The Case for Internet Access As Fundamental Right in India

 

TABLE OF CONTENTS

 

1. INTRODUCTION: - 3

1.1 Research Questions: - 4

1.2 Objectives of The Study: - 4

1.3 Statement of Research Problem: - 4

1.4 Hypothesis: - 5

1.5 Research Methodology: - 5

1.6 Literature Review: - 5

2. RIGHT TO INTERNET: EVOLUTION IN INDIAN JURISPRUDENCE: - 6

3. DOWNSIDE OF RECOGNISING RIGHT TO INTERNET AS A SEPERATE FUNDAMENTAL RIGHT: - 8

4. CONCLUSION & WAY FORWARD: - 10

5. BIBLIOGRAPHY: - 11

 

 

ABSTRACT: -

This article conducts an in-depth examination of the right to internet in the Indian context and argues for recognizing internet access as an autonomous fundamental freedom in its own right, rather than as merely ancillary to other rights. While India is undoubtedly progressing rapidly towards becoming a fully digital nation, there are several underlying reasons why internet access has not yet been guaranteed as an independent constitutional right. This paper aims to identify and analyze these reasons. In summary, this paper makes a case for recognizing internet access as an express autonomous fundamental freedom in India while arguing for safeguards to address legitimate legal and security concerns. It adopts a balanced yet progressive perspective on this issue of seminal importance in the digital age.

Keywords: Internet, Fundamental Right, Digital, Free Speech

1. INTRODUCTION: -

The freedom to convey one’s beliefs and thoughts without any constraints, serves a crucial role in the development of a community and ultimately, a nation. Thereby, regardless of any circumstance, it must be remembered that the basic premise of a democracy is that no matter what circumstances may arise, the people living in a democratic country are entitled and endowed with the ability to speak freely and express their views and ideologies in any manner they choose. The right to communicate is a basic human right that has evolved over time as humans developed their cognitive and communicative abilities, they found new ways to express themselves and connect with others, which led to the creation of various modes and mediums through which the right to communicate could be exercised. The development of technology has also led to new forms of communication such as television, radio, the internet, social media, and more. These mediums have made it easier than ever to connect with people from all over the world, share information, and express ourselves.

The advent of the internet has revolutionized the way we disseminate information. With the click of a button, we can access a vast amount of knowledge from all over the world. The internet has become a platform for individuals to express their ideas and opinions freely. With social media platforms, blogs, and other online forums, individuals can share their ideas and engage in discussions with people from all over the world. This increased proclivity to communicate has the potential to enhance the machinery of democracy and lead to an empowered populace. The digital revolution has transformed the world in ways that were once unimaginable. The internet has become an integral part of our lives, connecting people from different parts of the world and providing access to information and knowledge like never before. The COVID-19 pandemic has further accelerated the shift to the virtual space, with all major sectors shifting online to ensure continuity of operations. The complete digitisation of major sectors has blurred the boundaries between the real and the virtual world. However, the current shift towards digital communication has brought to light the disparity that exists between developed and developing countries in terms of internet access and technology[1].  As a result, it is crucial to acknowledge the significance of right to internet as basic human and fundamental right.

1.1 Research Questions: -

Ø  Is the Right to Internet considered as a separate fundamental right?

Ø  Which are the rights tied to the right to the internet?

Ø  In what way democracy and the right to the internet closely associated?

1.2 Objectives of The Study: -

Ø  To analyse the need the for right to access internet.

Ø  To understand how right to access internet promotes freedom of speech & expression guaranteed under Article 19 of Indian Constitution.

Ø  To understand the reason behind lack of separate status as fundamental for the right to access internet.

