5.4 Right To Public Participation

5.4.1 Constitutional source of the right

The right to public participation is not expressly guaranteed as a fundamental right under the Indian Constitution but it flows from other fundamental rights guaranteed such as the right to equality and non-discrimination (Articles 14 and 15); the right to life and personal liberty (Article 21); and the various freedoms guaranteed under Article 19, such as the right to freedom of speech and expression, the right to practice any profession or to carry on any occupation, trade, or business, the right to form associations or unions, etc. Together, these rights create the enabling conditions for public participation, whether online or offline. For instance, in Kamil Siedczynski v. Union of India (2020),²Kamil Siedczynski v. Union Of India And Another, W.P. No.4432(W) of 2020, judgment dated 18 March 2020, Calcutta High Court. the Supreme Court observed that the expression of one’s free will through political participation is a part of their right to life and personal liberty. Similarly, the right to information or the right to know, which the Supreme Court has interpreted to be part of Article 19(1)(a) and Article 21, is crucial for an individual to effectively participate in public-political life.

In some cases, the court has acknowledged the impact of online violence on women’s right to public participation. For example, in Present Petition Has Been… v. Unknown (2020), the Madras High Court correctly recognized that the act of the accused denied the affected women’s right to equal participation in the online space and impinged on their constitutionally guaranteed freedom and dignity.³The Present Petition Has Been ... v. Unknown, Crl. O.P. No.12604/2020, judgment dated 27 April 2021, Madras High Court.

5.4.2 International sources of the right

5.4.2.1 Conventions

1. Universal Declaration of Human Rights (UDHR)⁴Universal Declaration of Human Rights (entered into force 1948). and International Covenant on Civil and Political Rights (ICCPR):⁵International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976).:
   Both the UDHR and the ICCPR guarantee certain fundamental human rights which also extend to the internet and are crucial for creating an enabling environment for women’s public participation. These include the right to equality and non-discrimination,⁶Universal Declaration of Human Rights (entered into force 1948), Article 7; International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976), Article 26.the right to freedom of expression and the right to seek information,⁷Universal Declaration of Human Rights (entered into force 1948), Article 19; International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976), Article 19.the right to freedom of association,⁸Universal Declaration of Human Rights (entered into force 1948), Article 20; International Covenant on Civil and Political Rights, opened for signature 1966 (entered into force 23 March 1976), Article 22. the right to education,⁹Universal Declaration of Human Rights (entered into force 1948), Article 26. and the right to participate in the cultural life of the community.¹⁰Universal Declaration of Human Rights (entered into force 1948), Article 27.
2. Convention on Elimination of All Forms of Discrimination Against Women (CEDAW):¹¹Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981).:
   CEDAW calls upon state parties to take appropriate measures to eliminate discrimination against women in the political and public life of the country. Apart from participation in elections, this also includes ensuring that women have equal opportunity to participate in the formulation of government policies and their implementation as well as in NGOs and associations concerned with the public-political life of the country.¹²Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981), Article 7. States are also required to take appropriate measures to eliminate discrimination against women in other areas of economic and social life, including participation in recreational activities, sports, and cultural life.¹³Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 1979 (entered into force 3 September 1981), Article 13.

5.4.2.2 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/43/4¹⁴Freedom 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/44/12¹⁵Freedom 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/47/16¹⁶The Promotion, Protection and Enjoyment of Human Rights on the Internet: Resolution. (2021). Human Rights Council. A/HRC/RES/47/16. https://digitallibrary.un.org/record/3937534?ln=en
4. UN Human Rights Council General Comment No. 34 Article 19: Freedoms of Opinion and Expression CCPR/C/GC/34.¹⁷International 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/38/5¹⁸Accelerating 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

5.4.2.3 Declarations

1. Declaration on the Elimination of Violence against Women:¹⁹Declaration 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:
   This Declaration recognizes that violence against women impairs or nullifies their enjoyment of rights and freedom, especially the right to life, the right to liberty and security, the right to favorable conditions of work, etc.²⁰Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution, Article 3. 48/104. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women Violence also negatively impacts their opportunity to achieve legal, social, political, and economic equality in society. Hence, the Declaration calls upon states to pursue all appropriate measures to eliminate violence against women, such as strengthening law enforcement, formulating national plans of action to promote the protection of women, undertaking educational reforms, etc.²¹Declaration on the Elimination of Violence against Women. (2013). General Assembly resolution, Article 4. 48/104. https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-elimination-violence-against-women
2. The European Declaration on Digital Rights and Principles for the Digital Decade:²²Declaration on European Digital Rights and Principles. (2022). European Commission. https://digital-strategy.ec.europa.eu/en/library/european-declaration-digital-rights-and-principles :
   This Declaration recognizes the right to have access to a trustworthy, diverse, and multilingual digital environment that can contribute to pluralistic public debate and effective participation in democracy in a non-discriminatory manner.²³Declaration on European Digital Rights and Principles. (2022). European Commission, Para 12. https://digital-strategy.ec.europa.eu/en/library/european-declaration-digital-rights-and-principles Further, it recognizes the role of online platforms in supporting free democratic debate and calls upon large online platforms to take steps to mitigate the risks stemming from the functioning and use of their services, including risks of misinformation and disinformation campaigns, and protect freedom of expression.²⁴Declaration on European Digital Rights and Principles. (2022). European Commission, Para 15. https://digital-strategy.ec.europa.eu/en/library/european-declaration-digital-rights-and-principles To realize this right, the Declaration also calls upon member states to take proportionate measures to tackle all forms of illegal content by respecting freedom of expression and information and without establishing any general monitoring obligations or censorship.²⁵Declaration on European Digital Rights and Principles. (2022). European Commission, Para 15.c. https://digital-strategy.ec.europa.eu/en/library/european-declaration-digital-rights-and-principles They are also required to take steps to create a digital environment where people are protected against disinformation, information manipulation, and other forms of harmful content, including harassment and gender-based violence.²⁶Declaration on European Digital Rights and Principles. (2022). European Commission, Para 15.d. https://digital-strategy.ec.europa.eu/en/library/european-declaration-digital-rights-and-principles

5.4.2.4 International advocacy efforts

1. The Charter of Human Rights and Principles for the Internet:²⁷Internet 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 :
   This Charter enumerates several rights on the internet that together enable public participation, such as the right to access the internet,²⁸Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p.15.  https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdfthe right to non-discrimination in internet access, use, and governance,²⁹Internet 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 the right to liberty and security on the internet,³⁰Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p.17. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf freedom of expression and information on the internet,³¹Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p.18. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf the right to education on and about the internet,³²Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p.22. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf and the right to culture and access to knowledge on the internet.³³Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet.OHCHR, p.22. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf The Charter also calls upon states to ensure that everyone has the right to form, join, meet, or visit the website or network of an assembly, group, or association for any reason.³⁴ Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p.19. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf Further, it provides for the right to online participation in public affairs, which includes the right to equal access to electronic services and the right to participate in electronic governance.³⁵Internet Rights and Principles Coalition. (2014). The Charter of Human Rights and Principles for the Internet. OHCHR, p. 26. https://www.ohchr.org/sites/default/files/Documents/Issues/Opinion/Communications/InternetPrinciplesAndRightsCoalition.pdf
2. Feminist Principles of the Internet:³⁶Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles:
   This document enumerates several principles for realizing a feminist internet that enables public participation by women and gender minorities. These include protecting unrestricted access to information,³⁷Information, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles ensuring the participation of women in the coding and design of platforms,³⁸Usage, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles; Open Source, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles defending the freedom of expression, including sexual expression of women and gender minorities,³⁹Expression, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles and safeguarding the right to be anonymous on the internet.⁴⁰Anonymity, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles The document also highlights that the internet is a space for resistance and the struggle for a feminist internet forms part of a continuum of resistance in other spaces, public, private, and in-between.⁴¹Resistance, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles The document also emphasizes the power of the internet in amplifying women’s narratives⁴²Amplify, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles and lived realities and enabling sustained feminist movement building.⁴³Movement Building, Feminist Principles of the Internet. (2016). Association for Progressive Communications. https://feministinternet.org/en/principles