Net Block in a Free Country

The Republic of India adopted its Constitution on January 26, 1950. The

Preamble of this Constitution describes India as a "sovereign, socialist,

secular and democratic republic". The Constitution was formulated soon

after independence and the development of the country had just begun.

The advent of the Internet has suddenly exposed Indians to a huge repository

of information. From the 1950s, when exposure to information was negligible, to

2002, we have seen India undergoing a sea change. Consequently, netizens in

India consider it their birthright to access all kind of information available

in the public domain.

However, this very issue has raised some very pertinent questions. Recently,

the Government banned the use of ISD, STD and also Internet access from public

places in Jammu and Kashmir. This was done in order to ensure the security of

the state, given the widespread use of the Internet and other telecommunication

services by terrorists in planning, preparation and implementation of militant

and terrorist activities. The first question that can be raised is whether such

a decision is legal. Yes, it is. The Central Government has got the power to

impose such reasonable restrictions on the enjoyment of fundamental and other

rights of the citizens of the country if it is necessary so to do in the

interests of the security of the state, friendly relations with other nations,

public order, decency and/or morality.

Another crucial issue is whether citizens have the fundamental right to

information in our country. The fundamental rights, enshrined in Chapter III of

the Constitution of India are guaranteed to citizens. The right to information

is not a specific fundamental right incorporated in the Constitution of India.

The Constitution guarantees the right to life under Article 21 of the

Constitution. This fundamental right has been widely interpreted by the Supreme

Court in its various judgments and its ambit has been sufficiently expanded. The

Supreme Court has held that the right to life as enshrined by Article 21, means

something more than survival or an animal existence. It includes the right to

live with human dignity. It includes all those aspects of life, which make the

human life meaningful, complete, and worth living.

However, in today’s context, the right to life needs to be expanded to

include the right to information and the right to access the Internet. The

enjoyment of fundamental rights is subject to such reasonable restrictions as

may be imposed by the Government from time to time. It is of course necessary

that these reasonable restrictions must satisfy the test of reasonableness laid

down by the Constitution and the Supreme Court.

From this perspective, the recent decision of the Central Government in

banning Internet access from public places in the state of Jammu and Kashmir is

indeed a reasonable restriction that satisfies this test.

However, the broader policy question is, do you deny access to Internet at

public places to the public at large just because certain individuals misuse it?

Rather than completely banning access to Internet, it will be far more prudent

to regulate the access to Internet in public places.

This can be done by coming up with appropriate regulations including measures

like restricting Internet access at cyber cafes to citizens with identity or

ration card. There is a need to make it mandatory for cyber cafes to maintain

logs of people who visit the cyber cafes along with details of their proof of

identity. Surveillance software needs to be installed at cyber cafes so as to

monitor its misuse by potential terrorists. This would be a step in the right

direction.

Cyberlaws are not restricted to the legal issues concerning the Internet, but

also concern the impact of the Internet, its access and effect on the human

rights of individuals. We have to be pro-active in constantly adapting ourselves

and display jurisprudence to be in tune with the changing times. Access to the

Internet is but a part of the basic human rights of individuals all across the

world.

We need to act fast to change perceptions. Or else, it may not be possible

for us to move ahead and progress in the context of the converged and networked

environment.

The author is a cyberlaw consultant and a practicing advocate at the Supreme

Court of India