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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Examining Right to access Internet as a Fundamental Right

 Introduction

We must regard ourselves much privileged as we have a boon called the Internet. In the entire world, there is a large amount of population who don’t have the right to access the internet even if they have the content provided is limited and have certain restrictions on it. The situation in the least Developed Countries is even more alarming. Can you imagine the development of any Nation without the Internet in the era of Digitalization? Obviously, the answer will be a big “No”.

                                     
“Access to computers and the Internet has become a basic need for education in our society.”

-Kent Conrad

On one hand, the Internet is a great tool for modernism and development whereas on the other it is used to put forward your voice against the suppressive policies of the Government, there are many more other aspects too. Considering all these things in mind, in the year 2016, United Nation Human Rights Council said that the Right to the Internet should be made a Fundamental Right. This is not the first time when UN Human Rights Commission demanded some right as a fundamental right, many years ago the same commission demanded Right to Education should be made a fundamental right and the result is known to everyone.

Countries that have declared access to the internet as a Basic Right

The whole world is in the developing stage and technology is something that is inevitable. This is where the importance of the internet comes into being. With the recognition of its importance, there are some countries that have declared access to the internet as a fundamental right. Although the number is not much big but is significant enough to draw one’s attention.

The lists of Countries are:

  • Estonia
  • Greece
  • European Union
  • France
  • Finland
  • Costa Rica
  • Spain
  • Canada

Right to access the Internet and Fundamental Rights in Indian Constitution

Liberty of Citizens and Security of Nation is the most debated topic in any Country, same is in India too. They often try to restrain each other by showing their superiority over the other. Here comes the role of the Judiciary to maintain a balance between both of them. They generally try to ensure that Citizens enjoy their rights without compromising the Nation’s Security.

Article 19 (1) (a) of the Indian Constitution guarantees freedom of speech and expression to all the citizens of India, on the other hand, Article 19 itself provides State with the power to impose certain reasonable restrictions on this fundamental Right. In this digitalized and fast-moving world, the Internet is a major tool to enjoy the basic right enshrined in Article 19 of our Indian Constitution. Simultaneously, the governing authority also enjoys its power provided in the same article to limit the rights of Citizens through various means like Internet Shutdowns, Imposition of Section 144 of CrPC, and many others.

It is very important to understand the judicial interpretation of the same right. But before looking into that let’s have a brief overview of Internet Shutdowns in India.

Internet Shutdowns in India

Internet Shutdown is a commonly used tactic to silence the voice of the people especially when there is a protest and has the capacity to attain worldwide attention.

In the year 2020, a total of 155 internet shutdowns were imposed globally spreading over 29 countries. Out of 155 shutdowns 109 were imposed in India itself. Also, in the year 2019 India topped with 121 internet shutdowns.

India, the largest democracy witnessed the longest Internet Shutdown in history. On 4th August 2019 when Parliament of India revoked Article 370 of the Indian Constitution which led to a division of the State of Jammu and Kashmir into two Union Territories i.e. Jammu and Kashmir and Ladakh and for security purpose Internet Shutdown was also imposed. This shutdown later came into the form of India’s longest Internet shutdown. It took 213 days to restore the Internet in Jammu and Kashmir.

Judicial Decisions

No matter what legislation states but it’s very important how Judiciary interprets it and fulfills the overwhelming needs of the Society. A proper understanding of the topic, “Examining the Right to access the internet as a Fundamental Right” would not be possible without knowing how the Judiciary has considered it.

Faheema Shirin. R.K v. State of Kerala[i]

Faheema was a college student and resides in a college Girls Hostel. The rules of Girls Hostel were somewhat tumultuous which says that Hostellers are not allowed to use their Mobile Phones from Evening 6 to 10. The same was challenged in the Court.

In this landmark Judgment, a single judge bench headed by Justice PV Asha of Kerala High Court stated that the Right to access the Internet is a Fundamental Right and forms a part of the Right to Privacy within the ambit of Article 21 of the Indian Constitution. The Judgment recognized the need for the Internet to have proper access to Education.

Anuradha Bhasin v. Union of India[ii]

This case directly connects with Jammu and Kashmir and was filed on 10th January 2020. The petitioner challenged the Internet ban in Jammu and Kashmir, which was imposed on 4th August 2019. The petitioner argued that restricting Physical movement along with online communication is violative of Article 19 of the Indian Constitution and the Right to the internet forms a part of Article 19(1)(a) of the Constitution.

In this case, the honorable Supreme Court said that due to immediate threat or National Security concerns a temporary ban on any services is permissible but that suspension cannot last for an indefinite period. There should be a proper balance between Security and Human Rights. With this, a low-speed 2G internet was allowed in Jammu and Kashmir.

Foundation of Media Professional v. Union Territory of Jammu and Kashmir & Anr.[iii]

Popularly called as 4G case basically challenged the ban of 3G and 4G mobile services in Jammu and Kashmir. They said that a ban on Internet services violates many rights enshrined in Part 3 of the Indian Constitution such as the Right to Education, the Right to Profession, the Right to health, and many others.

As a result, Honorable Supreme Court issued directions to resume 4G services and a committee was set up to examine the same. After many discussions and all, Central Government resumed 4G internet services in limited areas on a trial basis after 15th August 2020.

Conclusion

Undoubtedly, the Internet forms a very important part of modern-day life but sometimes this important part is taken away through the Executive’s action. As stated above, many countries have already declared the Right to access the Internet as a basic human right and many are in the process to do the same.

In India, as always Judiciary has played a key role in interpreting the Fundamental Right and striking the right balance between Human Rights and Security Concerns.

“The internet is so big, so powerful and pointless that for some people it is a complete substitute for life.”

-Andrew Brown

[i] WP(C)No.19716 OF 2019(L)
[ii] 2019SCC Online SC 1725
[iii] 2020SCC Online SC 453
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Author: Dheeraj Diwakar, Dr. Ram Manohar Lohia National Law University Lucknow

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