(Kavish Arora is a second year student at Symbiosis Law School, Hyderabad)
Featured art: Maharaja’s Boat, From Francis Frith’s album. Around 1850s to 1870s.
(via: Victoria and Albert Museum.)
- INTRODUCTION
The government of India revoked the special status of Jammu and Kashmir in 2019 by abrogating Article 370 of the Indian Constitution. The said abrogation led to the brutal government crackdown and importantly, yet not surprisingly, the suspension of internet and cellular services. Recently, the government has reinstated the access to 4G network in two districts of Jammu and Kashmir on a ‘trial basis’. Further, it is pertinent to state herein that India led the world in the number of internet shutdowns in 2018 and 2019. The importance of internet access as a source of information and communication in the present world is indispensable. Nonetheless, the same has been reiterated by the present pandemic.
The constitutionality of the internet and cellular restraints was challenged in the Hon’ble Supreme Court in the case of Anuradha Bhasin v Union of India, wherein the court opened a Pandora’s Box and dealt with the apparent issues and challenges. However, the author shall not elucidate on the intricacies of the judgment or harken upon the constitutionality of the internet suspension. Rather, he will focus on analyzing what could have been a defining decision in declaring the “access to internet” as a fundamental right.
2. THE CONUNDRUM OF ‘ACCESS TO INTERNET’ AS A FUNDAMENTAL RIGHT
‘Access to Internet’ has transformed into a fundamental right in some countries through their constitution like Estonia, Greece and Ecuador; and in some through legal precedents like France, Costa Rica and United States.[i] The Apex court in India through the Anuradha Bhasin case had the golden opportunity to give ‘access to internet’ the pedestal of fundamental right. Even though the Supreme Court held in the case that freedom of speech and expression through medium of internet and freedom to carry on any trade, business and occupation through internet have been ensured protection under the constitution, but it never upheld ‘access to internet’ as a fundamental right.
2.1 The Negative and Positive Paradigm
The concept of ‘access to internet’ as a fundamental right will have two dimensions: a) A negative right and b) A positive right. The ‘access to internet’ as a negative right will construe an obligation of the state to not interfere and restrict any individual’s right to internet access, except wherein the restrictions are reasonable and lawful. Whereas, in positive sense it will obligate the state to take every measure possible in order to provide internet access to every citizen. The former is a civil and political right, while the latter is a socio-economic right.[ii] Herein, the author analyses the right to internet access in its negative connotation.
2.2 Article 19 vis-à-vis Access to Internet
Internet since time immemorial has been a platform to raise voice and express opinions. Article 19(1)(a) ensures freedom of speech and expression. Furthermore, the case of Express Newspapers Pvt. Ltd. & Ors. v. Union of India &Ors. has made dissent an integral part of Article 19(1)(a). Further, it was the case of State of Uttar Pradesh v. Raj Narain which interpreted the Right to Know under the ambit of freedom of speech and expression. Moreover, the Right to Publish and the Right to Disseminate and Circulate Information also comes under the wide purview of freedom of speech and expression. Through the landmark case of Indian Express v. Union of India the Apex Court postulated that the freedom of speech and expression includes several rights which are linked together in a continuum. These rights become more noticeable due to technological advancements. Technological advancements such as the internet have made these rights more perceptible in the modern world. The internet provides a plethora of platforms to create, express, criticize not only private communications but political, national, and international as well. Not only does it serve as an information provider of the various issues around the globe but also acts as a source to culminate the right to dissent, know, publish, and disseminate information at a common platform. This makes internet a corollary to the freedom of speech and expression.
While the conundrum of ‘access to internet’ finds its fundamental essence under the Article 19(1)(a) of the constitution, it also emanates from the right to freedom of assembly enshrined under the Article 19(1)(b) of the constitution. Internet acts a place of assembly through its various social media platforms, wherein people can share their locations, data, information, and ideas. The denial of internet access is an urgent threat towards the freedom to assemble.[iii] The right to assembly means having the freedom to come together with others. The internet provides this assembly through a virtual platform where people can connect and broadcast information with each other.
In furtherance, the present times can be observed with a spark change in direction of trade and commerce. This paradigm shift is due to the development of internet as a means to conduct business. Article 19(1)(g) of the constitution ensures the right to practice any trade, profession, and business. Internet has been become a locus for various economic activities and the suspension of internet services hamper the business activities, which directly hampers the country’s economy. In India, the internet shutdowns have caused an estimated loss of $1.3 billion in 2019 alone. Without internet all industries including tourism, manufacture, construction, education come to a standstill. Even the Supreme Court through Anuradha Bhasin construed internet to be an integral part of trade and commerce in India and has mandated its constitutional protection.
2.3 Article 21 vis-à-vis Access to Internet
Article 21 has been interpreted as being a broad right having numerous enumerated rights. These rights have emerged under the prerogative of Article 21 with the passage of time. The Apex Court in the landmark case of Unnikrishnan v. State of Andhra Pradesh had identified right to education as a fundamental right which flows from the right to life. Internet has been a great source for knowledge; one can access extensive information within seconds. It has become the source to a variety of e-books, e-newspapers, and online courses as well. Also, it provides a great platform for interaction and group discussions between students. Moreover, the present pandemic has rightly highlighted the significance of internet as a medium for imparting education.
Along with the right to education, internet has also been an impetus to another derivative right of Article 21 which is the right to health and medical care as construed through the landmark judgement of Consumer Education and Research Centre vs. Union of India. Furthermore, in the recent case of Foundation for Media Professionals v. Union Territory of Jammu and Kashmir it was suggested that speedy and effective internet becomes an integral part of medical services as for accessibility and disseminating of information regarding containment strategies during the period of pandemic. In scenarios such as the COVID-19 pandemic wherein medical resources are inadequate and the healthcare system of the country is vulnerable, internet acts as a medium through which safety guidelines and medicinal instructions can be passed amongst the masses.
3. CONCLUSION
Internet has transformed itself from a luxury to a necessity. One can come to a consensus that the right to internet access comes under the fulcrum of both Article 19 and 21 of the constitution. Further, in the landmark judgment of Kesavnanda Bharati v. State of Kerala, a critical observation was made by Matthew J that the fundamental rights have no fixed content and are just like empty vessels, wherein each generation must pour a new light of their own experience. With internet having a huge impact on each and every aspect of life, it can be postulated that right to internet access should now be recognized as a fundamental right. Internet has been one of the greatest gifts of the human race and has become necessary for various pre-emptive rights. Herein, it is imperative to mention that the Kerala High Court through the case of Faheema Shirin R.K. v. State of Kerala took the initiative to declare the right to internet access as a fundamental right. However, the expression is yet to receive national recognition per se. The Apex Court through Anuradha Bhasin, even though has given internet a fundamental character; it has missed the opportunity to declare the right to internet access a fundamental right. However, one can still observe this as a progress in the jurisprudence related to ‘access to internet’ in India.
[i] Tommaso EdoardoFrosini, Access to Internet as a Fundamental Right, 5 Italian Journal of Public Law 226 (2013).
[ii]Kartik Chawla, Right to Internet Access – A Constitutional Argument, 7 Indian Journal of Constitutional Law 57 (2017).
[iii]Brian Skepys, Is There a Human Right to the Internet, 5 Journal of Politics and Law 15 (2012).
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