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The Fundamental Right to Internet

The Internet is the median strip that divides human civilization into two: the pre-Internet era and the Internet era. Life without the Internet is equivalent to life in the cave. The Internet can be equated with the invention of the wheel, discovery of fire and invention of language.

The Fundamental Right to Internet studies the impact of the Internet on the fundamental rights guaranteed to every citizen by the Constitution of India - whether it is the fundamental right to equality, freedom of speech and expression, freedom of business and profession, right to education, fraternity, secularism, or the right of association - the Internet profoundly impacts them all. It explores the next great landmark in Constitutional law - the emergence of the fundamental right to Internet. It critically examines how the Internet confronts and defies the law against cyber pornography and suggests an appropriate legal model for it. It underscores the question: Whether the adults in India, have a legal and/or fundamental right to enjoy adult-entertainment/sex material. It examines the problem of protecting children from cyber pornography and deals with the dilemma of striking a balance between protection of children from cyber porn and the rights of adults. It also looks into the criminal liability of the intermediaries. Should '' be liable for the 'DPS-MMS' sex-clip that was sold through its auction platform? It's the first book of its kind!

I have had the pleasure of reading the manuscript to the Fundamental Right to Internet ‘by Mr. Vivek Sood', a member of the bar. His request to me has been to write an introduction to the book. There are some authors who write introductions to their own books to familiarise the topic, the thoughts, the voice, the echo-effect, the repercussions, the stirs and possibly sometimes providing an explanation and sometimes a guide to understand the book.

A reader, while asked to write an introduction, has a different perception altogether. The perception is fundamentally an amalgam of subjective ideas and the objective parameters; an individual perception and a collective outlook. After going through the manuscript at the individual level, I felt that while following the footsteps of the knowledge of the past, one should train one's curious mind to behold the words that endure and sustain the impact of the book that one has on one's mind; and while reflecting on the collective perception, basically on the conception of fundamental right to internet, one would visualize every facet of freedom, basically as an epitome of a human arena, which really strikes the pathway through the discursive thought. There may be limitation of choices or there may be not. The ideas propagated, as the author would put it, are futuristic but the future may not be far away if in the conceptual eventuality the narrowness of the globe is perceived.

The book, while at one level reflects on the legal pronouncements on the contemporary society, suggests various facets to demolish the barricades regard being had to the conflict of use of the medium in the various parts of the world. The growing world, as has been noticed by the author from the Apex Court decisions, has become more tolerant "having become indurated by literature of different sorts” and the perceptual shift that has occurred. The rival interests, namely, the social perception and the legal interpretation are sought to be balanced by giving emphasis on social responsibility. The analysis of basic structure of the Constitution and the issue of fitment of fundamental right to internet, especially the fundamental right to freedom of speech and expression, is simultaneously interesting and thought provoking. The author thinks that the internet facilitates the basic facet of Article 21A of the Constitution and metamorphoses the dream of free education into reality. He also propagates the utility of internet in an egalitarian society. The paradigms suggested by the author may, on a first glance, look paradoxical but on a keener scrutiny, a humble reader may eventually feel that possibly all human knowledge contains a basic arena of initial paradox which solely graduates the transformation of the mind. The question that the author raises is whether one should accept the contradiction and eliminate it as the same deserves so for the progress of life and annihilation of the comatose of a mindset of the statusquoist.

A keen reader may pronounce as Albert Einstein has put it:

"As far as the laws of mathematics refer to reality, they are not certain and as far as they are certain, they do not refer to reality."

In the ultimate eventuate, it can be stated with certitude that things change. The law with the passage of time does change and it is an affirmative step by the author for changing the mindset of the people with the fervent hope that law shall change. The effort is a challenging one and, I am sure, would certainly make a joyous reading for every student of law.

Justice Dipak Misra
Chief Justice, High Court of Delhi

In his two earlier books “Cyber Law Simplified”, published in 2001, which is in its sixth reprint and “Cyber Crimes, Electronic Evidence and Investigation”, first published in 2008, Mr. Vivek Sood had presented a fairly new concept relating to the cyber world in a simple form which could be easily understood. His endeavour was to analyse the cyber law as existing in India in the context of the Information Technology Act, 2000, which was enacted in keeping with the Model Law on Electronic Commerce adopted by the United Nations Convention on International Trade Law (UNCITRAL) on 30th January, 1997. The main object of the said Act was to provide legal recognition to transactions carried out in the virtual world by means of electronic data interchange and other means of electronic communication known as "electronic commerce" and their authentication by means of Digital signatures and Electronic signatures.

