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Right to Internet: Fundamental right

Can anyone of us here, imagine a world without internet? I think very limited or none. This is how much we are dependent on this eight-letter word. Living in the 20th century its next to impossible for us to live in a world where we wonít have access to internet. Now letís imagine, fingers crossed, that what if one night at the stroke of midnight in a grand Cinderella moment, the service of internet is stopped. According to me it would be waking up to something right of the Walking Dead, as people search for answers in a world gone mad.

Internet was invented in the year 1983 on January 1. Internet alone wasnít sufficient to its users at first. It was around 1990s that World Wide Web developed by Tim Berners Lee gained recognition and turned as a breakthrough. Since then, we have only seen the stakes going high i.e., our dependency increasing day by day. Nothing seems wrong when it comes to the dependency we have on Internet, cause itís worth it.

Some people might not agree that we canít live without these services provided to us like Internet, but the blatant truth is that yes, we have become best friends with this term and what is wrong to use something simply to make your work easier and to be done at double speed. Now with the soring heights of technology the question arises that whether right to internet should be a human right or not? It was after this that the judgement by the court followed in Kerala high court in Faheema Shirin v. State of Kerala, 19 September 2017, where the right to internet access was recognised as a fundamental right forming a part of right to privacy and the right to education under Article 21 of the constitution. In India, Kerala was the first state to declare access to Internet, a basic human right.

In Kerala which is the most literate state of India, the state government is undertaking the project where they have decided to contribute internet to 20 lakh poor families.[5] These types of initiatives must be taken by all other governments then only every Indian citizen will get the fundamental right to use the internet. However, a state cannot technically declare a service, facility or any kind protection as a fundamental right as it requires interpretation or amendment to the constitution by the Parliament.

Although after some years finally in 2020 it was made a fundamental right all over India, except in cases of certain conditions explicitly mentioned in the constitution.

This change was significantly seen after Anuradha Bhasin & Anr v. Union of India and Ors [2020], the Supreme Court upheld the Right to Internet. It was filed on 10th January, 2020, the internet ban in Jammu and Kashmir was being challenged which was happening from 4th August, 2019.

The Supreme Court said that restriction of physical movement along with shutting down of all internet communications violated Article 19 of the constitution since Right to Internet is a part of Article 19 (1a) which is a fundamental right of the constitution. The Supreme Court also said that due to immediate threat or due to any security concern, temporary ban on services is acceptable but suspension of internet services for an indefinite period is not acceptable since the balance between the national security and human rights should always be maintained.

The court said that internet has become an essential part of everyday life and therefore the freedom of speech and expression and the freedom to practice any profession requires the right to internet as a fundamental right. After this judgement the use of 2G internet was allowed in Jammu and Kashmir, but following this another case was filed.

In this case of Foundation of Media Professionals v. Union Territory of Jammu and Kashmir & Anr [3], the ban on 3G and 4G internet services in Jammu and Kashmir was challenged. The argument was that the ban on internet services violated many fundamental rights like Right to Education, Right to Profession, Right to Health, Right to freedom of speech and expression and many other fundamental rights. The Supreme Court however said to resume 4G services in Jammu and Kashmir and gave directions to restart 4G services and also ordered a committee. Hence after many discussions, the centre directed to recommence 4G internet services on limited areas of Jammu and Kashmir after 15th August as a trial basis.[4]

Indian constitution makes the right to freedom of speech and expression a fundamental right under Article 19[1][a] of the constitution. The Supreme Court of India has also expanded this scope on many occasions and the latest expansion can be seen well by the decision taken by it in March 2020. This new expansion was made to keep pace with the innovation in technology. Internet is the primary source of information to millions of Indian citizens.

Also, a non -citizen can avail the same benefit but cannot claim it as a fundamental right. Article 19 of the constitution lists all the Fundamental Rights under the Protection of certain rights, but as we all know that rights always come with some restrictions. The restrictions which can be imposed are mentioned in clause [2] of the Article 19.

The right to Internet access is also known as right to broadband or freedom to connect and was made with a view so that all people can use internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental rights, being the responsibility of the state to ensure that Internet access is broadly available to all the regions and that states must not unreasonably restrict an individualís access to Internet.

But the motive behind every task need not be good. So is in the case of Internet which can also be used for evil purposes, hence the court acknowledged that Internet can be prohibited due to overarching reasons and that is valid, however, it must only be done under unavoidable circumstances. It was also noted that the imposition of restrictions under Section 144 of the CrPc can be done on the apprehension of danger but it cannot supress legitimate opinion.

Delivering this milestone judgement, the Supreme Court directed the state of Jammu & Kashmir to restore Internet services in institutions providing essential services like hospitals and educational places, and to review all orders imposing curbs in the Union Territory within a week after its judgement.

The state of Jammu and Kashmir however hasnít completely accepted the fact that Right to Internet is a fundamental right. Right to Internet access is not a fundamental right. Free speech and expression, including the fundamental right to trade, business and occupation over the Internet, can be curtailed by the State in general public interest, the Jammu and Kashmir government has told the Supreme Court.

According to them this right is nowhere a part of the rest of the fundamental right and making it a fundamental right can hamper the security of their state. The discussion remains never ending in the case of this state and many objectionable argumenta are yet to come. However, it would be iffy to say that Right to Internet isnít a fundamental right. This is also because the Supreme Court has held that the restrictions on internet have to follow the principles of proportionality under Article 19(2). Written By: Drishti Taank - University: Manipal university, Jaipur
Email adds:[email protected]

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