1.3 Statement of Research Problem: -

Shutdown of the internet have been a regular concern in India in recent years. The Indian government has shut down the internet for a variety of issues, such as the spread of propaganda, keeping order and stability, and preventing radicals from communicating. Internet shutdowns are accused of infringing on the fundamental rights to free speech and access to information. Tragically, these blackouts have resulted in loss of lives, income, and essential services. The researcher has attempted to examine the impact of the internet shutdowns as well as the lack of proper internet infrastructure which deprives masses from accessing internet which leave them behind politically, socially & economically. This study aims to correlate right to internet with democratic principles and fundamental rights.

1.4 Hypothesis: -

The study proceeds under the tentative assumption that, “Right to Internet ensures that the access to the internet is necessary to exercise and enjoy fundamental human rights, such as freedom of expression and opinion, information, and education.”

1.5 Research Methodology: -

The research approach used in this work is the doctrinal method. Using this method, the researcher composes a descriptive and detailed analysis of legal rules found in primary sources (cases, regulations & more).  The study thoroughly examines qualitative data from internet databases such as books, papers, judgements and legal journals.

1.6 Literature Review: -

Throughout the span of the study, multiple sources and publications linked to the notion of right to internet were examined. The first and foremost is the book “The Fundamental Right to Internet”[2] which examines the Internet’s transformational effect on constitutional guarantees and the possibility of classifying Internet access as an inalienable right. The text analyzes how the Internet revolutionizes established rights and paves the way for recognizing Internet connectivity as a constitutional cornerstone.

A journal article titled, “Right to Internet in India: An Analysis”[3] states that it may be positively deduced that the “right to internet” is inherently an aspect of Indian jurisprudence, and each of its facets are recognised. It examines whether the Right to the Internet is a basic right that is gaining support in the modern day.

A paper titled, “Internet Access and COVID-19: A Constitutional argument to right to internet access in India”[4] examines the legal framework governing internet access rights in India and evaluates key judicial rulings relevant to a digitally connected populace. It specifically examines the seminal case of Anuradha Bhasin v. Union of India[5] and related judgments that have shaped the scope of freedom of internet connectivity within the Indian state.

Another article titled, “The need for a separate Fundamental Right to Internet in India”[6] discusses how the digital transformation is influencing modern society and argues for a legislation to eliminate the digital divide pervasive in the population and ensure universal internet access, while evaluating key legal precedents relevant to this right.

Numerous scholarly papers, informative articles, and educational video materials accessible across various sources have likewise been reviewed and evaluated throughout the course of this research endeavour.

2. RIGHT TO INTERNET: EVOLUTION IN INDIAN JURISPRUDENCE: -

The answer for the question whether right to internet has been considered as a separate fundamental right is in the negative.  While the internet has become essential for accessing information, participating in society and exercising other fundamental rights, the judiciary has not yet recognized access to the internet as an independent fundamental right in itself. Though certain provisions in the constitution can be interpreted as implicitly guaranteeing internet access, there is no express declaration that establishes it as a freestanding fundamental right on par with the right to life, liberty, equality, freedom, religious freedom, etc. enumerated in Part III of the Indian constitution.

The courts have upheld internet access as necessary to safeguard other fundamental rights, but not as a fundamental right in and of itself with a justiciable enforcement mechanism. There are ongoing debates and legal challenges on this issue, but as of now, the right to internet remains ancillary to other rights rather than being an autonomous fundamental freedom. Though an important and indispensable tool, internet access is still viewed as a means to an end rather than an end in itself under the current constitutional framework. Its status as a fundamental right remains an aspiration rather than a guarantee.

