RIGHT TO ACCESS INTERNET -A Fundamental right
The Access to Internet has transformed and is continuing to transform the lives of people around the globe. It has become one of the most essential elements of the lives of people in the 19th century, the dependency of people on the internet has increased significantly. The areas such as communication, education, trade, commerce, etc. have progressed greatly since the invention of the internet and its access being given to the public. The Right to Access the internet was recently declared a fundamental right by the Kerala High Court in the case of Faheema Shirin R.K. vs State Of Kerala. However, the internet is a great innovation that has its negative side as well. In recent times, this internet access and particularly social media have been misused by the anti-national and terrorists to destabilize the peace and stability in the society, which has led to a ban on internet services and social media, at times, in various parts of the country. This is done by making the Right to Access Internet subject to reasonable restrictions under the provisions of the Constitution of India and various other statutes
2. Right To Access Internet – A Fundamental Right Under Constitution Of India
Freedom and security have always been facing. Liberty and security have always been at loggerheads. The question before the courts on the issue of the right to access the internet, is what do we need more, liberty or security? The pendulum of preference should not swing in either extreme direction so that one preference compromises the other. The Court must ensure that citizens are provided all the rights and liberty to the highest extent in a given situation while ensuring security at the same time. Indian constitution makes the right to freedom of speech and expression a fundamental right for all citizens. It has been listed in Article 19 (1) (a) of the Constitution. The Court has on many occasions expanded the scope of the right to freedom of speech and expression.
Internet is the primary source of information to millions of Indian citizens. The recent court ruling that declared the right to access the internet as a fundamental right is also in sync with the United Nations recommendation that every country should make access to the Internet a fundamental right. In the case of Faheema Shirin. R.K vs State Of Kerala, the court held that the freedom of speech and expression through the medium of the internet is an integral part of Article 19(1)(a)and accordingly, any restriction on the same must be reasonable and under Article 19(2) of the Constitution.
The court also observed in the case of Anuradha Bhasin vs Union of India, that the internet is also a very important tool for trade and commerce. The globalization of the Indian economy and the rapid advances in information and technology has opened up vast business avenues and transformed India into a global IT hub. There is no doubt that there are certain trades that are completely dependent on the internet. Such a right of trade through the internet also fosters consumerism and the availability of choice. Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article19), subject to the restrictions provided under Article 19(6).
A reasonable restriction on the right to access the internet
The Government is entitled to restrict the freedom of speech and expression guaranteed under Article(19)(a) if the need is so, in compliance with the requirements under Article19(2) It is in this context, while the nation is facing such adversity, an abrasive statement with imminent threat may be restricted if the same impinges upon sovereignty and integrity of India. The question is one of extent rather than the existence of the power to restrict.
- Principle of Proportionality – Scope of Restriction on Right to Access Internet
The Restriction on free access to the internet must comply with the Principle of Proportionality. Under the principle, the court will see that the legislature and the administrative authority “maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve”. The legislature and the administrative authority are, however, given an area of discretion or a range of choices but whether the choice made infringes the rights excessively or not is for the court.
- Restrictions under Article 21 of the Constitution of India
It was held by the Kerala High Court that in the case of Faheema Shirin. R.K vs State Of Kerala, that the right to have access to the Internet becomes part of the right to education as well as the right to privacy under Article21 of the Constitution of India. In the context of Article21, any action by the state must be justified based on a law that stipulates a procedure that is fair, just, and reasonable. The law must also be valid regarding the encroachment on life and personal liberty under Article21 An invasion of life or personal liberty must meet the threefold requirement of:-
(i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate State aim; and
iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.
- Restrictions under Section 144 of CRPC
Section 144, Cr.P.C. enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is not abused. In the case of Madhu Limaye and Anr. V. Ved Murti and Ors., the Court highlighted that the power under Section 144, Cr.P.C. must be:
(a) exercised in urgent situations to prevent harmful occurrences. Since this power can be exercised absolutely and even ex parte, “the emergency must be sudden and the consequences sufficiently grave”
(b) exercised in a judicial manner that can withstand judicial scrutiny.
It must be noted that the restriction upon such fundamental rights should agree with the mandate under Article (19)(2) and (6) of the Constitution, inclusive of the test of proportionality. Any order suspending internet issued under the Suspension Rules must adhere to the principle of proportionality and must not extend beyond the necessary duration.
The ban on the Right to Access the Internet is a “draconian measure” for any state or country. Its effects have far-reaching consequences and affect multiple spheres of life such as communication, education, trade, commerce, etc. There is no denying that the internet can be used for products as well as destructive purposes. However, the problem of terrorism and unrest in society requires a multi-faceted approach as the restriction of internet services is not the ultimate but only a temporary solution. Further, the indefinite ban on the internet cannot be justified as every citizen is entitled to get the same rights and facilities under the Rule of Law. The restriction is seen in violation of freedom of speech and expression, right to free trade and avocation, right to education, right to health which are essential fundamental rights under the constitution of India.
There is constant debate on whether the Right to Access the Internet is a fundamental right of citizens of India or not, owing to the contrasting contentions of the Judiciary and Executive authorities. This continuous debate and lack of clarity are affecting the lives of millions of people who are facing difficulties to live a normal life. It is high time that the Hon’ble Supreme Court, being the ultimate interpreter of the Constitution decides the fundamental nature of the Right to Access Internet as the dependency on the internet is increasing day by day and millions of people are aggrieved and demand justice for themselves.
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