In the second of the two above-mentioned books, the author has delved into crimes relating to the virtual world and has dealt with various concepts of Cyber crime and the rights of adults to sexual content in the light of Section 67 of the Information Technology Act, 2000. While advocating the rights of adults under the said provisions to willingly share pornographic material amongst themselves, he has, however, also gone on record saying that grossly offensive forms of cyber pornography, such as child pornography, deserve to be criminalised.

In this his third book titled "The Fundamental Right to Internet" Mr. Sood has entered unchartered territory and has made out a fairly convincing case for inclusion of the use of the Internet within the ambit of Part III of the Constitution via Article 19(1)(a), which guarantees the right to freedom of speech and expression as a fundamental right for all citizens. Mr. Sood has attempted to equate the right to freedom of speech and expression in the tangible world to similar rights in the virtual world. Considering the fact that many of the cyber crimes enumerated in Chapters IX and XI of the Information Technology Act, 2000, have parallels in the Indian Penal Code, and that various provisions of the said Code and the Indian Evidence Act, 1872, have been amended to meet the rapid technological advancements in the recent past, lends a good deal of credence to Mr. Sood's efforts.

In this book, the author has dealt extensively with the right to freedom of speech under Article 19(1)(a) with the State's power to impose reasonable restrictions under Article 19(2) of the Constitution in the context of filtering cyber pornography to suit the right of adults to sexual content. He has relied on various judgments, particularly of the Supreme Court, to establish his theory that the right to Internet is basic and fundamental and would qualify to be part of the basic structure of the Constitution under Article 19(1)(a) thereof. He has also referred to modern day usage of Blogging, Tweeting, On-line chat, e-mail, Internet and You Tube as means for fulfillment of the right of freedom of expression under Article 19(1)(a) of the Constitution. Going one step further, the author has also suggested that Facebook and other net-working sites are manifestations of the right to form associations in terms of Article 19(1)(c) thereof. In this context, he has attempted to make out a case that the provisions of Section 292 Indian Penal Code can run counter to the right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution. The author has also referred to various judgments of the Supreme Court and the Delhi High Court relating to allegations of obscenity as against artistic freedom and right of expression, prominent among them being the decision of the Supreme Court in relation to the film “Satyam, Shivam, Sundaram” and the decision of the Delhi High Court in the case of Maqbool Fida Hussain & Others Vs. Raj Kumar Pandey, to buttress his views.

Whether one agrees with Mr. Sood's contentions or not, the contents of this book make interesting reading and demands the attention of all those who are concerned with and champion the cause of preservation of rights which are fundamental to every citizen of this country and in particular the right to free speech and expression on canvas or in the electronic and print media, within the parameters of Article 19(1)(a) of the Constitution of India. It is a book which merits a place on the library shelf of all those who believe in individual freedom and are committed to the cause of preservation of the fundamental rights of the citizens of this country as guaranteed under the Constitution.

This is the way (privacy) ends
This is the way (privacy) ends
This is the way (privacy) ends
Not with a bang but a whimper
- Thomas Stearns Eliot, The Hollow Men'

In the past decade, the words 'cyberspace' and 'globalization' have become the exhortation of our generation. The fact that the two have entered the law lexicon simultaneously is not astounding. The 'Internet' has foreshown the path to a new order of interconnection and seamless existence. It renders the concept of No Man's Land' futile, as it can be accessible from any part of the world yet no one can own it.

The Fundamental Rights are a symbol of triumph over the malevolent bondage of Colonialism. Like the Bill of Rights in the American Constitution, our Fundamental Rights are the defenders of the citizen's subdued existence in society. In A.K. Gopalan v. State of Madras (1950 SCR76) Patanjali Shastri C.J. observed, ‘... the insertion of a declaration of Fundamental Right in the forefront of the Constitution coupled with an express prohibition against legislative interference with these rights (Art. 13) and the provision of a Constitutional sanction for the enforcement of such prohibition by means of judicial review (Art. 32) is a clear and emphatic indication that these Rights are to be paramount to ordinary State-made law.’ This alongwith a plethora of judgments ensured that in the midst of the various enactments, bye – laws, rules, policies for advancement of the State, the individual's right was not emasculated. India opened its door to globalization in 1991. One of the major entrants through that opening was the Internet, whose revolution has had a profound impact on the societies and economics worldwide. Nowadays, it is not only used for telecommunication but also to carry on business and occasional luxury. The influence of the Internet is staggering and there is every reason to believe that if not kept under control, its effects will have an even greater impact on our lives as individuals and social institutions. Yet, many people are not aware of how it is being misused and what are the available remedies, if any.

