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Right to Internet and Fundamental Rights

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With the escalation in technology Internet portray a significant role, so a primitive question arises that:
whether access to internet can be considered as a human right or not? In 2016, UNHRC General Assembly articulated access to the Internet an essential human right. Internet is the undiscovered ocean of information and in present the greatest supplier. Mr. Vinton G. Cerf, one of the fathers of Internet said that The Internet is very important; however, it cannot be elevated to the status of Human Right[1].

Technology in his view is an empowering agent of rights and not privilege all by itself. India has a legislation which deals with the crimes taking place in cyberspace i.e. The Information Technology Act, 2000 (Act 21 of 2000).

The Apex Court propounded in its recent judgement that:
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 Article19(1)(g), but the restriction of such Fundamental Rights should be according to Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality[2]. Right to access Internet is an integral part of Right to education and Right to Privacy under Article 21A and Article 21 of the Constitution of India respectively[3]. Internet Access not only enhances the opportunities of students to acquire knowledge but also enhances the quality of Education.

Introduction:
Constitution of India is the sovereign law and the rights given under Part III of the Indian Constitution are the Fundamental Rights which includes Right to Freedom; Right against Exploitation; Right to freedom of Religion; Right to Minorities; Right to Equality and Right to Constitutional Remedies. These rights play an indispensable role because they are most important for the attainment of the full intellectual, moral, and spiritual status of an individual.

Internet is a universal computer network distributing a variety of information using an interconnected network of TCP/IP (Transmission Control Protocol/ Internet Protocol). In today's Hi-Tech world, everything is going electronic and to access them with ease Internet plays a crucial role, even the automotive industry is manufacturing vehicles that run over electricity and can be accessible directly by mobile phones with the help of internet. Internet is leading us to a future of intelligence and autonomous vehicles.

The Internet is considered as an important vehicle for the promotion of the Convention among women[4]. Taking in account the report submitted by Turkmenistan in 2012, the CERD Committee noticed that Internet based sources (e.g. blogs, websites) play an important role in the promotion of human rights concerning minorities and thus the state should refrain from restricting access to these sources and any other information over Internet in violation of the freedom of expression as provided for by international law[5].

Right To Internet A Basic Human Right:

In 2016, UNHRC General Assembly articulated access to the Internet an essential human right. Web could be a key for protecting the other fundamental human rights, as it not only provides a variety of information but also helps to live life with ease. We are living in a world where Artificial Intelligence (AI) will soon replace manpower and everything will be done on a single vocal command, but to take the benefit of these resources Internet portray a significant role.

In the current situation, gigantic political discussions happen over the Internet, in this manner somehow or another, our political rights must be practiced by means of Internet, clarifying that Internet access is required for individuals to have equivalent chances to guarantee the utilization of their political freedom. In India, Kerala was the first state to declare the Right to Internet a basic Human Right[6], Internet is the pathway to the future and Right to Access Internet is necessary for living a decent life and therefore is a Moral Human Right.

Relationship between Internet Access and Human Rights:
Mobile Internet Service and Broadband Internet provide a life support system to the citizen of India from all walks of life. Internet is not only a source of information, communication and access to social media, it is much more than that. Internet does not only portray a significant role for businesses and occupations rather it is paramount to the home-based workers and small and individual owned enterprises which sell their product and services online giving them a means for their survival.

Internet provides access to transportation for millions of people around the country by providing them a virtual platform. Internet is a mode of access to the education for students who take online exams and do online diploma and other courses and thus it is fundamental to facilitate the advancement and zeal of the Right to Education. Internet is getting basic to your day by day life just as an underwriter of financial development and impetus for social turn of events.

Internet Access A Part Of Fundamental Right:

In Anuradha Bhasin vs. Union of India and Ors.[7] Apex Court in its recent judgement observed that 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), but the restriction of such fundamental rights should be according to Article 19(2) and (6) of the Constitution, inclusive of the test of proportionality. Internet is an imperative tool for trade and commerce and plays an important role in carrying e-commerce business as it provides a virtual platform to a businessman which is more affordable.

The Apex Court in Maneka Gandhi v. Union of India[8] observes that "procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Article 21 has to be fair, not foolish, carefully designed to effectuate, not to subvert, the substantive right itself".

Internet Access has become a basic necessity for the students as the information has become more accessible to them. In Faheema Shirin RK vs. State of Kerala and others[9] Hon'ble High Court stated that Right to access internet is a part of Right to education and Right to Privacy under Article 21A and Article 21 of the Constitution of Indian respectively. Internet Access not only enhances the opportunities of students to acquire knowledge but also enhances the quality of education.

In PUCL vs. Union of India[10] Supreme court had observed that:
Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. Freedom here means the right to express one's opinions freely by word of mouth, writing, printing, picture, or in any other manner.

Internet aids the citizen to express their opinions on a global platform and therefore is covered under the ambit of Article 19(1)(a) of the Constitution. Article 21 of the Constitution has a more extensive degree and is an unfilled jar into which individuals must pour its substance in the light of its experience. There is no contrast between a right given under part III of the Constitution and those which have been proclaimed based on the decisions given by the Apex Court.

Countries Which Have Declared Internet Access A Basic Human Right:

  • Estonia: In February 2000, the Estonian Parliament sanctioned the new Telecommunications Act, including Internet Access a essential Human Right.
  • Greece: In 2001, Greece changed its Constitution and embedded Article 5A encouraging the option to get to electronically transmitted data, creation, trade, and dispersion thereof, is a commitment of the State.
  • European Union: On 25th November 2009, Directive 2009/136/EC of the European Parliament and Council went into power and amended Directive 2002/22/EC and had permitted data communication a data rate which is sufficient to permit functional Internet access.
  • France: On 10 June 2009, the Constitutional Council said that the law penetrated security by empowering the Haute Autorité pour la Diffusion des Œuvres et la Protection des Droits sur Internet (HADOPI) to track individuals web movement, and then finally declared Access to the Internet a Fundamental Human Right.
  • Finland: In 2010, Communications Market Act, which expressed that widespread help additionally incorporated an utilitarian Internet association and had articulated Access to the Internet a Fundamental Human Right via amendment.
  • Costa Rico: In 2010, The Apex Court of Costa Rico had declared access to Internet a basic human right. Under Article 33 of the Constitution of Costa Rico Access to the Internet is a Fundamental Human Right.
  • Spain: In November 2009 the Spanish citizens was entitled to have access to the Internet because of the Act 2/11 of March 2004 which states that sustainable economy should affix broadband access to its universal service.
  • Canada: In 2016, Canadian Radio Television and Telecommunications Commission pronounced Internet access a fundamental assistance.


Internet Shutdowns And Human Right

Internet shutdown is merely a blanket ban imposed by the state on access to Internet Service, either mobile or fixed line, and is not only a block on social media, but it also affects businesses, welfare schemes, education, and impact on Human Rights. In a developing economy like India shutting down Internet service is like closing all roads for the development of the economy and even shutting down all the banks at once.

On 4th August 2019, Web shutdown was forced in Jammu and Kashmir when Parliament revoked Article 370 of the Constitution and the State of J&K was bifurcated into Union Territory of J&K and Ladakh, prompting 213 days shutdown which was proceeded till fourth March 2020 bringing about India's longest Internet shutdown.

In a decade there have been 391 Internet Shutdowns all over India resulting in rapid decrease in the growth of technology, where the government had taken initiated for the growth of IT sector by starting programs like Digital India which has nine pillars, out of which six are directly related to Internet access, but suspending internet for such long duration not only creates a barrier for such programs but also affects rights of citizens. Suspending Internet Services in one region of the country expeditiously reflects human suffering elsewhere which also cause an impact on the economy.

In one of the Landmark case,[11] Apex Court held that a law depriving a person of personal liberty has not only to stand the test of Article 21 but also Article 14 and Article 19 of the Constitution as well. Article 14, 19 and 21 forms the Golden Triangle and cannot be read in isolation as they are mutually inclusive. The above-mentioned Articles are of prime significance and inhale essentialness in the idea of rule of law. The Golden Triangle enables full security to individuals from any infringement upon their rights, therefore, shutting down internet services is encroaching individuals' rights.

Conclusion:
Internet plays a key role in the development of an economy as we are living in an era where Internet is an essential part of individual life. In Anuradha Bhasin vs. Union of India and Ors. The Apex Court held that freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys Constitutional protection and therefore is indispensable to Article 19 of the Constitution subject to reasonable restrictions. Suspending Internet service not only obstruct conducting businesses online rather it also obstructs an individual from their source of livelihood, even in case of emergencies Fundamental Right given under Article 21 of the Constitution of India cannot be taken away.

As held in Maneka Gandhi vs. Union of India a law denying an individual of personal liberty' must stand up the scrutiny of Article 21, Article 19, and Article 14 which are the Golden Triangle of the Constitution of India and therefore are essential Human Rights. Human Rights Council of United Nations General Assembly and various other countries like Spain, Costa Rico, Finland, France, the European Union, Estonia, and Greece had declared Internet Access a Basic Human Right. Rights conferred under Article 14, and Article 21 is the absolute fundamental rights which cannot be curtailed. Hence, Internet Access comes under the parameter of the Golden Triangle.


End-Notes:

  1. Vinton G. Cerf, Internet Access is not a Human Right, The New York Times (January 04, 2012).
  2. Anuradha Bhasin vs. Union of India and Ors. (2020)1MLJ574.
  3. Faheema Shirin RK vs. State of Kerala and Ors.; AIR2020Ker35.
  4. CEDAW Committee, Concluding observations: Tuvalu (2009), CEDAW/C/TUV/2, § 18.
  5. CERD Committee, Concluding observations: Turkmenistan (2012), CERD/C/TKM/CO/6–7, § 25.
  6. Faheema Shirin RK vs. State of Kerala and others; AIR2020Ker35
  7. (2020)1MLJ574
  8. [1978]2SCR621; AIR 1978 SC 597
  9. AIR2020Ker35
  10. AIR 1997 SC 568
  11. Maneka Gandhi vs. Union of India [1978]2SCR621; AIR 1978 SC 597

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