The first & foremost landmark case is of Faheema Shirn v. State of Kerala[7] where a petition was submitted by Faheema Shirin, a hostel resident and student of Sree Narayana College, Chelanur, Kozhikode alleging discriminatory girls’ hostel policies, specifically prohibiting mobile phone usage from 6 PM to 10 PM which constrained their internet access. The petitioner was subsequently unjustly removed from the hostel upon objecting to the rules. The Kerala High Court recognized that the fundamental right to internet access constitutes an integral facet of the constitutional right of privacy and education under Article 21 of the Constitution[8]. The single judge bench of Justice PV Asha affirmed that unfettered access to the global internet ecosystem falls within the ambit of liberties that inhere in every citizen as essential for leading a life of dignity with purpose and meaning. Restricting individuals’ ability to access information and impart knowledge in the digital space would be antithetical to the progressive ideals that the nation aspires to uphold.  The landmark pronouncement brings India into alignment with numerous other democratic jurisdictions worldwide that have formally codified internet access as a basic human right and prerequisite for progress. It stands to empower millions of Indians by guaranteeing their entitlement to benefit from the internet’s transformative potential without unreasonable impediments or state interference. The ruling sets an important precedent that should inspire further legal and policy advancements to cement India’s status as a leader in the digital revolution and champion of digital rights. When the internet thrives, India thrives. When access is inclusive, opportunity is abundant. When liberties are protected, prosperity is ensured.

The Apex court handed down its momentous decision, following in the footsteps of the Faheema Shirin case. Before rescinding the special status of the erstwhile state of Jammu & Kashmir, the administration imposed a comprehensive prohibition on all communication services, including the internet. A petition was submitted by journalist Anuradha Bhasin impugning the constitutionality of the directives implementing this embargo. The Court, in its pronouncement, came perilously close to designating the Right to Internet as an independent fundamental right, and instead, ruled that the internet facilitates the exercise of other fundamental rights. The bench consisting of Justice NV Ramana & V. Ramasubramanian held that: -

“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. We are confining ourselves to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.”[9]

As a result, the right to internet in India remains an ancillary to other rights rather than an autonomous basic freedom. However, the right to the internet is implicitly protected by the constitution through other fundamental rights.

Another landmark case relating to the right to internet is of the Foundation of Media Professionals v. Union Territory of Jammu and Kashmir[10], wherein the petitioners contested the blanket prohibition on internet access in Jammu & Kashmir and sought an upgrade from 2G connectivity to 4G, arguing that the diminished bandwidth infringed upon various fundamental rights. While recognizing the need to balance national security and citizens’ fundamental rights, the Supreme Court provided no immediate relief. The Court also noted that “any restrictions and their scope, both territorially and temporally, must correspond to what is actually necessary to counter an emerging situation.” It ordered the government to establish a review committee to re-evaluate shutdowns and determine the appropriateness of other alternatives suggested by the petitioners. However, the Court ultimately ruled that orders limiting internet speeds were not unconstitutional. Hence, it points to the notion that the right to internet, though ancillary to other fundamental rights and lacking independent status as a fundamental right, remains subject to reasonable restrictions.

3. DOWNSIDE OF RECOGNISING RIGHT TO INTERNET AS A SEPERATE FUNDAMENTAL RIGHT: -

It is known to all that universal access to the internet and designating the right to internet access as a distinct fundamental right would have innumerable advantages, the internet has transformed numerous aspects of society and governance, enabling greater transparency and accountability. However, the Indian judiciary has been hesitant to classify it as a fundamental right on par with the rights to equality, life, liberty, freedom, dignity and maintains its status as ancillary right with constitutional protection. Establishing internet access as a fundamental right would help ensure equal opportunity and level the playing field in a digital age where connectivity is crucial for progress. It could help close the digital divide and facilitate the realization of other rights that depend on access to information and services online. Without codifying it as a fundamental right, internet access remains a privilege that the government can restrict at will, threatening civil liberties and dissent.

However, there are certain drawbacks in designating right to internet as a fundamental freedom. While internet access has become increasingly vital for participation in society and access to information, it is still not an essential requirement for life like food, shelter, healthcare or education. One can survive and even thrive without internet connectivity[11].  The internet ecosystem is also largely privately built and maintained. Conferring fundamental right status would place an undue burden on internet service providers to provide universal access without adequate compensation. It may discourage private investment in internet infrastructure and slow down innovation.  Recognizing internet access as a fundamental right at this juncture may also be premature. The internet continues to evolve at a rapid pace with new technologies, services and business models emerging constantly. Things considered as essential today may be irrelevant tomorrow. A fundamental rights framework needs to be more enduring.  There are pragmatic concerns as well around ensuring equitable and affordable access for all if it becomes a fundamental right. The costs of implementation and ensuring minimum standards of service across geographies could be quite high. It may lead to higher taxes, fees or costs being passed on to consumers.

