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Right to access Internet: A Fundamental Right or not?

The Access to Internet has transformed and is continuing to transform the lives of people around the globe. It has become one of the most essential elements of the lives of people in the 19th century, the dependency of people on internet has increased significantly. The areas such as communication, education, trade, commerce etc. have progressed greatly since the invention of the internet and its access being given to the public.


The Right to Access internet was recently declared a fundamental right by the Kerala High Court in the case of Faheema Shirin R.K. vs. State of Kerala. [i] However, internet being a great innovation has it negative side as well. In recent times, this access to internet and particularly social media has been misused by the anti-nationals and terrorists to destabilize the peace and stability in the society, which has led to a ban on the internet services and social media, at times, in various parts of the country. This is done by making the Right to Access Internet subject to reasonable restrictions under the provisions of the Constitution of India and various other statutes.


This blog deals with the Right to Access Internet as a Fundamental Right under the Constitution of India and various other fundamental rights guaranteed by the Constitution of India associated with it. It further analyzes the reasonable restrictions it is subjected to, the scope of such restrictions on the use of internet, and whether it is the ultimate solution to defend the sovereignty and integrity of India.


BACKGROUND

Liberty and security have always been at loggerheads. The question before the courts on the issue of right to access internet, is what do we need more, liberty or security? The pendulum of preference should not swing in either of the extreme direction so that one preference compromises the other. The Court must ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time. [ii]


Indian constitution makes the right to freedom of speech and expression a fundamental right for all citizens. It has been listed in Article 19 (1) (a) of the Constitution. The Court has on many occasions expanded the scope of the right to freedom of speech and expression. Internet is the primary source of information to millions of Indian citizens. The recent court ruling that declared right to access internet as a fundamental right is also in sync with the United Nations recommendation that every country should make access to Internet a fundamental right. [iii]

Freedom of Speech and Expression & Freedom to Practice any Profession, or to carry on Any Occupation, Trade or Business over the Internet

In the case of Faheema Shirin. R.K vs. State Of Kerala [iv], the court held that the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be reasonable and in accordance with Article 19(2) of the Constitution.


The court also observed in the case of Anuradha Bhasin vs. Union of India [v], that the internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology have opened up vast business avenues and transformed India as a global IT hub. There is no doubt that there are certain trades which are completely dependent on the internet. Such a right of trade through internet also fosters consumerism and availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).


REASONABLE RESTRICTIONS ON RIGHT TO ACCESS INTERNET

It goes without saying that the Government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with the requirements under Article 19(2). It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted, if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict.


Principle of Proportionality – Scope of Restriction on Right to Access Internet

The Restriction on free access to internet must comply with the Principle of Proportionality. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”.[vi] The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court.


Restrictions under Article 21 of Constitution of India

It was held by the Kerala High Court that in the case of Faheema Shirin. R.K vs. State of Kerala [vii], that the right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India. In the context of Article 21 any action by the state must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of:-

(i) legality, which postulates the existence of law;

(ii) need, defined in terms of a legitimate State aim; and

iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.


Restrictions under Section 144 of CRPC

Section 144 of the Cr.P.C. enables the state to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is not abused. In the case of Madhu Limaye and Anr. V. Ved Murti and Ors. [viii], the Court highlighted that the power under Section 144, Cr.P.C. must be:

(a) exercised in urgent situations to prevent harmful occurrences. Since this power can be exercised absolutely and even ex parte, “the emergency must be sudden and the consequences sufficiently grave”

(b) exercised in a judicial manner which can withstand judicial scrutiny.


It must be noted that the restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration. [ix]


CONCLUSION

The ban on Right to access Internet is a “draconian measure” for any state or country. Its effects have far reaching consequences and affects multiple spheres of life such as communication, education, trade, commerce etc. There is no denying that internet can be used for productive as well as destructive purposes. However, the problem of terrorism and unrest in the society requires a multi-faceted approach as the restriction of internet services is not the ultimate but only a temporary solution. Further, the indefinite ban on internet cannot be justified as every citizen is entitled to get the same rights and facilities under the Rule of Law.


The restriction are seen in violation of freedom of speech and expression, right to free trade and avocation, right to education, right to health which are essential fundamental rights under the constitution of India. There is constant debate on whether the Right to Access Internet is a fundamental right of citizens of India or not, owing to the contrasting contentions of the Judiciary and Executive authorities. This continuous debate and lack of clarity is affecting the lives of millions of people who are facing difficulties to live a normal life. It is high time that the Hon’ble Supreme Court, being the ultimate interpreter of the Constitution decides the fundamental nature of Right to Access Internet as the dependency on internet is increasing day by day and millions of people are aggrieved and demands justice for themselves.


ENDNOTES

[i] (2019) WP(C) No.19716 of 2019(L) (India).

[ii] (1985) 1 SCC 641

[iii] Prabhash K. Dutta, Internet access a fundamental right, Supreme Court makes it official: Article 19 explained, News Analysis, (July 18, 2020, 4:08 PM) https://www.indiatoday.in/news-analysis/story/internet-access-fundamental-right-supreme-court-makes-official-article-19-explained-1635662-2020-01-10

[iv] Supra Note 1.

[v] (1985) 1 SCC 641

[vi] 2001 (2) SCC 386

[vii] Supra Note 1.

[viii] (1970) 3 SCC 746

[ix] 2020 SCC 453


ABOUT THE AUTHOR

This blog has been authored by Ayush Amar Pandey who is a 2nd Year B.B.A., LL.B. (Hons.) student at Chanakya National Law University, Patna.


[PUBLICATION NO. TLG_BLOG_20_5804]

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