Right to access Internet as Fundamental Right

Author: Amar Singh, 3rd year, Dr. RMLNLU

Fundamental rights are basic human rights that ensure dignity to every individual. Their ambit has widened significantly by the progressive interpretation of the Constitution by the Supreme Court. They now include the right to health, education, environment, clean water, livelihood etc. In a recent judgment, the Apex Court held the right to access internet as a medium of freedom of speech and expression and trade is a fundamental right protected under Article 19. With the advent of technology and digitalization of the world, mobile, laptop and internet have become an inseparable part of life. The Internet today has become an indispensable part of the humankind. It can rightly be said that internet is a catalyst in the process of imparting, receiving, and sending information. Therefore, the necessity for having internet connectivity cannot be compromised. Be it education, trade, business, services or any job, mobile and internet are the basic necessities needed to utilize the resources up to full potential.

The matter was first raised in Kerala High Court by a petition of college student where Court ruled that the Access to the Internet is a fundamental right that cannot be taken away arbitrarily.[1] The court set aside petitioner’s expulsion and hostel rules which denied Internet access to women students at night. The mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life and even to a stage that it is unavoidable to survive with dignity and freedom. The right to have access to internet becomes the right to education as well as right to privacy under Article 21 of the Constitution. It has become a medium for the individual to enjoy his freedom of speech and expression. Any unreasonable restriction cannot be applied on this right. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience and expediency.

In AnuradhaBhasin v.Union of India[2], the court determined the validity of orders issued by the government under which all modes of communication including mobile, internet and fixed-line telecommunications services were shut down or suspended or in a way made inaccessible or unavailable in Jammu and Kashmir. The court did not express any view on declaring the right to access as fundamental right as none of the counsels argued on the same.it confined itself to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on trade or business under Article 19(1)(g), using the medium of internet is constitutionally protected.

The court distinguished between the internet as a tool and the freedom of expression through the internet. The court in a catena of judgments has recognized freedom of speech and expression over different media of expression. Freedom of speech and expression includes the right to disseminate information to as wide a section of the population as possible. Expression through internet has gained contemporary relevance and is one of major means of information diffusion. Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.Internet is also a very important toot for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).

It has been observed that the Jammu and Kashmir has always been a victim of terrorism and violence. Further, after the revocation of article 370, there was a huge possibility of spreading fake messages or images content through social media platforms. There was also a possibility of mass scale attack planned by perpetrators using social media platform. The situation was threat to national security.Therefore, looking at the gravity of the situation, the government had taken such decision. The court observed that in such a situation, a restriction can be imposed for security, but such restriction should be in consonance with the mandate under Article 19(2) and (6) of the Constitution. The court emphasized on applying the test of proportionality in such a scenario, which states that there should be a reasonable nexus between the objects and the means adopted to achieve them. In determining this, the court will have regard to whether a less intrusive measure could have been adopted consistent with the object of the law and whether the impact of encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.

This latest expansion makes the constitutional provision keep pace with innovation of technology. Internet is the primary source of information to millions of Indian citizens. A non-citizen can avail the same benefits but cannot claim it as her fundamental right.The Supreme Court ruling is also in sync with the United Nations recommendation that every country should make access to Internet a fundamental right.[3]In India, Kerala had become the first state in 2017 to declare access to Internet "a basic human right". In this increasingly digital age, where the government is on a mission to move towards a cashless economy and promote e-governance and digitisation, access to Internet is absolutely essential.The government of Kerala has understood the fact that without basic access to the Internet, all digitisation initiatives will prove fruitless.Thus, government should take steps to make the access to internet more feasible to poorer sections in order to ensure proper digitization. Any unreasonable restriction on its access should not be imposed which curtails this basic human right.

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[1]FaheemaShirin v.State of Kerala, 2019 SCC OnLine Ker 2976.

[2]AnuradhaBhasin v. Union of India, 2020 SCC OnLine SC 25.

[3]Prabhash K Dutta,Internet access a fundamental right, Supreme Court makes it official: Article 19 explained, India Today (2020),<https://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10> (last visited Feb 27, 2020).