Another set of reasons is that designating right to internet as a fundamental right may lead to its misuse such as war mongering, religious propaganda, and other malicious activities. Providing universal internet access as a separate fundamental right could enable the spread of extremist ideologies, false information, and threats to national security if not regulated properly. While increased connectivity has benefits in terms of access to knowledge and opportunities, it also introduces challenges in controlling the dissemination of harmful content and preventing the internet from being exploited for illegal purposes.  There are valid arguments on both sides of this issue, but designating internet as a separate fundamental right must be done judiciously by considering all implications to avoid unintended consequences that undermine other rights and national interests. With greater access comes greater responsibility, and both must be balanced if the right to internet is enshrined as a fundamental guarantee.  The Chief Justice of India, DY Chandrachud, recently commented on the proliferation of humorous short videos based on court proceedings circulating on social media platforms. As he stated, “Matters before the court are of the utmost seriousness. The live streaming, we now provide has its downsides. We, as judges, must receive training as in this age of social media, every word uttered in court proceedings immediately enters the public domain, as we realize when hearing arguments before the constitution bench. Citizens often fail to comprehend that statements made during a hearing merely aim to further a dialog and do not reflect how a case may ultimately be decided, though they perceive them as such. Live streaming or social media interface introduces new demands on us as judges, yet we must build robust cloud infrastructure to enable live streaming.[12]” Overall, the debate around internet access as a fundamental right is complex with reasonable positions on multiple sides. Careful deliberation is needed to craft policies that maximize the benefits of connectivity while mitigating the risks of misuse.

4. CONCLUSION & WAY FORWARD: -

The internet was already growing at a breakneck pace by encompassing nearly all spheres of life within its scope. Entire industries were swiftly migrating online, transforming how people work, learn, play, shop, and interact with one another on a daily basis.  While the crisis expedited the pace of digital transformation, it did not inaugurate these trends, it merely intensified their momentum. The pandemic served as a reckoning, highlighting the degree to which internet access has become fundamental to participation in society. It is now unequivocally clear that internet connectivity should be recognized as a basic human right, not a privilege reserved for those who can afford it. A post-pandemic future relies upon universal access to digital spaces and all they have to offer. Only then can we build a nation that truly leaves no one behind.

The Indian judiciary and legislature have been endeavoring to transition towards digital processes in order to propel the digital revolution forward. By embracing technology and streamlining procedures into automated systems, these institutions aim to enhance efficiency, reduce costs and processing times, improve transparency and accessibility, and keep pace with advancing innovations.  Through digitization of records, e-filing of cases, video conferencing for hearings[13], and online publishing of judgments, the Indian legal system is progressing into an era of advanced digitization and smart governance. The potential benefits of a tech-enabled judiciary and legislature are immense, as they would make the system more responsive, accountable and citizen-centric.  While the progress has been steady, there is still much scope for improvement and greater technological integration. By continuing down the path of innovation, the Indian legal framework can become faster, smarter, and better equipped to serve the needs of a digitally-empowered nation. Overall, the efforts to digitally transform the judiciary and legislature demonstrate India’s commitment to building a robust, efficient and futuristic legal infrastructure. The Indian legal system acknowledged the significance of the internet, facilitating the declaration of a fundamental right to internet access. Recognizing internet usage as an independent fundamental right would prevent the internet from being a privilege limited to the affluent, and also to ensure that reasonable constrains are placed on its usage to curb misuse, while still preserving it as a tool for empowerment and advancement of the common person.