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The Right to the Internet: A Persistent Conundrum

Updated: Dec 15, 2020

“Freedom of speech is a guiding rule, one of the foundations of democracy, but at the same time, freedom does not imply anarchy, and the right to exercise free expression does not include the right to do unjustified harm to others”

- Raphael Cohen – Almagor


Introduction:

Freedom of expression is a fundamental right guaranteed under Article 19 of the Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, and under Article 19(1)(a) of the Constitution of India. India is home to 1.2 billion people, spread across 28 states and 8 union territories, according to the 2011 census. India has the third largest internet population in the world today, after China and US respectively. Internet shutdown is a growing concern in India. At a time when India is leveraging the impacts of a generative technology like the internet to give a boost and expression to digital India, the shutdowns epitomises the difficulties on the pathway to realising India’s digital ambitions.

India rose as the internet shutdown capital of the world, as network disruptions became an increasingly common phenomenon around the globe. This infringes Article 19 of the Universal Declaration of Human Rights which states “ Everyone has the right to freedom of opinion and expression ; this right includes freedom to hold opinions without interference and seek, receive and impart information and ideas through any media and regardless of frontiers.”

India and Pakistan both claim Kashmir as its sovereign territory. The Government of India on 5th August 2019, made an announcement revoking Article 370 of the Constitution, thus, nullifying the special status of Jammu and Kashmir. Reports have described complete communication blackout in Jammu and Kashmir since 4 August, 2019, with the shutdown of internet access, mobile phone networks and cable, cut off. After the abrogation of Article 370 of the Constitution, Kashmir struggles to find its way out of the stone age and is still deprived of the right to access the internet. There have been certain pronouncements by the judiciary, recognising the pivotal role of Internet which will be covered in the article by elaborating the landmark case of Anuradha Bhasin. v. Union of India.

The Fundamental Right to Freedom and the Right to Freedom of Speech and Expression:

Fundamental Rights are the core of the Indian Constitution since they define the existence of individuals and govern their relationship with the state. Article 19 as a Right to Freedom, lays down six fundamental rights that are available to an Indian Citizen. It is important to note that Article 19 of the Constitution is not an ‘absolute’ right. The Constitution places certain ‘reasonable restrictions’ on the said fundamental right under Article 19(2). The limitations to be imposed on the rights have to stand the “Test of Proportionality”, which is inherently embedded in the Constitution under the head of “Doctrine of Reasonable Restrictions.” The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, being of sufficient importance to warrant overriding a constitutionally protected right or freedom. There needs to be a proper relation (proportionality stricto sensu) between the importance of achieving the proper purpose and the social importance of preventing the limitation of a constitutional right.

The present article deals with article 19(1)(a) of the Constitution which stipulates the fundamental right to freedom of speech and expression. The term “expression” includes the right to know and the right to be informed. It also includes the right to disseminate information to a wide section of people. During the contemporary times, internet is one of the most pivotal means of information diffusion. The Hon’ble High Court of Kerala has recognised the right to have access to the internet as a part of right to education and right to privacy under Article 21 of the Constitution. It went on to hold that any rule or instruction which impairs the right to access the internet would not be permitted to stand.


Access to Internet – A Basic Human Right

In 2016, the UNHRC General Assembly articulated that access to internet is an essential human right. Web could be a key for the protection of fundamental human rights as it not only provides easy access to a wide variety of information but also eases life. In India, Kerala was the first state to declare the Right to Internet a basic Human Right. The court held that Internet is the pathway to the future and the right to access the internet is necessary for living a decent life and therefore, is a moral human right.

- Relationship between internet access and Human Rights

Internet provides a support system to people in all spheres of life. It is not just a source of communication and information, but portrays a significant role for businesses and occupations along with home – based workers and small and individual enterprises. It is fundamental to facilitate the advancement and the zeal of Right to Education. Thus, it provides a virtual platform to millions of people across the nation.


Internet Access – A Fundamental Right

In Anuradha Bhasin v. Union of India and Ors., held that complete blockage to internet cannot be accepted. The court acknowledged that free flow of information is not only a normative expectation under the Constitution, but also a requirement under natural law. Thus, no law should be passed in a clandestine manner unless and until there is some specific ground of privilege. The Hon’ble court held that freedom of speech and expression through internet is an integral part of Article 19(1)(a) of the Constitution. Any restriction on the same should always be in accordance with the reasonable restrictions placed under Article 19(2) of the Constitution inclusive of the ‘test of proportionality.’

