Right to Internet as a Fundamental Right

Right to the Internet in the International Forum

In 2011, the United Nations Human Rights Council (UNHRC) adopted a report of the Special Rapporteur, Mr. Frank La Rue on the Promotion and Protection of the Right to Freedom of Opinion and Expression[1]. The report stressed the importance of universal access to the Internet and it further addressed the growing role of the Internet in the enjoyment of the right to freedom of opinion and expression. Frank La Rue argued that restricting access to the Internet violates Article 19 of the International Covenant on Civil and Political Rights (ICCPR). This was the first step in elevating the debate about internet access as a human right to the UN fora.

In 2016, the UNHRC adopted a resolution on the promotion, protection and enjoyment of human rights on the Internet.[2] The resolution reiterated the role of the Internet in the freedom of speech and expression and condemned the intentional prevention or disruption in access to the Internet. It called upon states to refrain from and cease such actions. This resolution was widely reported to have declared internet access as a human right. However, certain scholars are of the view that the resolution itself did not declare a new right but merely laid down how the Internet had become an indispensable means for the enjoyment of well-recognized rights such as the right to freedom of speech and expression, right to education, right to freedom of assembly and association and others.[3]

In another resolution adopted in 2018, the UNHRC reaffirmed that the same human rights people have offline, must be protected online[4]. This resolution is the fourth one titled “the promotion, protection and enjoyment of human rights on the internet” and it forms part of an initiative that began in 2012.

India and the Right to Internet

Kerala High Court Judgment

In September 2019, a Single Bench of the Kerala High Court held in a monumental decision that the right to have access to the Internet was a fundamental right as it was a part of the right to education as well as the right to life protected under Article 21 of the Indian Constitution.  This decision came in the case of a petition filed by a student in Kerala, who was expelled from her college for using her mobile phone beyond restricted hours. The court held that mobile phones have now become a necessary part of life and “unavoidable to survive with dignity and freedom.” Justice PV Asha relied on the UNHCR’s recognition of Internet as a means to fulfill the right to education to set aside the expulsion and the hostel rules that restricted female students from using their phones between 6 P.M to 10 P.M.  The court stated, “When the Human Rights Council of the UN has found right to access 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 in the eye of law.”[5]

Supreme Court Judgment

The Supreme Court judgment on January 10th, 2020 elicited mixed responses. The Apex Court in the case of Anuradha Bhasin vs. Union of India[6] had to decide on whether the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the Internet is part of the Fundamental Rights under Part III of the Constitution. The court was also to decide whether the government’s action of prohibiting internet access was valid.

Background

Firstly it is important to address the background in which the Anuradha Bhasin Judgment was delivered. To quote the judgment authored by Justice Ramana, “The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas.”[7]

Aggrieved by these restrictions the petitioners, Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad, approached the Supreme Court under Article 32 seeking to quash the orders and notifications that discontinued all forms of communication and internet services in the valley. They also sought an order that would allow the free and safe movement of journalists and media personnel.

The lead petitioner, in this case, was the executive editor of Kashmir Times, Anuradha Bhasin. She challenged the curtailment of the Internet in Jammu and Kashmir on the ground that it restricted her freedom of speech. She contended that the Internet was essential in her profession and without it, the print media had come to a “grinding halt”.

Judgment

After hearing contentions raised by both sides, the three-judge Bench of the Apex Court concluded that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g) of the Indian Constitution. The court went on to state that measures to restrict internet access must pass the test of proportionality to be constitutionally valid wherein the state has to prove that the measures adopted were proportional to the intended goal and were the least intrusive measures possible. Moreover, the court stated that since the complete suspension of internet and telecom services was a drastic measure it should only be resorted to in “necessary” and “unavoidable” conditions. 

