Fundamental Rights and Internet Gatekeepers- A New Take on Judicial Approach
Fundamental Rights and Internet Gatekeepers- A New Take on Judicial Approach
Technology has long acted as an agent of disruption across all spheres: social, economic, and legal. Naturally, constitutional rights jurisprudence is not untouched by industrial revolution 4.0. Many recent decisions of constitutional courts, globally, either emanate from or relate to rapid technological advancements and their impact on fundamental rights.
The Indian Constitution has dynamically evolved over the past 73 years, with recognition to newer rights, including, privacy, marriage, and access to internet, as certain inalienable fundamental rights subject to reasonable restrictions. When longstanding constitutional doctrines are confronted with emerging technology, two possible outcomes emerge: (a) Courts mould the existing constitutional principles to apply to new scenarios, or (b) obsolescence leads to replacement of older doctrines by newer evolving ones.
Historically, courts have enforced constitutional rights against state actors alone. The deviation to this is the recognition of a new class of rights i.e., horizontal rights, where constitutional rights are enforced even against non-state actors. With states moving from laissez faire to welfare governance models, the shift from a vertical enforcement of fundamental rights against the State to a horizontal application appears to be a pragmatic adoption to ensure that is a more robust remedy so that fundamental rights are not unduly trampled. Keeping this in mind, countries like South Africa, with a newer constitution, recognise a direct horizontal effect and prohibit any person from unfairly discriminating against others. Certain other countries with older constitutions such as USA, Ireland, Canada, Germany and EU have adopted indirect horizontal effect to varying degrees either through judicial decisions, or through legislations.
In India, the claims for fundamental rights violation against non- state actors is either through constitutionally enacted subjects, or through enacted legislations. A direct horizontal enforcement is seen under Articles 15(2) (access to public places), 17 (untouchability), 23 (forced labour) and 24 (employment of children), with the intent of retaining the constitutional promise of socio- economic equality. However, with increased public-private interface and an overwhelming impact of non-state actors on fundamental rights, particularly Article 19 and Article 21, the expanse of horizontal enforcement has widened. Courts have awarded damages and passed directions against non-state actors for violation of right to clean environment, to victims of assault, for discrimination by private airlines, private colleges discharging public functions in providing education, obligated private employers to protect fundamental rights of women at workplace, and even held doctors, at government hospitals or otherwise, as dutybound to protect life under Article 21. The underlying principle in these cases is two-fold: (a) private players performing public duties, or (b) private players performing statutory functions which impact citizens’ rights.
A close reading of Part III provisions demonstrate a peculiar distinction, possibly purposefully retained by the framers. While certain rights under Part III are directives against the State, others such as Articles 15(2)(a) and (b), 17, 20(2), 21, 23, 24, 29(2) are conferred on persons/ citizens, without merely being directed against the State. Ordinarily, violation of any other fundamental rights besides the above, would entitle an individual to pursue common law remedies against non-state actors, in the absence of statutory protection. This position was until the Supreme Court paved the way for horizontal effect in the realm of privacy rights in Justice KS Puttuswamy (I), and cast a duty on the State and non-state actors to protect right to privacy. The Court also recognised that State is duty bound to protect right to privacy even by non-state actors through legislative intervention.
Finally, in 2023, a constitution bench in Kaushal Kishore v. State of Uttar Pradesh affirmatively held Article 19 or 21 rights as enforceable against persons other than State or its instrumentalities, thus, bringing a paradigm shift in Part III enforcement against private actors. The ratio is premised on the modern scenario where State monopoly is replaced by private players such as intermediaries/ ISPs. Importantly, the judgment calls for setting a legal framework to define constitutional torts which may be remedied through judicial precedents.
Today, infringement of right to privacy, speech, trade, or business on the internet is often by private players and if fundamental rights cannot be enforced against non-state actors, the right will be compromised. Dominant internet gatekeepers deal with data, intrinsically affect free speech, and exercise a say in market accessibility and right to business and trade. In the absence of a data protection legislation, individuals are resorting to writ jurisdiction to enforce right to be forgotten against private players, and even challenged WhatsApp’s privacy policy as being violative of right to privacy.
We lie at the cusp of judicial evolution propelled by technological advancement, where enforcement of fundamental rights against internet gatekeepers is necessary to meet a statutory void or uncertainty. Undoubtedly, the State is under a positive obligation to ensure that fundamental rights are protected even by non-state actors. However, as technology trumps legislative endeavours, it is only time that Courts create guidelines and enforce horizontal rights against private players to effectively protect rights that lie at loggerheads with technology and commercial exploitation.
Words: 827