On right to internet, Court ruling isn’t enough

Why in the News

Access to and use of the internet has moved from a service the state often cuts as its first policing tool to a fundamental right under Articles 19 and 21 of the Constitution. The Supreme Court ruling that made this declaration also tightened the rules on child sexual exploitation and abuse material (CSEAM) online. A right declared on paper does not by itself stop internet shutdowns.

What did the Court order on child abuse material online?

1. What CSEAM is: CSEAM is any image, video or text depicting or promoting the sexual abuse of children. The Court cited gaps in platforms’ compliance with the Information Technology Rules, which set their duties.
2. National database: The Court directed the government to build a national database of digital identifiers, codes that let a known abuse file be recognised without viewing it, like a fingerprint record.
3. “Known origin” takedown: Platforms must remove any upload that matches the database, even without verifying the match themselves. The Court suggested hefty fines for non-compliance.
4. Propensity test: Intermediaries, the platforms that carry users’ content, must judge material by its propensity to facilitate exploitation, meaning whether it is likely to help abuse children, even when it is not explicit.
5. The takeaway: Child safety needs more proactive state action, but such a database needs carefully built safeguards against misuse, set in law and institutions, not just the Court’s assurance.

What does a fundamental right to internet access change?

1. Two guarantees: Article 19 guarantees the freedom of speech and expression, and Article 21 the right to life and personal liberty. Internet access now sits within both.
2. Direct remedy: A citizen denied access can move the Supreme Court directly for enforcement, under Article 32, the right to constitutional remedies.
3. Limits on future laws: Any future law curbing screen time must stay within narrowly defined, constitutionally permissible limits.
4. Shutdowns as policing: Restricting the internet is often the state’s first policing measure, so the right matters most where it is most often curtailed.

Why may a declared right still fall short?

1. Expansion without enforcement: Scholars have long noted that the Court expands Article 21 faster than it steps in to secure the rights under it.
2. Rights on paper: Citizens are told they have a right to a speedy trial, clean air or safe roads, but cannot meaningfully invoke these in court when the state fails to deliver.
3. The shutdown test: The right must be applied when shutdowns are imposed unreasonably and disproportionately, with harm out of scale to the threat. The Court must then restrain the state, not defer the question.

Challenges

1. Frequent shutdowns: India often leads the world in local internet blackouts ordered to maintain public order. Eg. Repeated shutdowns in Manipur.
2. Weak earlier safeguards: Anuradha Bhasin v. Union of India (2020) ruled against indefinite shutdowns, yet shutdown orders continue with little review.
3. Over-removal: Removing database matches without verification can take down lawful content wrongly tagged as abuse material.
4. Vague standard: A “propensity” test leaves platforms guessing, so the threat of fines pushes them to remove more than the law requires.
5. Digital divide: A right means little to those without access. Eg. A 25% gender gap in rural mobile internet use.

Way Forward

1. Database law: Parliament should set rules on who adds identifiers to the database, how it is audited and how wrongful takedowns are appealed.
2. Shutdown review: Publish every shutdown order and review it within a fixed time for necessity and proportionality, as the Anuradha Bhasin guidelines require.
3. Clear guidance: The Ministry of Electronics and Information Technology (MeitY) should define the propensity test with examples so platforms apply it consistently.
4. User appeals: Give users a quick route to contest the removal of their content.

Conclusion

The ruling adds internet access to a growing list of rights the Court has declared but not always secured. Its worth will be tested the next time a State orders a disproportionate shutdown and a citizen asks the Court to lift it.

Back2Basics: Safe harbour for intermediaries

1. Meaning: Safe harbour shields an intermediary from legal liability for content its users post, under Section 79 of the Information Technology Act, 2000.
2. Condition: The shield holds only as long as the platform follows the due diligence duties in the IT Rules, 2021, such as removing unlawful content on a government order.
3. Larger platforms: Significant social media intermediaries, those with over 50 lakh users, carry extra duties, such as appointing resident compliance officers.

Matching Previous Year Question

“[2015, GS2, 12 marks] Does the right to clean environment entail legal regulations on burning crackers during Diwali? Discuss in the light of Article 21 of the Indian Constitution and Judgement(s) of the Apex Court in this regard.”