In PUCL v. Union of India, the Supreme Court observed that right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. Freedom here means the right to express one’s feeling by word of mouth, writing, printing, picture or in any other manner. Internet aids the citizens to express the opinions on a global platform and therefore, is converted under the ambit of Article 19(1)(a) of the Constitution. Article 21 of the Constitution has an extensive degree and is an unfulfilled jar to which the individuals can pour their substance in light of experience.

In Faheema Shirin RK v. State of Kerala and Others, the High Court of Kerala stated that Right to Access Internet is a part of Right to Education and Right to Privacy under Article 21A and Article 21 of the Indian Constitution. Access to Internet not only enhances the opportunities of students to acquire knowledge but also enhances the quality of education.


Internet Shutdown:

Internet Shutdown is a blanket ban imposed by the state on access to internet. In developing countries like India, shutting down access to internet is like closing all roads for the development of the economy. On 4th August 2019, the Central Government imposed a web shutdown on the state of Jammu and Kashmir after the Parliament revoked Article 370 of the Indian Constitution. The Government declared the state to be bifurcated into the union territories of Jammu and Kashmir and Ladakh, prompting 213 days of shutdown which was proceeded till 4th March 2020, leading to India’s longest internet shutdown. Suspending Internet Services in one region of the country expeditiously reflects human suffering elsewhere which also cause an impact on an economy.

In the landmark case of Maneka Gandhi v. Union of India, the Apex Court held that a law depriving a person of personal liberty does not only have to stand the test of Article 21 but also Article 14 and Article 19 of the Constitution as well. Article 14, 19 and 21 form a golden triangle and cannot be read in isolation as they are mutually inclusive. They are of prime significance and inhale essentialness in the idea of rule of law. This golden triangle enables full protection to individuals from infringement of rights, and thus, shutting down internet services is encroachment of individual’s rights.


Laws governing Internet Shutdown in India:

The procedural mechanism contemplated for restrictions on the internet is found under the Information Technology Act, 2000 ; the Code of Criminal Procedure,1973 and the Telegraph Act, 1885. Section 69A of the IT Act read with the Information Technology Rules, 2009 allows blocking of access to information. This section does not aim to block/restrict internet as a whole, but to block/restrict particular websites. Prior to 2017, any measure restricting the internet generally or even shutting down the internet was passed under Section 144, CrPC. The position has changed since 2017, with the passage of the Suspension Rules under Section 7 of the Telegraph Act. The rules state that an order passed thereunder should be a reasoned order. The order should be forwarded to a Review Committee which has been set up under the Suspension Rules, within one working day. The Review Committee undertake a periodic review of the orders passed and record its findings of whether the order issued under the Suspension Rules is in accordance with the provisions of the main statute viz., Section 5(2) of the Telegraph Act.

The orders under consideration are subject to the satisfaction of the Government or the authority concerned as to the existence of a ‘public emergency’. A ‘public emergency’ has been held to mean that which raises problems concerning the interest of the public safety, the sovereignty and integrity of India, the security of the state, friendly relations with foreign states or public order or the prevention of incitement to the commission of an offence. The orders should be made freely available, through some suitable mechanism, since its affects lives, liberty and property of people. This is subject to judicial review. The restrictions contemplated under the Suspension Rules are temporary nature. The same must therefore, be allowed to extend beyond that time period which is necessary.


Judgement - Anuradha Bhasin v. Union of India and Ors:

Internet plays a key role in the development of an economy as we are in an era where internet is an essential part of our lives.

In Anuradha Bhasin v. Union of India and Ors., the Apex Court held that suspending internet service not only obstructs conducting businesses online but obstructs an individual from their source of livelihood, thus, abrogating the fundamental right under Article 21 of the Indian Constitution. The court also held that freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys Constitutional protection and therefore, is an indispensable part of Article 19 of the Constitution subject to certain reasonable restrictions.

The Supreme Court has lately expanded the scope of fundamental right to freedom of speech and expression and declared the access to internet a fundamental right. The ruling is in sync with the United Nations recommendation that every country should make access to internet, a fundamental right.


Conclusion:

Public participation is one of the essential features of a democratic nation. Internet being one of the biggest library with different aspects of knowledge and fields of expertise is one of the most contemporary platforms for public participation. Thus, denying access to internet is like curbing the right of public participation. With the advancement in technology, internet plays a significant role in our day to day lives. It is an empowering agent of our rights and duties. The Supreme Court in the present case has tried to sort a balance between the rights of an individual and the security of the nation.

A complete ban on the internet facilities as in case of Jammu and Kashmir is an encroachment of the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution along with the infringement of the right to personal liberty under Article 21 of the Constitution. Restrictions can only be put on its use after proper legal backing with logical reasoning and reasonableness.

As has been discussed above, internet access comes under the parameter of the Golden Triangle and thus, plays an essential role in our everyday lives.

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