5.6 Right To Equality and Non-Discrimination

The right to equality on the internet can include equal access to the internet as well as the right to be treated equally and without discrimination while using the internet. Women and gender minorities are often discriminated against on the internet based on their identity. This can be in the form of online content that promotes gender stereotypes and/or through exposure to frequent online violence in the form of surveillance, harassment, stalking, identity theft, etc.1Internet Content and Equality between Men and Women. (n.d.). Council of Europe. https://www.coe.int/en/web/portal/internet-and-equality Gender-based hate speech is a pervasive problem faced by women and gender minorities, especially those at the intersections of multiple and overlapping marginalized identities. Gender-based hate speech is usually generated by and, in turn, engenders, biased stereotypes, patriarchal attitudes, and toxic political contexts. Prevalence of such speech makes online spaces hostile and restrictive for women, and impacts their freedom to express themselves in an uninhibited manner.

Further, the content that women post online is more likely to be shared without their consent, or be a trigger for targeted attacks against them. Women are, therefore, extremely cautious about what they post online and often police themselves, thus making their experience of the internet extremely different from that of cis-gender males.

5.6.1 Constitutional source of the right

Article 14 of the Indian Constitution guarantees everyone the right to equality. Further, Article 15 guarantees the right to non-discrimination on the grounds of one’s sex, while Article 15(3) empowers the state to make special provisions for the advancement of women and children. In NALSA v. Union of India (2014),2NALSA v. Union of India, (2014) SCC 438. the Supreme Court held that sex under Article 15 does not only refer to the biological attribute of being male or female. As such, the Article prohibits discrimination on the grounds of gender identity as well.

Securing the right to equality is essential to enjoying one’s freedom of expression under Article 19. The protection of equal rights and freedoms under Articles 14 and 15 is also essential for the realization of the right to life and personal liberty under Article 21 of the Constitution. In other words, violation of the right to equality, whether offline or online, leads to the automatic infringement of the other two rights.

The Madras High Court in Present Petition Has Been… v. Unknown (2020)3The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court. and P. Saravanakumar v. State Rep. (2010)4P. Saravanakumar v. State Rep., Crl.O.P.No.232 of 2013, order dated 5 August, 2019, Madras High Court. recognized that online violence limits women’s freedom of equality and right to dignity as enshrined in the Constitution. In the former case, the court also recognized the linkages between Articles 14, 19, and 21, when it observed that online violence denies the affected women’s right to equal participation in the online space and impinges on their constitutionally guaranteed freedom and dignity.

5.6.2 International sources of the right

5.6.2.1 Conventions

  • Universal Declaration of Human Rights (UDHR)5Universal Declaration of Human Rights (entered into force 1948). and International Covenant on Civil and Political Rights (ICCPR)6International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976).:
    Article 2 of the UDHR affirms that everyone is entitled to all the rights and freedoms set forth in the Declaration, without discrimination on the basis of race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Further, Article 7 guarantees that all are entitled to equal protection against any discrimination due to the violation of this Declaration and against any incitement to such discrimination. Article 3 of the ICCPR calls upon state parties to ensure the equal rights of men and women to the enjoyment of all civil and political rights set forth in the Covenant.
  • Convention on Elimination of All Forms of Discrimination Against Women (CEDAW):7Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981).:
    The Convention defines discrimination against women as "...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."8Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981), Article 1. To ensure equality for women and eliminate all forms of discrimination against them, CEDAW calls upon state parties to do the following:

    • Incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws, and adopt appropriate ones prohibiting discrimination against women;
    • Establish tribunals and other public institutions to ensure the effective protection of women against discrimination; and
    • Ensure elimination of all acts of discrimination against women by persons, organizations, or enterprises.9Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981), Article 2.
  • American Convention on Human Rights10American Convention on Human Rights: Pact of San José, Costa Rica, (entered into force on 22 November 1969).:
    According to Article 24 of the Convention, all persons are equal before the law and entitled to equal protection of the law without discrimination.

5.6.2.2 UN resolutions

  1. Freedom of Opinion and Expression: Mandate of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, Resolution adopted by the Human Rights Council on 19 June 2020 A/HRC/RES/43/411Freedom of Opinion and Expression: Resolution adopted by the Human Rights Council. (2020). UN Human Rights Council. A/HRC/RES/43/4. https://undocs.org/Home/Mobile?FinalSymbol=A%2FHRC%2FRES%2F43%2F4&Language=E&DeviceType=Desktop&LangRequested=False
  2. UN Human Rights Council Resolution on Protection of Freedom of Expression A/HRC/44/1212Freedom of Opinion and Expression: Resolution adopted by the Human Rights Council. (2020). UN Human Rights Council. A/HRC/RES/44/12. https://digitallibrary.un.org/record/3877197?ln=en
  3. The Promotion, Protection, and Enjoyment of Human Rights on the Internet: Resolution adopted by the Human Rights Council on 13 July 2021 A/HRC/RES/47/1613Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf
  4. UN Human Rights Council General Comment No. 34 Article 19: Freedoms of Opinion and Expression CCPR/C/GC/3414International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976), Article 19.
  5. Accelerating Efforts to Eliminate Violence against Women and Girls: Preventing and Responding to Violence against Women and Girls in Digital Contexts: Resolution adopted by the Human Rights Council on 5 July 2018 A/HRC/RES/38/515Accelerating Efforts to Eliminate Violence against Women and Girls: Preventing and Responding to Violence against Women and Girls in Digital Contexts: Resolution adopted by the Human Rights Council. (2018). UN Human Rights Council. A/HRC/RES/38/5. https://digitallibrary.un.org/record/1640463?ln=en

5.6.2.3 Declaration

  1. Declaration on the Elimination of Violence against Women16Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution 48/104. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women :
    The Declaration recognizes that violence against women is a manifestation of historically unequal power relations between men and women, and an obstacle to the achievement of equality, development, and peace.17Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution 48/104, Article 6. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women  Article 3 of the Declaration stipulates that women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in political, economic, social, cultural, civil, or any other sphere. These include the right to equality, the right to equal protection of law, and the right to be free from all forms of discrimination.18Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution 48/104, Article 3. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women  Further, the Declaration calls upon states to condemn all forms of violence against women without invoking any custom, tradition, or religious consideration to avoid their obligations.19Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution 48/104, Article 4. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women  States are also called upon to pursue all appropriate means and without delay, to pursue a policy for eliminating violence against women.20Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution 48/104, Article 4. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women 

5.6.2.4 International advocacy efforts

  1. The Charter of Human Rights and Principles for the Internet21Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf :
    Under the Charter, the right to non-discrimination in the enjoyment of all rights on the internet includes equality of access to the internet and opportunities for effective use, with special attention to the needs of marginalized groups and gender equality.22Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p.16. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf On gender equality, the Charter states that women and men must have equal rights to learn about, define, access, use, and shape the internet.23Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf Women must be able to have full participation in all areas related to the development of the internet to ensure gender equality.24Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf Further, the Charter clarifies that nothing in it may be interpreted as preventing affirmative action designed to ensure substantive equality for marginalized peoples or groups.25Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf
  2. Feminist Principles of the Internet26Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles:
    These principles emphasize “enabling more women and queer persons to enjoy universal, acceptable, affordable, unconditional, open, meaningful and equal access to the internet”.27Access, Feminist Principles of the Internet. (2016). Association for Progressive Communications.  https://feministinternet.org/en/principles They also call for putting an end to the issue of online harassment and technology-related violence.28Violence, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles

Footnotes

Sub-sections on this page: