By: Prakhar Dwivedi* |
INTRODUCTION
The telecommunication sector has seen a wide range of changes since the launch of the 1st generation networks. The first generation, i.e., 1G networks were merely for the voice calls, which in itself was a great discovery, as people for the first time in history were able to connect with each other leaving the distance of miles behind. Then came the second generation, i.e., 2G networks that gave access to the internet world for the first time. However, this was yet not enough as there were many lacunas left like lagging in video calling or buffering while streaming online videos. So, to fill the gaps left behind, third and fourth generations, i.e., 3G and 4G networks, came which enhanced the network and solved the problems that exist.
However, these advancements came with harmful effects on health. The harmful radiation from this technology started harming humans as well as animals and birds.[1] These radiations caused severe harm to the environment and furthermore led to severe diseases.
These radiations are causing harm to the environment and also to the health of people. Hence, they stand in violation of “Article 21 of the Indian Constitution” as the harm to the health of the people is the infringement of the Right to Health which is part of the right to life and personal liberty as enshrined under Article 21.[2] Today, these radiations are a cause of great distress and have been recognised as harmful in India and also in other countries across the globe.[3] The city of Brussels (Belgium), in 2019 for the first time, halted the rolling out of the 5G networks due to its severe influence on the health of individuals, and the Environment minister of Brussels, Céline Fremault even stated that she is not going to allow the technology if it is going to harm the citizen.[4]
The present article discusses the evolution of 5G Networks and their harmful impact on the environment in light of the current aftermath created by the Actress Juhi Chawal.[5] This article is divided into four parts, while the first part explains the inception and technical setup of 5g Networks, the second part describes the role of Right to Health as a Fundamental Right (Article 21), the third part highlights the plea raised by the Actress and the opinion of the Delhi High Court and the fourth part provides the analysis of the Issue.
EXPLAINING THE FIFTH-GENERATION NETWORKS (5G)
As the name suggests, 5G is the fifth generation wireless mobile cellular network with high speed and capacity, first began at NASA in 2008 and simultaneously at some places around the world. [6] However, with the growing world, the need for a fast network, low latency, and quick access to the world of the internet in the vast network traffic is required. Considering such requirement, in April 2019 United States of America and South Korea launched their 5G services for the public in a selected location.[7]
The 5G network furnishes the speed, which is 100 times faster than the current 4G networks.[8] Apart from providing fast internet to our phones, it also provides other services like rich multi-media connectivity, connected homes, and their appliances, self-driving cars, telesurgery, remote surveillance, telemedicine.[9]
In order to comprehend the 5G Network, it’s necessary to first comprehend the spectrum. All forms of electromagnetic radiation are included in the electromagnetic spectrum (The electromagnetic spectrum is a continuum of all electromagnetic waves arranged according to frequency and wavelength). The radio spectrum spans from “30 hertz (Hz) to 300 gigahertz (GHz)”, and is utilised for telephony, broadcast, and aviation communication, among other things “(1 GHz is equal to 1 billion hertz)”.[10]
The band (A band is a range of frequencies in the radio electromagnetic spectrum) which the 5G uses is divided into three different ranges of microwaves which are:
Low Band Microwaves,
Mid Band Microwaves, and
High Band Microwaves.
The Low-band spectrum (here spectrum relates to the radio frequencies) “(600 million hertz (MHz) to 900 MHz)” produces longer waves and can travel a longer distance. However, the waves grow shorter and shorter as they progress “from mid-band (2.5GHz to 4.2GHz) to high-band (24GHz to 47GHz)”, as in higher band the waves become shorter and have the capacity to transmit a large amount of data in a given time but lose the capacity to travel longer.[11]
While low-band has a good penetration rate through walls and solids, its speed is restricted to “100 megabits per second (Mbps).” Mid-band spectrum speed can approach “1 Gbps”; but it cannot easily pass through structures. High-band, also known as millimetre wave (mm Wave), offers extremely low latency and can transmit data at speeds of up to 10 Gbps; yet they have the disadvantage of being weaker and unable to penetrate through the walls and solids easily.[12]
The 5G network is only compatible with 5G enabled devices and has very small network coverage, so it required the cell (Hubs or Nodes) at every 10-100 meters in direct sight of and clear weather for faster connectivity.
These cells help in making the fast network at small coverage and thus require a very large number of installments of cells. These cells further divide into three types:
Femtocells,
Picocells, and
Microcells with different network coverages as 10m, 20m, and 2km, respectively.
There are also 5G antennae with the ability of direct and long-range transmission.
CURRENT LEGAL BATTLE
A few months ago, the Department of Telecom (DoT), Ministry of Information and Technology sanctioned the trials of 5G technology and spectrum by telecom corporations like “Reliance Jio, Bharti Airtel, Vodafone Idea, and MTNL”, to be directed in locations like “Delhi, Mumbai, Kolkata, Bengaluru, Gujarat, and Hyderabad.”[13]
In regard to these trials, Bollywood actress, Juhi Chawla, filed a plea in Delhi High Court in contrast to the rollout of 5G cellular network in India, seeking the restraint in licensing and spectrum allocation on the grounds that the electromagnetic radiation emerges from the spectrum can cause short and long term effects on humans, plants and environment at large.[14]
a. Arguments in the Plea
The plea of the petitioners highlighted the hazards intricate in implementing the 5G networks, like the increased radiation and its harmful impact on the environment. While the petitioners maintained that they are not against the implementation of technology advancements, which they themselves use and enjoy, but they are specifically concerned about the Radio Frequency radiation from cellular network towers and wire-free gadgets.[15]
Due to the enormously damaging and detrimental impact of the radiations on the health and safety of not only humans but also of animals and birds, which is no less than “10 to 100 times larger” than what subsists currently, the plea asked for direction from the Hon’ble Court to the defendant that they must certify to the petitioners and the community at large, that the rollout of 5G is safe for everyone and produce the reports for the same and if any such research is not being conducted then must conduct a proficient inquiry devoid of any private concern and declare that the implementation will be of no harm to humans and the upcoming generation and the whole environment at large.[16]
b. Delhi High Court’s Verdict
Justice C Hari Shankar first heard the case and the case later was transferred to the bench of Justice J.R. Midha for hearing.
The bench highlighted some of the technical glitches in the plaint in terms of violation of several laws of the Land, like:[17]
§ The notice was not issued under Section 80 of the Code of Civil Procedure, 1908; nonetheless, the Government must be notified under “Section 80(1) of the Code of Civil Procedure” before the complaint against it may be filed. The purpose of the notice under Section 80(1) is to provide the government a chance to evaluate the situation, make apologies, and resolve the claim without going to court. Section 80 was designed to promote justice and protect the public interest by avoiding needless litigation.
§ Declaratory actions are covered by “Section 34 of the Specific Relief Act, 1963.” A person who is permitted to any lawful character can file a lawsuit against someone who refuses or wishes to deny such right. The plaintiffs in this case never approached the defendants to assert any rights, thus the defendants had no reason to reply or dispute the plaintiffs’ claims. In light of this, the plaintiffs’ requests for declaratory relief seem questionable.
§ The substances of any document shall not be made forth in the plaint unless the specific terms of the document or any part thereof are relevant, according to “Order VI Rule 9 of the Code of Civil Procedure.” The plaintiffs, on the other hand, have violated “Order VI Rule 9 of the Code of Civil Procedure” by reproducing the papers in the plaint III. The plaint is packed with frivolous, scandalous, and vexatious allegations that are likely to be dismissed under “Order VI Rule 16 of the Code of Civil Procedure.”
§ The plaintiffs have combined many causes of action without adhering to the Code of Civil Procedure’s Order II Rule 3.
§ The plaintiffs have not validated the plaint, which is required by the Code of Civil Procedure’s Order VI Rule 15.
In toto, Delhi High Court ruled that the plaint is defective and not maintainable; and observed that the present plea is nothing but a publicity stunt, noting the point that how the Bollywood actress put web-link of the hearing on social media and thus for the abuse of process of law, for which the bench imposed the cost of ₹20 Lakh on the actress and other plaintiffs.[18]
Lately, on 7th July while hearing the Chawla application with regard to the refund of court fees and waiver of costs and replacing the word “dismissed” with “rejected” the court said that it is shocking that the plaintiff is not willing to deposit the fine as they already choose the lenient route by not initiating the contempt proceedings and granted further one week to deposit the fine.
RIGHT TO HEALTH AS A FUNDAMENTAL RIGHT
The “World Health Organization (WHO)” defines health as a condition of whole “physical, mental, and social well-being”, not only the absence of sickness.[19] The WHO goes on to say that[20] it is the state’s legal responsibility to provide all of its citizens with uniform access to “timely, acceptable, and affordable health care of appropriate quality, as well as the underlying determinants of health, such as safe and potable water, sanitation, food, housing, health-related information and education, and gender equality.” This right, which is a logical result of supporting public health in India, is guaranteed in several ways under the Indian Constitution.[21]
The state is also required, among other things, under the Directive Principles of State Policy stated in section IV, to:
Ensure the well-being of its citizens (Art.38)
Safeguard their health and strength against harm (Article 39(e)).
To provide public aid, which is mostly for the sick and disabled (Article 41).
To provide reasonable and humane working conditions as well as maternity leave (Article 42).
To enhance people's nutrition and standard of living, as well as public health (Article 47).
As far as Part III of India’s constitution is concerned, it does not specifically recognize the right to health as a fundamental right. However, this has been incorporated into the “Fundamental Right to Life and Personal Liberty (Article 21)” by judicial interpretation and is now regarded as an inseparable element of the Right to Life. Article 23, which prohibits human trafficking and child labour, also indirectly provides for the protection of the Right to Health.
The apex court of the country has also played an important role in safeguarding the public’s health. It has been explicitly stated in “Francis Coralie Mullin v. The Administrator, Union Territory of Delhi”[22], that the term “life” in Article 21 refers to a life of “human dignity, not only survival or animal existence.”
According to “Bandhua Mukti Morcha v. Union of India”, the “right to live with human dignity”, contained in Article 21, is derived from the “Directive Principles of State Policy”, and so includes health protection.[23] Furthermore, it has been established that the right to health is inextricably linked to the right to life and that the government has a fundamental responsibility to provide health care.[24]
The Supreme Court supported the broader meaning of the right to life in “Unni Krishnan v. State of Andhra Pradesh”, stating that Article 21 is now regarded as an inseparable element of the right to health.[25] The scope of Article 21 was further broadened in the case of “Paschim Banga Khet Mazoor Samity v. State of West Bengal”, when the court declared that it is the government’s obligation to give appropriate medical help to everyone and to strive for the general welfare.[26] In “Chameli Singh v. State of Uttar Pradesh’, the court declared that for a decent and civilised existence, the right to food, a good environment, and medical treatment are all covered.[27]
Furthermore, the aspect of the right to health can be seen through the lens of Article 19. The basic right of all citizens to practice any profession, carry on any employment, trade, or business is subject to limits established in the public interest under Article 19 (1) (g) of the Indian Constitution (6). In the case of “Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police”, the Hon’ble Supreme Court decided that Article 19 (1) (g) does not protect any freedom that jeopardizes the community’s safety, health, or peace.[28]
Other health-related clauses can be found in the “11th and 12th schedules” of India’s constitution, in addition to the DPSP.[29]
India has also ratified the “International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social, and Cultural Rights.” For Article 21, the Supreme Court ruled that it must be construed in accordance with international law when it comes to human rights.[30] The Supreme Court also referenced “Article 25 [2] of the Universal Declaration of Human Rights and Article 7 (b) of the International Covenant on Economic, Social, and Cultural Rights” in supporting a worker’s right to health.[31]
Since the right to health is inextricably linked to the right to life, it is a basic right guaranteed to every Indian citizen under Article 21 of the Indian Constitution. We owe the acknowledgment of this right to the Supreme Court of India, which logically expanded its understanding of the right to life to encompass the right to health through a series of court decisions. As a result, it is the State’s responsibility to safeguard the public’s health, and the Central Government and various State governments should adopt appropriate and proactive steps to preserve the public’s health.
ANALYSIS
The millimetre wave from the 5G spectrum with a high range of frequency can cause several harms to humans and according to the report of PubMed[32] in 2017 which states that the mobile frequencies between 1.8-2.2 GHz can cause tissue heating according to WHO[33] and also in a study done by “International Agency for Research on Cancer (IARC)” in 2011 it has been said that the EMFs are possibly carcinogenic which can cause cancer and according to the research done by the “Centre for Environment and Vocational Studies of Punjab University”, which found that the sparrow’s eggs, which were kept in the radiation of cell tower for about 5-30 minutes, were disfigured[34], if the egg can disfigure in such a short time then what will happen when the large base stations with a large number of cells of 5g will be installed everywhere around us and which is a clear violation of the right to health of citizens which is also the infringement of Fundamental Right (Article 21) of the Constitution of India.
However, WHO says that the data about the 5g we have at present is not sufficient for the determination of the harm which will be caused by 5g and said that it will release its own report in 2022.
The rollout of 5G Network, as described in the above-mentioned studies, clarifies that it is capable of causing major harm to the environment as well as to the Human Beings, which is not something to be ignored and is really need to be taken seriously by the authorities responsible for the rollout.
Similarly, the act of the Delhi High Court of dismissing the plea of Juhi Chawla on some technical grounds (for the violation of several provisions of the Code of Criminal Procedure and Specific Relief Act) is somewhat not a responsible act on behalf of the authorities.
Since, the matter is of substantial importance as it involves harm to the health of the people which gives birth to the infringement of the Right to Health (A Fundamental Right), this dismissal of the plea shows that the High Court believes that the matter is trivial, however, the High Court should instead of dismissing the plea, could have asked the plaintiff to make corrections in the plaint and also taking the matter seriously, should have asked for the substantial inquiries and studies into the matter and only if the results came in the favour of public at large and the environment than only the rollout of 5G should be welcomed.
Further, if the results do not come in favour of public health, then we should not forget that the rollout of 5G is important for the technical advancement of our Country. However, such technical advancement should not be reached by harming the health of the community, a matter of huge concern. The Constitutional Court should find the way out, balancing both, the public health and the technical advancement of the country, as I believe these are some areas where we grievously need the assistance of the court.
CONCLUSION
Having discussed the advancement and advantages of the cellular network from its invention to the current situation, it seems that the saying of Vernor Vinge is going to be true as he said that “it would signal the end of the human era, as the new superintelligence would continue to upgrade itself and would advance technologically at an incomprehensible rate” and it seems that the new 5G technology is going to affect the health of human and will infringe the basic rights of people.
Some people tried to bring the issue in front of everyone and by seeking the help of courts but it seems that they need a little more preparation to force the authorities to analyse the issue thoroughly.
As a developing country, we never discourage any technology that brings our nation to the level of other nations. We are always in support of new technology and welcome all new technologies for our growth, but the thing that is more important than this is the citizens' health, because as a democratic nation, India is for the people, by the people, and of the people, as stated in the preamble.
Hence, as discussed above, technology is developing and so we are but we need to take make sure that we should not turn blind to technological advancement and leave behind its impact on the health of people and this whole environment. The petition made by the actress might be having some technical glitches due to the violation of procedural and other laws but the High Court or Supreme Court should review this judgement and for being on the safer side, pass some order for the inquiry into the impact of this new 5G technology over the health of the nation.
***
*The author is a 2nd-year student at Jiwaji University, Gwalior.
[1] Claire Curran, What Will 5G Mean for the Environment? University of Washington (June 17, 2021, 9:29 PM), https://jsis.washington.edu/news/what-will-5g-mean-for-the-environment/.
[2] Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.
[3] Environmental Health Trust, Fcc (June 17, 2021, 9:29 PM), https://ecfsapi.fcc.gov/file/10122280631517/EHT%20%205G%20Open%20Letter%2012_9_2020-2.pdf.
[4] Radiation concerns halt Brussels 5G development, for now, The Brussels Times, (June 11, 2021, 9:29 PM), https://www.brusselstimes.com/brussels/55052/radiation-concerns-halt-brussels-5g-for-now/.
[5]Delhi High Court dismisses Juhi Chawla’s petition on 5G, The Hindu (June 04, 2021, 9:29 PM), https://www.thehindu.com/news/national/delhi-high-court-calls-juhi-chawlas-suit-against-5g-technology-defective-says-filed-for-media-publicity/article34706375.ece.
[6] Sandhya Ramesh, Juhi Chawla says 5G is not safe, but what do experts say? A fact-check on how the tech works, The Print (June 04, 2021, 9:29 PM), https://theprint.in/tech/juhi-chawla-says-5g-is-not-safe-but-what-do-experts-say-a-fact-check-on-how-the-tech-works/670287/.
[7] When was 5G introduced? Verizon (June 17, 2021, 9:29 PM), https://www.verizon.com/about/our-company/5g/when-was-5g-introduced; https://www.sktelecom.com/en/press/press_detail.do?idx=1451, verizon announces that they introduced their 5g for the customers on 3 april 2019 for the first in the world in certain areas of chicago and minneapolis; SK Telecom Announces its 5G Achievements and Plans on the First Anniversary of 5G Launch, SK Telecom (June 17, 2021, 9:29 PM), https://www.sktelecom.com/en/press/press_detail.do?idx=1451.
[8] Renee Cho, The Coming 5G Revolution: How Will It Affect the Environment? Columbia Climate School (June 17, 2021, 9:29 PM), https://news.climate.columbia.edu/2020/08/13/coming-5g-revolution-will-affect-environment/; Shruti Dhapola, Explained: Juhi Chawla’s lawsuit in Delhi HC against 5G and debate around harmful effects of mobile phone radiation, The Indian Express (June 04, 2021, 9:29 PM), https://indianexpress.com/article/explained/juhi-chawla-5g-india-harmful-effects-for-humans-7340640/.
[9] Is 5G Harmful to People? Healthline (June 04, 2021, 9:29 PM), https://www.healthline.com/health/is-5g-harmful.
[10] Renee Cho, The Coming 5G Revolution: How Will It Affect the Environment? Columbia Climate School (June 17, 2021, 9:29 PM), https://news.climate.columbia.edu/2020/08/13/coming-5g-revolution-will-affect-environment/.
[11] Ibid.
[12] Ibid.
[13] DoT nod to telcos for conducting 5G technology and spectrum trials, Business Standard (June 04, 2021, 9:29 PM), https://www.business-standard.com/article/economy-policy/dot-nod-to-telcos-for-conducting-5g-technology-and-spectrum-trials-121050400830_1.html.
[14] Shreya Agarwal, Juhi Chawla Moves Delhi High Court Against Roll-Out Of 5G Telecom Services, Live Law (June 04, 2021, 9:29 PM), https://www.livelaw.in/news-updates/juhi-chawla-delhi-high-court-5g-telecom-services-174959.
[15] Juhi Chawla files lawsuit against 5G in India, Delhi HC reserves order, Mint (June 04, 2021, 9:29 PM), https://www.livemint.com/news/india/juhi-chawla-s-5g-case-hearing-delhi-hc-reserves-order-read-here-11622637898673.html.
[16] P Parthiban, Actress Juhi Chawla files case against 5G network trials in Dehi High Court, says RF radiation is ‘extremely harmful’, Indian Express (June 04, 2021, 9:29 PM), https://www.indulgexpress.com/msociety/2021/may/31/actress-juhi-chawla-files-case-against-5g-network-trials-in-dehi-high-court-says-rf-radiationis-e-33922.html.
[17] Classic Textbook Case Of How Not To Draft A Plaint, Which Should Be Taught In Law Colleges : Delhi High Court About Juhi Chawl’'s Suit, Live Law (June 04, 2021, 9:29 PM), https://www.livelaw.in/news-updates/juhi-chawla-5g-suit-delhi-high-court-textbook-case-how-not-to-draft-plaint-175270
[18] Aditi, “Suit was for publicity:” Delhi High Court dismisses plea by Juhi Chawla against 5G rollout, imposes costs of Rs 20 lakh, Bar and Bench (June 04, 2021, 9:29 PM), https://www.barandbench.com/news/litigation/delhi-high-court-juhi-chawla-5g.
[19] What is the WHO definition of health? World Health Organization (June 17, 2021, 9:29 PM), https://www.who.int/about/who-we-are/frequently-asked-questions.
[20] Human rights and Health, World Health Organization (June 17, 2021, 9:29 PM), https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health.
[21] K Mathiharan, “Health and Law: The fundamental right to health care”, INDIAN JOURNAL OF MEDICAL ETHICS (2003), https://ijme.in/articles/the-fundamental-right-to-health-care/?galley=html.
[22] Francis Coralie Mullin v. The Administrator, Union Territory of Delhi AIR 1981 746.
[23] Bandhua Mukti Morcha v. Union of India AIR 1984 SC 802.
[24] State of Punjab v. Mohinder Singh Chawla (1997) 2 SCC 83.
[25] Unni Krishnan vs. State of Andhra Pradesh 1993 AIR 2178, 1993 SCR (1) 594.
[26] Paschim Banga Khet Mazoor Samity v. State of West Bengal (1996) 4 SCC 37.
[27] Chameli Singh v. State of Uttar Pradesh, 1995 Supp (6) SCR 827.
[28] Burrabazar Fire Works Dealers Association and Others v. Commissioner of Police, Calcutta AIR 1998 Cal. 121.
[29] Right to Health: Indian legislations and International documents, National Health Systems Resource Centre, India (June 17, 2021, 9:29 PM), http://qi.nhsrcindia.org/sites/default/files/Chapter%205-Right%20to%20Health%20Indian%20Legislations%20%26%20International%20Documents.pdf.
[30] People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301. ESC Ltd v. Subhash Chandra Bose (1992) 1 SCC 441 at 462.
[31] ESC Ltd v. Subhash Chandra Bose (1992) 1 SCC 441 at 462.
[32] J Microsc Ultrastruct, Effects of short and long term electromagnetic fields exposure on the human hippocampus, The National Center for Biotechnology Information (June 17, 2021, 9:29 PM), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6025790/.
[33] Kirsten Nunez, Is 5G Harmful to People? Healthline (June 17, 2021, 9:29 PM), https://www.healthline.com/health/is-5g-harmful#does-it-affect-health.
[34] Claire Curran, What Will 5G Mean for the Environment? University of Washington (June 17, 2021, 9:29 PM), https://jsis.washington.edu/news/what-will-5g-mean-for-the-environment/.
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