Author: Shubham Shakti
Co-Author: Vanshika Jhakhnadia
The Right to Internet access, also known as the Right to Broadband or Freedom to Connect, is the view that all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights, that states have a responsibility to ensure that Internet access is broadly available, and that states may not unreasonably restrict an individual’s access to the Internet.[i]
In the era of 21st Century, technology has been taking all over the globe. People are so embedded with internet, being one of the main platforms for educational purposes, business or any other administrative function and day to day activities. Dependency on internet has also risen significantly since COVID times in recent times. The access to internet has significantly transformed and is continuing to transform people’s lives. Ever since the outbreak of pandemic in 2020, Internet Services have emerged as the solution to billions of people.
That is why access to Internet is very important for any country.
But around 60% people around the globe don’t have internet and if its least developed country then only 1 out of every 10 persons have access to internet. Two thirds of the world’s school-age children have no internet access at home, as per UNICEF-ITU reports . Also in India there has been almost 400 shutdowns in law 10 years. The longest internet shutdown that happened in Kashmir, in the history of the internet, which lasted for 213 days starting from 4th august 2019 to 4th March 2020.[ii]
And its evident that there cannot be development in any country without digitalization and without having a proper access to it.
The rapid growth of technology and internet around the globe , embedding people around it, has triggered to a question as to whether the access to internet is a basic right or not and if a state can restrict such usage. Therefore in 2016, despite of opposition from countries like Russia, China, Saudi Arabia, India etc, UN declared that access to Internet is a basic human right making an addition to Article 19 of the Universal Declaration OF Human Rights(UNDHR) which cites “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Section 32 adds “The promotion, protection and enjoyment of human rights on the Internet” and another 15 recommendations that cover the rights of those who work in and rely on internet access. It also applies to women, girls, and those heavily impacted by the digital divide.[iii]
Right To Access Internet – A Fundamental Right Under Constitution Of India
Faheema Shirin R.K v. State of Kerala[iv]
In this case, The petitioner Faheema Shirin was a 3rd Semester B.A Student , who has been staying in the college hostel where use of cell phone is prohibited from 10 PM to 6A.M but the duration of using the cell phone has been changed to 6 P.M to 10 P.M. Petitioner with other inmates of the hostel went to the warden explaining their inconvenience but she didn’t respond instead sent a Whatsapp message stating that who do not abide by the rules vacate the hostel. She thereupon the principal submitted a letter requesting him to relax the restriction. Thereupon she submitted a letter in writing stating the she was not able to able by the new restriction. A memo was issued for her to vacate the hostel immediately, she submitted a leave letter as it would not be possible for her to travel 150 km every day, when she reached the hostel to vacate the room, it was seen locked and the hostel authorities did not allow her to take her belonging.
Opposing this restriction, she filed writ petition in Kerala Branch with a sitting of/ before a single bench judge P.B Asha.
Keeping in mind, the learning process of the student and development, Hon’ble High Court stated that Right to Internet is a Fundamental Right and also a part of Right to Education and Right to Privacy under Article 21A and Article 20 of the Indian Constitution respectively.
Anuradha Bhasim v. Union of India[v]
In this case, Ms Anuradha Bhasim, who was an editor of the Kashmir Times Srinagar Edition who argued Internet must be essential for the modern press.
This case challenge the ban which was going on from 4th August, 2019, which said Restricting physical movement along with online communication restriction violates Article 19 of the Indian Constitution. Right to Internet is a part of Article 19(1) (a) of the Indian Constitution.
Supreme Court said:
“Due to immediate threat or security concern a temporary ban on services is permissible but ban of internet services for an indefinite period is not right. The balance between National security and human right should be maintained”.
The Supreme Court in its judgement observed that freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys Constitutional protection under Article 19(1)(a) and Article 19(1)(g), but the restriction of such fundamental rights should be according to Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality. Internet is an imperative tool for trade and commerce and plays an important role in carrying e-commerce business as it provides a virtual platform to a businessman which is more affordable.
After the judgement in J&K, 2G low speed internet has been allowed.
Foundation of Media Professional v. Union Territory of Jammu & Kashmir[vi]
This case is a Landmark Lawsuit which appear before the Supreme Court in the year 2020. This case is popularly known as 4G case.
In this case, the ban imposed on 3G and 4G network in J&K has been challenged, It states that the internet ban violates Right to Education, Right to Profession, Right to Health and Right to Freedom of Speech and expression.
In this case Supreme Court issued directions to resume 4g servers and a Committee was setup. After much discussion, centre after 15 august decided to resume services in limited areas on a trail phase.
Internet Shutdown and Government’s Stand
In India, in a past few years, there has been significant bans on access to internet in various states and Union territories for several reasons, security reasons being one if the prime reasons. Such bans were instituted following Section 144, Code of Criminal Procedure 1973 and
It is also argued that it is Section 69A of the Information Technology Act 2000, and the Website Blocking Rules, which set out the legal provision and procedure empowering the State to block access to the Internet.[vii]
In 2017, the Central Government notified the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules under the Telegraph Act to govern suspension of Internet.[viii]
The court in Anuradha Basin Case[ix] said that because the Rules require the order to be in accordance with Section 5(2) of The Telegraph Act, the order must be during a “public emergency” or in the “interest of public safety”. Also, the suspension must be “necessary” and “unavoidable”.
“In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy,” the court said. “Having said so, we may note that the Suspension Rules have certain gaps, which are required to be considered by the legislature.” (Anuradha basin case )
The motive behind shutting down the internet in every part of India, is mainly for maintaining the law and order situation except Jammu Kashmir. In case of Jammu and Kashmir the main reasons that have been cited is the security of the country due to the particular type of polity, history and constitutional changes that has been brought upon Jammu and Kashmir.
India plays a very significant role in the development of the economy. In this era, Internet is an essential part of individual life. Internet is not only a medium or mode of communication it has become a platform for trade and commerce, education and many more.
As India is facing Internet Shutdown over the course of time which is directly affecting the trade and commerce along with harm the Human Right of the Citizen of India. The revocation of Article 370 of the Constitution to integrate the state of Jammu and Kashmir as a union territory of India has resulted a longest suspension of Internet in the history of India which also resulted lack of communication facility available to the resident of the State.
The Government needs to look at the improvement of this right just the same way it looks for a new technology, and such improvement must be done with an appreciation for at-least the above argued Fundamental Rights. a complete ban on Internet would be disproportionate as it has become an integral part of our daily life. Restrictions over its use must only be placed after certain legal procedures are followed, backed by logical reasoning and reasonableness.
[iv] Faheema Shirin R.K. v. State of Kerala and others, (2019) WP(C) No.19716 of 2019(L) (India).
[v] Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25
[vi] Foundation of Media Professionals v. Union Territory of J&K and Anr, 2020 SCC 453
[ix] 2020 SCC Online SC 25