However, the Hon’ble Supreme Court in its judgment failed to directly address the legality of the Internet shutdown in Kashmir even though it was one of the issues framed to be heard. The three-judge Bench did not comment on the issue, rather it directed the government to form a commission under the Telecom Suspension Rules, 2017 to review the Internet ban in Kashmir against the tests outlined in its judgment and lift those that were not necessary or did not have a temporal limit.

Even though, the judgment did lay down important legal principles it failed to give relief to Kashmiris. The apex court solely asked the government to “review” its orders when it could have rightfully directed the restoration of rights to Kashmiris, which had been denied to them for six months. In effect, the January 10 judgment offered too little, too late for the people of Kashmir.

There was much debate over this judgment with many arguing that the Supreme Court had not declared the right to Internet as a fundamental right but had merely recognized the crucial role played by the Internet in the enforcement of certain fundamental rights. However, by declaring the Internet as an enabler of fundamental rights, the court has in effect laid down that breach of the right to access the Internet would consequently be considered as a breach of fundamental rights.

Why the Supreme Court Judgment is of Paramount Importance Today

In today’s day and age, the Internet acts as a primary source of communication, information and income for millions around the world. The UNHRC recommendation took into account the enormous dependency on the Internet while declaring it as a core enabler of several well established human rights. Even so, governments around the world have been resorting to internet shutdowns as a means of restoring and maintaining law and order. In India, 385 shutdowns were recorded between January 2012 and March 15th 2020.[8] Out of these 237 were preventive and 148 were reactive, i.e., imposed to contain law and order breakdowns. 

An Internet shutdown is a very powerful tool that can easily be misused by authorities. In light of the UNHRC Recommendations and the Supreme Court judgment, it is hard to ignore how internet shutdowns severely curb a citizen’s freedom of speech and expression. Especially in India, the Temporary Suspension of Telecom Services Rules, 2017 that supposedly lays down rules for internet shutdowns, is riddled with loopholes. Senior advocates have pointed out that the 2017 Suspension Rules have managed to formally institutionalize the shutdown regime but have not brought about accountability. The rules allow internet shutdowns for a variety of reasons and even though the rules mandate that directions for internet shutdowns must be issued via reasoned orders no public database of orders has been maintained by the Government. The review committee formed under these rules is not vested with the power to take action even if it finds the internet shutdown to be unreasonable.[9]

Hence, to conclude, the recent Supreme Court judgment which has given the Right to Internet the colour of a fundamental right is a key instrument in curbing the misuse of internet shutdowns in India. By mandating that orders imposed under Section 144 of Criminal Procedure Code have to be published and that internet shutdowns must pass the test of proportionality, the Supreme Court has sown the seeds for preventing arbitrary internet shutdowns by the Government in the future.


[1] Human Rights Council, Report of the Special Rapporteur on the promotion and protection of  the right to freedom of opinion and expression, Frank La Rue, 16 May 2011, A/HRC/17/27

[2] UN General Assembly, The Promotion, Protection And Enjoyment Of Human Rights On The Internet, 27 June 2016, A/HRC/32/L.20.

[3] “Internet Access as a New Human Right? State of the Art on the Threshold of 2020”, Łukasz Szoszkiewicz, September 2018

[4] UN General Assembly, The Promotion, Protection And Enjoyment Of Human Rights On The Internet, 4 July 2018, A/HRC/38/L.10/Rev.1

[5] Faheema Shirin R.K vs. State Of Kerala And Others (WP(C)No.19716 OF 2019(L))

[6] (2020) SCC Online SC 25

[7] Anuradha Bhasin vs.Union of India, (2020) SCC Online SC 25, Para 3

[8] Data available at https://internetshutdowns.in/

[9] “India’s Internet Shutdown Rules Need A Relook, Experts Say”, Bloomberg Quint, October 27, 2019.


Huda Syed from School of Excellence in Law, Chennai

“I have a growing interest in the field of international law and human rights law. I love to speak and write about contemporary social, political and legal issues. “

Edited By: Rupal Chikara

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