despite the governmental promises.
The shutdown of the Internet: 21st Century Lockdown Facet
One of the starkly daunting facets of the Kashmir lockdown has been the internet shutdown which was imposed under the Indian Telegraph Act, 1885 on 4th August 2019, i.e. a day before the revocation of special status of the valley. This action dissembled as a step to protect national security and curb violent upheavals ignited resentment amongst the national and international community whose members staunchly highlighted its repercussions on Article 19 of the Indian Constitution which enforces fundamental right to speech and expression. On Economic and livelihood front, the Kashmir Chamber of Commerce and Industry pointed out that as many as 5 Lakh people lost their jobs since August 2019 due to such digital restrictions. Moreover, lasting for more than 100 days, Access Now, an international advocacy group, termed this internet shutdown as the longest one ever imposed in a democratic order.
Contrary to India’s digitization vision, this curtailment was only partially lifted in the month of January 2020 wherein 2G access was assured on mobile platforms. The same was governed and preceded by the Anuradha Bhasin judgement delivered by the Supreme Court of India.
Right to access Internet: From a Judicial Lens
The Anuradha Bhasin judgement has been heralded by many as a paramount break for recognition of right to internet as fundamental in the nation. However, this judicial proclamation went no further than just promulgating the importance of internet for facilitating fundamental rights of trade and expression while upholding the complete suspension of internet services when considered ‘necessary’ or ‘unavoidable’ by the State. Constructively, this judgement only mandated the constitution of an Expert Committee which was to be comprised of Governmental representatives who would be charged with the duty to look into the governmental mandate of internet shutdown in the valley. Quite evidently, it contravened the judicial principle of ‘nemo judex in sua causa’.
This judgement is in stark contrast with an earlier High Court decision in Faheema Shirin v. State of Kerala wherein the Bench recognized that in light of the vast digitization campaigns undertaken by the State Government any unreasonable action which curbed access to internet would not only be a negation from policy directives of digitization but it would be a brusque violation of Article 21 and 19 of the Constitution. Justice P.V. Asha concurred with the petitioners in upholding that deprivation of access to internet staunchly effects availability to information which hinders access to educational and economic opportunities. Moreover, the Bench further pressed upon the reformation of rules and regulations to cope up with trends of technology and internet.
Aftermath of Anuradha Bhasin Judgement: Recalibrated Violations
The Special Committee envisaged by the Anuradha bench was only constituted on 11 May 2020 and until then severe blow to citizen’s rights and livelihood was already made. Even post the constitution of the Committee, more restrictions have only been imposed in the valley and no relaxation has been offered amidst the pandemic.
The state of education deteriorated as students were unable to access the online classrooms, attend online lectures, appear for online examinations and avail other online educational opportunities. The small businesses, tourism and handicrafts suffered as connectivity to their customers was lost. Medical help turned into a tumultuous arena as doctors found it hard to access the latest advisories on COVID-19 and provide online prescriptions for patients. Moreover, many citizens were unable to access healthcare insurance schemes as access to the same took to an online platform which the residents found hard to access.  The citizenry suffered for access to communication, information and employment opportunities deteriorated in the area as the outbreak of pandemic mandated closures of economic, recreational and industrial hubs placing sole reliance on the online market facilitated by internet which was amiss in the valley. A study by ICRIER titled ‘The Anatomy of An Internet Blackout: Measuring the Economic Impact of Internet Shutdowns in India pointed out that the shutdowns alone in 2017 alone contributed to a loss of Rs 1776 crore in the valley striking hard upon tourism, businesses, schools and IT sector. This has been certainly been aggrandized in the present scenario as the valley remains in shackles since 5th August 2019.
Human Rights Watch highlighted that violations of laws and rights of the citizens are continuing unabashedly in the Union Territory wherein numerous journalists, businessmen, children and doctors are facing the brunt of repressive policies. The rights of livelihood, practising trade or business, a fair education and access to healthcare as granted under the sacrosanct Indian Constitution, Universal Declaration of Human Rights and International Covenant on Civil and Political Rights have been put to a stop with the internet lockdown. This is true for, in a pandemic guided by social distancing measures and lockdowns, all these activities have gone online thereby placing tremendous reliance upon efficient internet connection which is a distant reality in the valley. Moreover, the situation in the valley only showcases disregard for Article 19 of the ICCPR which assures protection to ‘media of information and connectivity’ – the roles played by internet in the times of social distancing and lockdowns.
Viewing Human Rights from the Lens of Technology in Information Society
When Vinton G. Serf pointed out internet as solely an enabler of human rights, he certainly didn’t fathom the repercussions of a pandemic which necessitated sole reliance upon internet if rights were to be enjoyed, information was to be accessed or shared and economic opportunities were to be seized at all. Added to this, way back in 2011, a UN Human Rights Council Report had only concurred that access to internet is necessary for securing a wide range of human rights granted under veritable instruments. Moreover, the European Court of Human Rights recognized internet to be a facet of freedom of speech, expression and participation in the case of Ahmet Yildirim v. Turkey in 2012. It was in light of the same judgement that the Council of Europe’s Internet Governance Strategy was formulated which emphasized upon promoting and assuring access to internet with minimum restrictions. On similar lines, a UN resolution was also passed in 2016 which upheld the prevalence of digital rights on internet and condemned actions of states to block access to the same.
Such undertakings are only a testament to technologically transforming realities of the world which will only be bolstered by this pandemic. As recognized by the UN, the realm of human rights will be only molded as per the new regulations of society and access to internet will a prominent center of focus. Many countries like France and Costa Rica have already judicially recognized access to internet as a guarantor of human rights in the newfound information society. Some like Greece went a step further by guaranteeing participation in information society as a constitutional right. In case of India, the realization is only corroborated by the lessons we learn from Kashmir reality which has borne the brunt of violations of Articles 14, 19 and 21 fueled by internet shutdowns.
The earliest learner and upholder in India’s case could be the Special Committee which is looking into a resumption of internet services in the valley or the Apex Court which could directly adjudicate the matter instead of placing authority with the Executive. As for future undertakings, central legislation governing and protecting the realm of internet access and privacy is a necessary medication if India is to secure its future in the digitization drive.




Nimrat Kaur is a law graduate from Symbiosis Law School, Pune.


In Content Picture Credit: Change Meme

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