For those looking for a remedy, one does not have to go beyond the Constitution since our forefathers have left enough room for interpreting Right to Internet' as a derivative fundamental right. The reason I say this particular right is derivative in nature is for the simple fact that its origin is based on the substantive judicial interpretation.

This work would be the first of its kind to analyze the fine line of right to internet vis-à-vis freedom to receive information under Article 19(1)(a). In today's times when India is traversing the medium of Internet, it is very necessary to appreciate the road to development along with its vulnerability to self-destruct. Vivek has captured the endless world of web in this book identifying and addressing the pressing issues of Cyber Pornography and the unqualified need to protect the children of today.

The book needs a close and careful read.

'IMMORTAL POEMS OF THE ENGLISH LANGUAGE 543 (Oscar Williams, ed., 2d ed. 1960)

This book inter-alia explores the emergence of the fundamental right to Internet, critically examines the law that penalizes cyber pornography, endeavours to develop an appropriate legal model to deal with cyber pornography, attempts to find the right of an Indian adult to adult/sex-related entertainment, finds ways to protect children from sex-related content that is harmful to them but is legitimate entertainment for adults, and discusses the problems-solutions with respect to the liability (civil and criminal) of intermediaries such as telecom service providers, ISPs (Internet Service Providers), search engines, online auction sites, web-hosting service providers, blog service providers, online payment sites, network service providers, social networking sites etc.

It's time "WE, THE PEOPLE OF INDIA" debate the question whether Part-III (Fundamental Rights) of the Constitution of India has real space for the virtual world – the Internet, that has revolutionized human life and the global society. Can the “fundamental right to Internet" be read into Part-III of the Constitution of India? Has the fundamental right to Internet emerged in our country? If so, from where and how does the fundamental right to Internet emerge? The focus in chapter-1 is to find the fundamental right to Internet, in Part-III of the Constitution of India.

While the Internet continues to revolutionize the freedom of speech and expression, certain threats to this fundamental right that is part of the basic structure of the constitution, have been extended on certain occasions by the government, in the name of security etc. The real issue is whether to apply Article 19(1)(a) and protect free speech or restrict it under clause (2) of Article 19. Freedom of speech and expression versus it's restriction by the State in the name of security, decency, morality, blasphemy, hurting religions sentiments etc. is a conflict that arises time and again in several parts of the world including India.

While speaking on the revolutionary impact of the Internet on free speech, it is necessary to also deal with the emerging conflict between information and communication technologies that represent free speech, and the State on the other side. Such issues are likely to confront legal systems more frequently in future, with the growth of the information society in which information and communication technologies dominate the lives of the people. Article 19(1)(a) is amongst the shining stars of the Constitution, is also a part of the Constitution's basic structure, has been liberally construed and jealously protected by the Supreme Court. However, clause (2) of Article 19 provides the instrument to the State to impose "reasonable restrictions” on the cherished freedom on the stipulated grounds. There is an emerging conflict between the two, that has also been addressed in Chapter - 1. This chapter also examines as to how the Internet revolutionizes the freedom of speech and expression (Article 19(1)(a)), freedom of business and profession (Article 19(1)(g)), and freedom to form association (Article 19(1)(c)). The Internet also ushers equality in the society, revolutionizes the fundamental right to education, promotes fraternity, nurtures secularism, and fulfills the objectives laid down in the Preamble to the Constitution. This chapter finally endeavours to find the fundamental right to Internet and it's place in Part-III of the Constitution of India.

The flood of adult-entertainment/sex-material luxuriously available 24x7' on the Internet that pervades our lives, demands that these questions are addressed, for they directly affect the adult population of the country:

  • Whether the adults in India, have a legal and/or fundamental right to enjoy adult-entertainment/sex-material, electronic or otherwise?
  • Whether the adults in India, have a legal and/or fundamental right to share adult-entertainment/sex-material, electronic or otherwise, with other adults who receive the same willingly?

