For those worried about the increasing digital divide in the light of COVID-19 when more services than ever before have gone virtual, the recent launch of the new Prime Minister Wi-Fi Access Network Interface (PM-WANI) project is certainly a piece of positive news.
Under the PM-WANI project, the government aims to establish public Wi-Fi networks across the country.
While the merits of this initiative by the Indian government have been examined, it is equally important to take the discussion further by thinking through what this project may mean for the discourse on ‘right to internet as a human right or a fundamental right’.
Over the last decade, the question regarding whether internet access is a human right has been repeatedly raised, directly or indirectly, at the domestic level. This has been the case at the international level as well.
For instance, in the United Nations Human Rights Council resolution in 2016 there was a reference to the right to internet (though there is some debate that if the resolution specifically asserted that the right to internet is or should be a human right). In today’s times of COVID-19 and in the post-COVID-19 world, with the increasing role of the internet and technology and thereby with the increasing possibility of the widening of the digital divide, this question becomes more pertinent than before.
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It is interesting to note that while there has been a discussion regarding whether the right to internet access is indeed a human right – or in the Indian context, whether it is a fundamental right under the constitution – we more often than not tend to view it from a negative-centric and positive-centric perspective.
Internet as a civil-political right or a socio-economic right?
In the discourse on human rights, since time immemorial, human rights have been divided into civil and political rights on the one hand, and socio-economic rights on the other.
Generally, civil and political rights are considered to be those human rights that can be protected by ensuring that the state does not ‘interfere’ with the enjoyment of such rights. By this definition, the right against interference into the right of free speech or the right to life simpliciter, for instance, can be counted in as civil-political rights.
Map depicting size of India’s internet. Photo: Indi Samarajiva/Flickr CC-BY-2.0
Socio-economic rights, on the other hand, are considered to be those which require some positive state action and thereby use of economic resources by the state, and the state is thereby expected to act as a welfare state. Often right to education, the right to housing, and the right to healthcare are treated as examples of popular socio-economic rights.
Since the focus in the case of civil-political rights is on ‘non-interference’ by the state, they are also called negative human rights. Likewise, since the highlight of socio-economic rights is to nudge the state to provide and promote by ‘positive’ acts and measures, these rights are called positive human rights.
Often in the international context, the right to internet as a human right is mostly spoken of as a civil-political right alone. This happens because in legal cases, as well as in the UN documents, more often than not, we are concerned with the state’s blocking of the internet or denial of internet services to protect law and order.
In the Indian context, for instance, in cases such as Anuradha Bhasin v. Union of India and Faheema Shirin RK v. State of Kerala, the right to internet was discussed in the context of it being a negative right. The entire focus of judiciary in these cases was on how the state cannot or should not ‘interfere’ with the enjoyment of the citizens’ right to the internet, be it in the context of the right to free speech and expression, or the right to education under Part III of the Indian constitution.
Therefore, often, courts and other institutions do not emphasise or take measures relating to the promotion of the right to the internet as a socio-economic right, whereby the emphasis is on talking about the positive obligation of the state to expend its resources to provide wider internet access to masses.
In this backdrop, the PM-WANI project is a step in the right direction in the backdrop of the discussion undertaken so far relating to the right to internet as a human right. This is because it discusses increasing access to the internet much farther and wider by way of some kind of ‘positive’ state action.
Right to protect, respect and promote
Another way to view PM-WANI against the human rights scholarship is to consider the work of the celebrated human rights scholars such as Prof Sandra Fredman, University of Oxford, and Prof Henry Shue, University of Oxford.
They point out that logically there cannot be a line of division splitting human rights into civil-political and socio-economic rights, confining them into watertight compartments. They say that even civil and political rights, like socio-economic rights, may require state expenditure and positive measures. As an example, the right to vote, often considered as a civil and political right, requires an expenditure on the part of the state to carry out the election process.
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Therefore, according to them, a more sensible approach instead of dividing human rights into two distinct categories, for every human right, there should be coverage of its three strands or aspects for its complete and wholesome realisation.
These three aspects are the right to protect, the right to respect, and the right to promote in relation to any given right. Under this, the obligations to respect are a set of paradigmatic obligations not to violate rights. Mostly, these kinds of human rights obligations, being negative in nature, are easier to receive the status of human rights far and wide.
File photo of Kashmiri journalists protesting against the internet shutdown in Srinagar in November 2019. Photo: PTI/S. Irfan
Obligations to protect, on the other hand, require nation states to restrain third parties from violating rights of any individual human. In sharp contrast to the obligations to respect and protect, obligations to fulfill assume no particular abuser; they require states to foster positive instead of negative liberties by taking some positive state action as a welfare state.
If the PM-WANI project is analysed in this light of understanding human rights, it takes the courageous and unusual step to promote the ‘right to promote’ aspect of the right to internet as a human right (assuming the right to internet is indeed a human right).
Government’s contrary stand
However, the government’s PM-WANI project would paint an incomplete picture of the role of the Indian government in relation to honouring its citizens’ right to internet as a fundamental right if there is no mention of the various steps that it has taken to violate the same.
Internet blackouts in the various parts of the country at the time of the nationwide protests against the Citizenship Amendment Act 2019 and the long-drawn internet blackouts in Jammu and Kashmir after the reading down of Article 370 speak of this approach.
Usually, the concern among the human rights advocates is that governments across the globe pay attention to safeguarding and promoting civil-political rights and ignore the enforcement of socio-economic rights as the latter requires an expenditure on the part of the state.
Also read: What 300 Days of Internet Winter in Kashmir Tell Us About Erecting a Digital Wall
However, the Indian government’s approach in relation to the right to internet as a human right/fundamental right is completely opposite and thereby rare: here, the government seems to be boldly protecting the socio-economic right aspect of a human right while violating its civil-political right aspect.
In the post-COVID-19 world with increased digitisation of various amenities and aspects of lives, the PM-WANI project is a step in the right direction. The analysis from the perspective of the academic discussion pertaining to human rights indicates so as well.
However, as we analyse how PM-WANI is a promising step, we cannot be oblivious to the many attacks that the present government has resorted to in the recent past against its own citizens’ right to internet as a civil political right. Only when we keep that in mind, the critique of the Indian government’s overall stance towards safeguarding its citizens’ right to internet would be complete.
Priya Garg is an advocate at Delhi high court and a faculty member at Jindal Global University.