By Divij Joshi

As the COVID-19 pandemic unfolds, with India among the jurisdictions undertaking a complete lockdown on social activity, ‘social distancing’ has viscerally brought to fore our increasing dependency on the internet for our lives and livelihoods. The Home Ministry’s guidelines on the maintenance of essential services during this lockdown also recognises that ‘internet services’ and ‘e-commerce’ are essential for sustaining economic and social life during this time. However, the broader legal and institutional frameworks in India fail to sustain and provide for the internet as critical infrastructure and as a public utility. 

The cavalier manner with which internet access is deliberately withdrawn indicates that governments in India continue to consider access a privilege and not a right. This conception of the internet fails to acknowledge how the internet acts as the infrastructure enabling downstream access to crucial rights and public goods. Internet restrictions in Kashmir persist despite the Supreme Court’s recognition of how these restrictions curtail fundamental rights of speech and expression and to carry on trade, even though wholesale shutdowns have been replaced with a severely restricted internet of whitelists and throttled capacity. This needs to be urgently contended with – reports have already emerged about the difficulties being faced by public health workers in accessing critical healthcare information, compounding the harsh difficulties already caused by months of impeded internet access. 

The present situation also threatens to exacerbate India’s ‘digital divide’, denying access to public goods to those without internet access. The delivery of government services, in particular, is increasingly dependent on internet connectivity at the household level. The Aadhaar project relies to a large extent on internet connectivity at the Point-of-Sale level, which routinely fails. Similarly, state government schemes for ‘digitising’ welfare like Andhra Pradesh’s e-Pragati, assume universal internet access and availability, which is far from the case in India.

While some countries have recognised the internet access as a right and have framed the regulation of the market to ensure universal access, India’s own network infrastructure is highly dependent on an increasingly concentrated market for internet service providers. This can have debilitating – the monopolisation and lack of market regulation of internet infrastructure in the USA, for example, has resulted in many areas and populations being underserved or priced out of the market, which is aggravated as businesses and schools move online during this crisis.

The crisis also highlights the role that platform workers play in sustaining the internet, including social media, logistics, transport and delivery services. The disruption of this labour activity over the last month is felt both in the chains of commerce, as well as more ‘dematerialised’ aspects of our networked environments – as Facebook and YouTube laid off content moderators who police and remove misinformation from their social networks, there has been a correlated increase in faulty automated censorship on these platforms.

Most platform-based delivery and logistics workers continue to operate in precarious situations, even while they remain crucial nodes in the supply and maintenance of essential goods and services in this emergency. Much of platform-based labour is informal, without the traditional legal protections that our labour regulations offer. Even as the Government of India advises state governments to treat delivery workers as ‘essential services’ during this disaster, our laws and institutions have failed to extend social protections to them, worsening their precarity in this situation.  

The infrastructure on which public life is dependent is generally ‘invisible’ – its importance is disregarded – until it breaks. This continuing and potential breakdown must be accounted for and guarded against by our laws and institutions, which requires, foremost, for them to begin considering the internet as infrastructure and as a public utility. This framing charges democratic public institutions with the maintenance of the internet’s infrastructural components – including its social and institutional components – to ensure equitable access to the internet. 

Elevating the internet to the status of public utility means recognising its central role in sustaining social life and ensuring fundamental rights. It requires urgent reconsideration of the manner in which internet access is deliberately withdrawn by state and private institutions, by taking into account its debilitating effect on social life. It also requires governments to commit to universal service obligations and expand access to mobile and broadband internet in underserved areas, ensuring that commercial imperatives are not the only determinants of internet access and that democratically controlled public utilities, like the ambitious BharatNet Project, can prioritise serving underserved populations. Finally, it requires a holistic approach towards the internet’s infrastructure – considering both its physical and its social and institutional components – and committing to maintaining social infrastructure that sustains networks, for example, by recognising the role of platform workers and extending protections to similar work.

Certain institutional and legal responses have already invoked this conception of the internet. The Kerala High Court and Supreme Court of India have considered internet access as a component of fundamental rights – recognising its importance in sustaining free expression, education, and employment, among other social goods. The requirement of non-discrimination of internet content by network providers, known as ‘network neutrality’, draws from this tradition as well, to ensure that network service providers operate on a principle of equitable treatment by making structural changes to the operation of network infrastructure. In light of the CoVid-19 pandemic, the beleaguered state-owned service provider BSNL has opened up free broadband connections to sustain work from home habits – indicating the importance of having a public alternative to private network providers. 

As we reconsider our conceptions of the internet’s social and public value during a global pandemic, this crisis should serve to jolt our laws and institutions to recognising the crucial role the internet plays not merely in times of emergency or disruption, but as a routine necessity sustaining social life and individual freedoms. 

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Divij Joshi is a lawyer and a legal researcher, currently researching artificial intelligence and automated systems, as a Mozilla Tech Policy Fellow. He can be reached on Twitter at @divijualsuspect.