Right to Internet is a Fundamental Right or Not

Introduction

The Internet plays a significant role with the escalation of technology in modern times. Hence, the important question that would arise is whether access to the internet can be considered as a human right or not? It has been declared by the United Nations Human Right Council General Assembly in 2016 that Right to Internet is an essential human right. 

Rights given in the Constitution of India under Part III are the fundamental rights which include Right Against Exploitation, Right to Freedom of Religion, Right to Minorities, Right to Freedom, Right to Equality and Right to Constitutional Remedies. An indispensable role is played by these rights as they are the most important for any individual in attaining the full moral, intellectual and spiritual status. 

Access to the Internet has become one of the most essential elements of the lives of people around the globe in the 19th century as there is a significant increase in the dependency of the people on the internet. Since the invention of the internet and its access that is being given to the public, the areas of communication, trade, commerce have been progressing at a great speed. It had been recently declared by the Hon’ble High Court of Kerala in the case of Faheema Shirin R.K v. State of Kerala that The Right to Access the Internet as a fundamental right. 

Internet is a computer network which helps in distributing a variety of information globally using a network which is interconnected by Internet Protocol or the Transmission Control Protocol. Everything in the present High-Tech World is electronic and the Internet plays a crucial role to access it with ease. The Internet leads us to the future of autonomous vehicles and intelligence. The Internet plays an important role in the promotion of the Convention among women. It also plays a crucial role in the promotion of human rights of minorities and hence, the state should refrain itself from restricting access to these sources of internet in violation of freedom of expression.

However, at times right to internet can also have a negative side as well. This access to internet and social media in particular has been misused by the terrorists and the anti-nationals in the recent times to destabilize peace and stability in the nation. 

Access of Internet as A Part Of Fundamental Right under the Constitution of India

Security and Liberty have always been at odds. The question before the courts about the issue of the right to access the internet, what do we need more, security or liberty? We should make sure that no one preference is compromised by the other and the pendulum of preference should not swing in either extreme direction. It should be ensured by the court that all the citizens are provided with all the rights and liberty to the highest extent possible while ensuring the security of the nation at the same time in a given situation.

The right to freedom and expression is a fundamental right for all the citizens under the Indian Constitution and the same has also been listed in the Article 19(1)(a) of the Indian Constitution. The scope of right to freedom of speech and expression has been expanded by the court on many occasions by the court. The primary source of information is the internet to millions of the Indian citizens. The recent ruling of the court which declared the right to access internet as a fundamental right is also in accordance with the recommendation of the United Nations that every nation should make access to Internet a fundamental right.
In the case of Maneka Gandhi v. Union of India, it was observed by the Hon’ble Supreme Court that “the procedure that deals with the modalities of restricting, regulating or even rejecting a fundamental right which falls under Article 21 has to be fair, carefully designed to effectuate, not foolish, not subvert, the substantive right itself”.

The Hon’ble Supreme Court in the case of PUCL v. Union of India, had observed that under Article 19(1)(a) of the Constitution of India right to freedom of speech and expression is guaranteed. Here, freedom means to the right to express one’s opinions freely by writing, word of mouth, picture, printing or in any other manner. 

The court in the case of Faheema Shirin R.K v. State of Kerala, it was held that that the freedom of speech and expression through internet as a medium is an integral part of Article 19(1)(a) and accordingly, any restriction on the same should be a reasonable one and in accordance with Article 19(2) of the Constitution of India. 

In the recent judgement of Anuradha Bhasin v. Union of India, the Hon’ble Supreme Court has observed that under Article 19(1)(a) and Article 19(1)(g), the freedom to practice any profession or to carry on any trade, occupation, or business over the medium of internet enjoys the protection of constitution but inclusive of the test of proportionality the restriction of such fundament rights should be according to Article 19(2) and 19(6) of the constitution. Internet plays an important role in carrying e- commerce and trade business and is an imperative tool for trade and commerce as it provides for a virtual platform which is more affordable to a businessman. The rapid advancement in information and technology and the globalization of the Indian economy have opened up the vast business avenues and had transformed India as a global IT hub. There is also no doubt that there are certain trades which are totally dependent on the internet. Such right to trade through the internet also encourages consumerism and availability of choice. Therefore, the freedom of commerce and trade through internet as a medium is also protected constitutionally under Article 19(1)(g) of the COI which is subject to the restrictions provided under Article 19(1)(6) of the COI.

Reasonable Restrictions on the Right to Access Internet 

It is beyond saying that the Government is empowered to restrict the freedom of speech and expression under Article 19(1)(a) of the COI if there is a need to do so, in compliance with the requirements under the Article 19(2) of the COI. While the nation is facing such adversity, it is in this context that a restriction can be imposed on an abrasive statement with imminent threat, if the same impinges upon the integrity and sovereignty of India. 

