RIGHT TO INTERNET: A fundamental right?

As the Covid-19 pandemic continues to disrupt our day-to-day activities and disorient our lifestyles, people around the world are resorting to alternatives that can facilitate their needs. functions of their disoriented lifestyle. After the emergence of this pandemic, governments, and global organizations have revisited their approaches in tackling this unprecedented situation. Internet and Technology, undeniably, has been raised to the pinnacle as it played a crucial role in serving the requirements of the people during this emergency and has helped governments across the world in maintaining their status quo. People’s lives have been deeply permeated by it, as it assists them in almost every other activity. Dissemination of information, propagation of ideas, and consumption of data have been bolstered heavily as a result of this virtual lifestyle. Now is the time when the accessibility to the Internet is unconditionally important for the people so as to support them to adapt to the dynamics of this situation. The question that lies here is, whether the right to access the internet exists and if it does, is it fundamental in nature.

In India, currently, there are approximately 564.5 million users of the internet and the

numbers are only going to soar in the coming years [1] These numbers clearly indicate that the Indians have made the Internet an indispensable tool as it helped them rethink the ways of information, education, communication. This has in turn resulted in perceiving broader connotations of individual freedoms and inalienable rights for the citizens. It is also believed believe that the Internet is a conduit that paves way for the realization of fundamental rights guaranteed under Articles 19(1) (a), (g), and Article 21A of the Constitution of India.

Blockage of the Internet: Case of J&K:

The condition of the state of Jammu and Kashmir has been unsettling since many years and after the Indian government abrogated the provisions of Article 370 and bifurcated J&K into Jammu, Kashmir, and Ladakh, the internet services were suspended on August 5, 2019, in the state to support the claims of maintaining security and preventing terrorism. [2] The internet blackout disabled the residents from continuing their online activities causing the loss of jobs, shutting down of local tech-companies, pausing the educational activities etc. This has resulted in an uproar from the residents and gained global attention towards this

act of curtailing internet services. The significance of the right to the internet was stressed heavily during that period. Many pleas were filed before the Apex court to address the situation.

While reviewing the orders of restrictions in J&K in a petition, the Apex court, on Jan 10, 2020, pronounced 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 in accordance with Article 19(2). The court also decided that the freedom of trade and commerce through the medium of internet is also constitutionally protected under Article 19(1) (g) subject to the restrictions provided under Article 19 (6). Thereafter it has been widely reported and is believed that the court has declared access to the internet as a fundamental right. The statement is unwarranted, as the court in its own words said, “none of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore

we are not expressing any view on the same” [3]. It was further held that any order suspending internet services indefinitely under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 will be open for judicial review and will be subject to the principles of proportionality. Thus, the subject of the right to access the internet as a fundamental right remained untouched. The internet services were made available on low-speed 2G. [4]

Later on, internet services started resuming slowly in few districts and were made available on low-speed 2G. In April 2020, after months of restricting the complete access to the internet which also continued during the pandemic, the J&K government in response to the petition filed in the SC said that the right to access the internet is not a fundamental right but an enabler of rights; it has also responded that the current internet speed, combined with broadband internet is enough to deal with the Covid-19 crisis effectively. [5]

Determining the purview

When it comes to the subject of rights, they are classified as positive as well as negative. Negative rights are considered intrinsic to humans as a negative duty is imposed on others to do nothing to interfere with the freedom of a person. Some of the examples are the right to live, the right to equal freedom of speech, freedom of religion, etc. Whereas the positive rights enable the holder of the right to claim a service against a person or the state by imposing a positive duty on someone to act in a certain way. For example, the right to free education, healthcare, right to minimum wages, etc. This classification helps us in determining the position of the right to the internet. Clearly, it falls within the purview of positive rights. The phrase ‘Right to the Internet’ may be conceived as having twofold expositions: the primary being over the issue of access to the content over the Internet and reasonable restrictions; and the second being the issue of availability of necessary infrastructure and technologies to

access the Internet. [6]

Back in December 2019, in the case of Faheema Shirin v. State of Kerala [7], the Kerala HC ruled that the right to access the internet flows from the freedom of expression

including the right to be informed and the right to know. The bench also said, “When the Human Rights Council of the UN has found right to access to the Internet is a fundamental freedom and a tool to ensure the right to education, a rule which impairs such a right of students cannot be permitted to stand…”.

The UN Resolution

On July 1, 2016, the UNHRC (United Nations Human Rights Council) on ‘The promotion, protection, and enjoyment of human rights on the Internet’ emphasized applying a human rights-based approach in providing and in expanding access to the internet. International law has clearly not taken a rights-based approach towards access to the internet. However, States individually have developed strategies either through legislation or policies on making access to the internet a reality for their population.

The Universal Service Directive (2002), legislation for universal telecommunications in the EU, revised in 2009, extends access to the public communications network to include ‘functional access to the internet’ subject to prevailing technologies and its feasibility. India like several nations has chosen the path of policy and schemes rather than the legislative route with respect to access to the internet. The Universal Service Support Policy and the guidelines have come into effect in 2002. As a result of the National Digital Communications policy (2018), the adoption of ‘Rashtriya Broadband Abhiyan’policy’ was accentuated in India. The policy aims at providing broadband at high speeds with a strong network and availing internet services to all villages by 2022. The flagship Digital India Programme has nine pillars, of which six are directly related to internet access. There are also programs run by the central government for infrastructure creation, like Bharat Net, and for digital literacy, like PMGDISHA (Pradhan Mantri Gramin Digital Saksharta Abhiyan).

Though the schemes and policies are in place to enforce the idea of accessibility to internet and avail its services, the Indian government has failed to take a decisive approach in interpreting the right to access the internet within the wider ambit of the Right to life under Article 21. This has rendered to the rise of distinct explanations as to this right. Had this right been looked upon from a human rights perspective it’d have been termed as a justiciable right. The pandemic situation has required us to rely on the internet services for education, health, finances, and businesses it is imperative to expound the pertinence of this right aligned with reasonable restrictions.

References: [1]. Internet and Mobile Association of India, https://www.iamai.in/

[2]. https://economictimes.indiatimes.com/news/politics-and-nation/145-days-of-internet-shutdown-in-kashmir-no-word-on-service-restoration/articleshow/72996839.cms

[3]. Anuradha Bhasin v UOI [WP(C) 1031/2019]

[4]. https://www.washingtonpost.com/world/asia_pacific/indias-internet-shutdown-in-kashmir-is-now-the-longest-ever-in-a-democracy/2019/12/15/bb0693ea-1dfc-11ea-977a-15a6710ed6da_story.html

[5]. https://www.thehindu.com/news/national/other-states/right-to-access-internet-not-a-fundamental-right-jk-tells-sc/article31467807.ece

[6].Sharma, Siddhant & Yadav, Utkarsh, Access to Internet in India: A Constitutional Outlook on Right to Internet 4 (2017)

[7]. 2019(2) KHC 220

Article by Sri Abhigna Pillalamarri, a first-year law student at Symbiosis Law School, Hyderabad.

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