As the share of states in government expenditure is inching towards 60%, the budgets of different state governments are more important than ever before. Those budget statements also contain some interesting ideas. One such idea came from Kerala this year. Promising to deliver a new optic fibre network, Wi-Fi transmission centres and free Internet facility to two million poor families, Kerala’s finance minister T.M. Thomas Isaac affirmed access to Internet as a right for every citizen. With this, the southern state joined a clutch of countries like Finland, Estonia, France, Spain, Greece and Costa Rica that have declared the Internet a basic human right—the precise legal commitments differ in each of these countries.
Last year, the UN issued a declaration which was widely interpreted as an affirmation of access to Internet as a basic human right. A closer reading, however, suggested that it primarily focused on imploring states to refrain from taking any measure that disrupts citizens’ access to the Internet. However, the UN declaration also went on to affirm “the importance of applying a comprehensive human rights-based approach in providing and in expanding access to Internet…” So far it is clear that there are two distinct issues involved here: 1) the access of Internet services to people who cannot afford it currently, and 2) the disruption of Internet services for current users.
The latter can be covered under both the right to access information and the right to freedom of expression. The state ought to frame guidelines or laws to govern Internet disruptions and shutdowns in accordance with liberal interpretation of the freedoms it bestows upon individuals. Such a policy should curb the powers of the state and Internet service providers to implement Internet blackouts. But can access to Internet in general be defined as a basic human right? Vinton G. Cerf, a “father of the Internet”, doesn’t think so.
In an article for The New York Times, Cerf argued, and correctly so, that the move to declare the Internet as a human right may be well intentioned but misses the point that “technology is an enabler of rights, not a right itself”. A strong rebuttal from Scott Edwards of the Amnesty International USA pointed out that even if “access to the physical town square may not be a human right in isolation, it has always been for most inseparable from the right to association and expression”. “And denial of access to the town square through curfews, martial law, or emergency rules,” Edwards adds, “are tantamount to restriction [sic] on association and expression.” But again Edwards is actually defending the right to access Internet for current users more than the right to services for those who cannot afford it.
But Cerf himself complicates the matter by allowing for the Internet to be defined as a civil right which is “conferred upon us by law” as opposed to a human right which is “intrinsic to us as human beings.” This brings us to another distinction—one between positive rights and negative rights—which is more important to developing countries like India. Negative rights are intrinsic to us as human beings and the Constitution merely guarantees the protection of such rights. The Constitution usually curtails the power of government or other entities in performing certain actions which violate the negative rights of the individual. The right to equality or the right to freedom of expression enshrined in the Constitution of India are examples of such rights.
A positive right, on the other hand, enables the holder of the right to claim a good or a service against the state or someone else. These rights—or simply, entitlements—require fiscal allocations and hence are subject to budgetary constraints. In India, such rights include the right to work (National Rural Employment Guarantee Act, 2005), right to education (Right of Children to Free and Compulsory Education Act, 2009), and right to food (National Food Security Act, 2013). Cerf’s idea of right to the Internet as a civil right also comes under the banner of positive rights.
When legislated, supporters argue, positive rights become justiciable and enable the citizens to demand better services from their governments. But as Parth J. Shah, the founder president of the Centre for Civil Society, argues in Liberalism In India: Past, Present And Future, justiciability works only in theory, not in practice. Non-provision of positive rights can be justified on several grounds like budgetary constraints and fiscal prudence and no one in the government can be held accountable. Moreover, declaration as rights enables centralization of power. A right to education, for instance, mandates a kind of standardization for every corner of the country without taking into account the granular differences on the ground. This limits policy experimentation and is deleterious for governance in general. Positive rights also dilute the scope of more critical negative rights by spreading the state capacity—a scarce commodity, especially in a country like India—thin.
The usefulness of the Internet cannot be overstated and the government should do everything possible to bridge the digital divide among its constituents. But declaring access to the Internet as a citizen’s right is not a defensible proposition.
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