Scope of Restriction on the Right to Access Internet- Principle of Proportionality

There must be compliance with the Principle of Proportionality when there is restriction on free access to the internet. The court under this principle will see that the administrative authority and the legislature “a proper balance is maintained between the adverse effects which the administrative order or the legislation may have the rights, interest or the liberties of the persons keeping in mind the purpose which they were intended to serve”. However, the administrative authority and the legislature are given a domain of discretion or a range of choices. But the court would still be left with the power so as to decide whether choice made by the legislature or the administrative authority infringes with the rights excessively or not. 

Restriction under Article 12 of the Constitution of India

The Hon’ble High Court of Kerala in the case of Faheema Shirin RK v. State of Kerala and others, had stated that Right to Internet access is a part of Right of Privacy and Right to Education under Article 21 and Article 21A of the Constitution of India respectively. Access to internet is very important to students as well. The access to internet for students not only enhances the opportunities for students to acquire knowledge but it also helps in the enhancement of the quality of education. Any action by the state in the context of Article 21 must be justified on the basis of law which is just, fair and reasonable. With reference to the encroachment of personal liberty and life the law must also be valid under A-21. The threefold requirement of the following must be met by an invasion of life and personal liberty: 

1. 1. Legality, which suggests the existence of law;

1. 1. Need, which is defined in terms of the legitimate aim of the state; and 

1. Proportionality, which secures the rational nexus between the objects and the means that are adopted to achieve them.

Restrictions under the Section 144 of CRPC

The state is enabled to take preventive measures under the Section 144 of CRPC to deal with imminent threats to public peace. The magistrate is enabled by the law to issue a mandatory order which requires certain actions to be undertaken or to issue a prohibitory order which restrains the citizens from doing certain things. The section ensures that the power which is given to the legislature is not abused by providing several safeguards. The court in the case of Madhy Limaye and Anr. V. Ved Murti and Ors., highlighted that the power of Section 144 CRPC must be the following:

1. 1. must only be exercised to prevent harmful occurrences in emergency situations. As this power can be absolutely exercised and even be exercised ex parte, “the emergency be sudden and its consequences should be sufficiently grave.”

1. Exercised in a judicial manner which can resist scrutiny of the judiciary.

It must be taken into note that such restriction on the fundamental right must be in consonance with the ordinance under the Article 19(2) and (6) of the COI, which should be inclusive of the test of proportionality. Any order suspending internet issued under the Suspension Rules must not extend beyond necessary duration and must be adhering to the principle of proportionality. 

Internet Shutdown and Human Rights

internet shutdown is an indiscriminate ban which is imposed by the state on access to Internet Service, either fixed line or mobile, and it also affects businesses, education, welfare schemes and is an impact on human rights and is not only a block on social media. For a developing country like India, shutting down of internet service is like closing all the banks at once and closing all the rads for the development of the economy. In the State of Jammu and Kashmir, internet shutdown was forced on 4th August 2019 when the Article 370 of the Constitution of India was revoked by Parliament of India and the state was bifurcated into Union Territory of Ladakh and Jammu and Kashmir, which prompted shutdown in the state for 213 days which proceeded till 4th March 2020 leading to the longest Internet Shutdown in India. 

All over India there have been 391 Internet Shutdowns in the last decade which resulted in rapid decrease in the growth of technology, where the growth of the IT sector has been initiated by the government by initiating programs like Digital India which has nine pillars out of which six of them are directly related to internet access. But the suspension of the internet not only creates a barrier for such programmes but it also affects the citizens rights. Human suffering is reflected all over the nation due to the expeditious suspension of Internet Services in one region of the country and it also impacts on the economy.

The Hon’ble Supreme Court of India in one of its landmark case Maneka Gandhi v. Union of India held that a law which deprives a person of personal liberty has not only to stand the test of Article 21 of COI but also Articles 14 and 19 of the COI as well. It held that the articles 14, 19 and 21 are mutually inclusive and cannot be read in isolation. Full security is ensured to individuals from any infringement upon their rights due to this Golden Triangle and therefore, shutting down of internet services is encroaching upon the rights of individuals.

Conclusion

For any state or country, ban on the Right to Access Internet is a “draconian measure”. Far reaching consequences are affected due to this and it also affects various domains of life such as education, trade, commerce, communication, etc. Internet can be used for both productive as well as for destructive purposes. However, the problem of unrest and terrorism in the society requires an approach which is multi-faceted as the restriction of internet services is not the ultimate but can only be a solution which is temporary. Furthermore, under the Rule of Law every citizen is entitled to get the same facilities and rights and hence, the indefinite ban on the internet cannot be justified. The restriction can be seen in the violation of freedom of speech and expression, right to education, right to free avocation and trade, right to health which are very essential fundamental rights under the Constitution of India. Owing to the contrasting contentions of the judiciary and Executive authorities there is a constant debate on whether the Right to Access Internet is a fundamental right which is available to the citizens of India. The lack of clarity and continuous debate on the same has been affecting the lives of millions of individuals who are facing problems to live a normal life due to the problem of internet shutdown. It is high time that Hon’ble Supreme Court of India comes to a conclusion and gives its judgement as to decide the fundamental nature of the Right to Access Internet.

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