Chapter-2 also examines the relevance of the 'Hicklin' test of obscenity in the Internet age, critically examines the existing legal model on cyber pornography, develops an alternative legal model, and journeys into the law governing cyber pornography in other parts of the world.

Chapter-3 examines the issues of protection of children from cyber pornography, the effectiveness of filtering techniques, balancing the rights of adults with protection of children with respect to e-porn, and the mechanisms to deal with child pornography.

The Internet is a global network of interconnected computers. Between the speaker/author who initiates the electronic communication or publishing of an electronic record (text, data, sound/voice, pictures, films, electronic deliverables, electronically touchable objects and other electronic creations that can be perceived by the senses) and the recipient, viewer, listener, audience, and consumer; there are numerous service providers called "intermediaries”. These intermediaries" provide the technological mediums, platforms and services with respect to the above electronic communication and publishing of electronic records.

These intermediaries include telecom service providers, ISPs (Internet Service Providers), search engines, online-auction sites, web-hosting service providers, blog service providers, online payment sites, network service providers, social networking sites etc. The significance of intermediaries needs no elaboration. The intermediaries make the Internet what it is.

While the intermediaries play the most significant roles in the cyber world, they are being targeted by governments and/or law enforcement agencies across the world, for failure to discharge gate-keeping duties and obligations, and as abettors of criminal acts by the main actors - the speaker/author/initiator/originator of an electronic communication or publishing of an electronic record. Intermediaries are facing bans by governments are being hounded by law enforcement agencies, and are also being implicated in criminal prosecutions. Chapter - 4 inter-alia examines the following issues:

  • What are the risks of being prosecuted, that the intermediaries face in this digital age?
  • Should the traditional legal principles of criminal liability that are applicable to accessories of crime, be imposed upon intermediaries?
  • What should be the legal model of criminal liability, that should apply to intermediaries?
  • Is the present legal model reasonable?

The 'Blackberry' controversy between RIM (Research In Motion, Canada) and the Indian law enforcement agencies, is a larger debate concerning privacy, security, and business. The debate needs a larger canvas than devoting a few pages or a chapter Hence, I did not want to superficially deal with it here, which would have done injustice to the subject. It should be my next adventure.

Though some of the issues debated upon in this book are futuristic, they are realistic. These issues will arrive and confront our society before 'We, the people can imagine. Hence, the law must move with the Internet rather than being fossilized in the past, living under the false shadow of precedents and principles of the pre-Internet era. Alvin Toffler in “The Third Wave" has said:

“So profoundly revolutionary is this new civilization that it challenges all our old assumptions. Old ways of thinking, old formulas, dogmas, and ideologies, no matter how cherished or how useful in the past, no longer fit the facts. The world that is fast emerging from the clash of new values and technologies, new geopolitical relationships, new life-styles and modes of communication, demands wholly new ideas and analogies, classifications and concepts. We cannot cram the embryonic world of tomorrow into yesterday's conventional cubbyholes. Nor are the orthodox attitudes or moods appropriate.”

I have consciously ensured that this book's weight is not intimidating and is not a typical legal commentary that is useful only for lawyers. The format of the book is designed in a manner interested in the subject can read it, including that any person lawyers, judges, legislators, policy-makers, law enforcement officials, I.T. people and students.

      • The Internet revolutionizes communication
      • The controller of the media in the Internet age
      • Article 19(1)(a) and the Internet
      • Quantifying freedom of speech and expression
      • Issues
      • Circumventor technologies versus State
      • Constitutional importance of education
      • The unfulfilled dream of free education in India
      • The virtual class-room
      • The Sarva Shiksha Abhiyan through the Internet
      • The Internet and reservation in education
      • India: A society divided by castes and occupation
      • Secularism: A pillar in the Constitution
      • Article 14: The shining star of the Constitution
      • A world of equality, secularism, fraternity and opportunity
      • Virtual Reality, the five senses and virtual joint family
      • The history of a company and the emergence of the virtual person

      • Legitimacy to sex-material
      • The law of obscenity in a nutshell
      • Pornography in the pre-Internet era
      • Pornography in the Internet-age: A limitless ocean
      • Relevance of the 'Hicklin' test of obscenity
      • A new legal model for the IT society
      • United States of America
      • Canada
      • United Kingdom
      • Australia

      • Filtered water versus filtered information
      • Filtering Software: Blocking speech and expression

      • "DPS-MMS!" case