Author: Akansha Somani
III Year | St. Wilfred College of Law

Introduction:

Have you ever wondered about the power of this high-speed network that keeps you hooked all the time? During the lockdown, when we were busy surfing about the advancing of the 5^th generation of network, there were places where people were deprived of basic human rights like education because of the non-availability of digital services during the pandemic. We have become so dependent on Google that we can’t think of a complete future without accessing the internet. Lawmakers and international organizations have a similar view on this and thus gave it a status of human right.

Human Right or Fundamental Right:

The difference between the two lies in the territorial boundaries. Human rights are recognized nationally and universally, whereas fundamental rights are rights that a nation guarantees. For instance, the fundamental rights enshrined in the constitution of India for the overall development of a person. The right to access the internet comes under the purview of both human and fundamental rights. In 2017, Kerala was the first state in India that tagged “accessibility to the internet” as a basic human right.[1]

Further, a question arises, why is this right to the internet gaining unprecedented popularity? The internet became a synonym for information since people use it as a medium to impart education, playing a major role in the profession, trade, and commerce. The right to the internet has found its place under Article 19 of the Constitution. Connectivity and communication are accessible through the internet. It plays a significant role when it comes to learning, knowledge, transacting globally, etc. 

Accessibility of the internet globally:

The inaccessibility of the internet is enforceable. However, during the situation of emergency (Articles 352 to 360), the government may suspend all rights except those under Articles 20 and 21. [2] India has the highest number of disconnected people despite having the second largest online market globally, which means that 50% of the population still doesn’t have internet access[3]. Unlike India, not all countries can use internet services freely and uninterruptedly. In North Korea, Saudi Arabia, Burma, only a few people among the elite class and government areauthorized to use internet services. On the other hand, countries like the USA, Canada, Portugal, Sweden, and Germany are among those countries which provide free Wi-Fi facilities.[4] China stands first with the highest number of internet users – more than 934 million users monthly.[5]

Internet’s role in Democracy-building:

Broadly speaking, the pandemic affected the economy as a whole. During this period, the number of internet users went up as almost every profession had to turn digital, and in turn connectivity issues were raised. Cyber theft and cyber crime are other challenges for countries turning digital. When the security of the state is in question, it can impose restrictions on internet usage. Hence, the development of a nation is not possible without digitalisation. In 2016, the United Nations Human Rights Council (UNHRC) issued a guideline that the right to access the internet should be made a fundamental right.[6]

Case of Jammu and Kashmir:

In 2019, Jammu & Kashmir became a union territory.[7] Section 144 of CrPC imposed to maintain the security in the territory of Jammu and Kashmir and protect against any act of terrorism.[8] Consequently, internet services shut down and considered the longest shutdown in history.[9] Meanwhile, many important judgments came that challenged such suspension and changed the mindset of the people and judiciary regarding the impact of imposing restrictions on internet services.

Fahima Shirin v. State of Kerala[10]

In this case, the Kerala high court after considering the learning process and development of students state the judgment that the right to access the internet is a fundamental right and connected it with Article 21- Right to life and personal liberty, and right to education. The court also removed the restrictions imposed by the hostel on Internet usage. 

Anuradha Bhasin v. Union of India[11]

Foundation of media professionals v. Union of India[12] (Also known as 4G case)

In this judgment, the ban on 3G and 4G Services in the territory of Jammu and Kashmir was challenged because such a ban violates the right to education, the right to the profession, and the right to health. A special committee set up by the Supreme Court of India to restore 4G speed from the existing 2G speed. The special committee permitted 4G speed in limited areas after 15th August 2020.

Conclusion:

UDHR has specifically referred in its Article 19 that the right to access the internet is actually the right to receive information and exchange opinions without any interference. Article 19 is considered a soft law and unenforceable. On one hand, some countries are shutting down internet services due to security or other reasons. While on the other hand, some other countries are becoming aware and reversing the ban on Internet Services.

Accessing the internet freely is a path to develop and promote goals for the betterment of the country’s future. This right is also known as the “right to connect” and the “right to broadband”. Since the Supreme Court has declared this as a fundamental right, no authority or government can restrict a user from accessing the internet. 

Footnotes:

[1] Special Correspondent, Access to Internet is a basic right, says Kerala High Court, The Hindu (Sep. 20, 2019 at 12:30 PM) (Date Accessed: Mar. 05, 2021 at 3:16 PM), https://www.thehindu.com/sci-tech/technology/internet/access-to-internet-is-a-basic-right-says-kerala-high-court/article29462339.ece.

[2] Harshit Khare, Position of Fundamental Rights during emergency, Legal Service India (Date Accessed: Mar. 05, 2021 at 1:37 AM), http://www.legalservicesindia.com/article/589/Position-of-Fundamental-Rights-during-Emergency.html.

[3] ttps://www.weforum.org/agenda/2020/08/internet-users-usage-countries-change-demographics/

[4] Christina Patrick, Top 20 Countries With Free Wifi: Stay Connected To Your Online World On The Go!, Travel Triangle (Date Accessed: Mar. 05, 2021 at 03:54 PM), https://traveltriangle.com/blog/countries-with-free-wifi/.

[5] Megha Mandavia, India has second highest number of Internet users after China: Report, The Economic Times (Sep. 26, 2019) (Date Accessed: Mar. 06, 2021 at 12:55 AM), https://economictimes.indiatimes.com/tech/internet/india-has-second-highest-number-of-internet-users-after-china-report/articleshow/71311705.cms.

[6] Catherine Howell & Darell M. West, The internet as a Human right, Brookings (Nov. 07, 2016) (Date Accessed: Mar. 06, 2021 at 12:27 AM), https://www.brookings.edu/blog/techtank/2016/11/07/the-internet-as-a-human-right/.

[7] Vijaita Singh & Devesh K. Pandey, J&K loses its special status, divided into two UTs, The Hindu (Aug. 06, 2019, 10:51 AM) (Date Accessed: Mar. 06, 2021 at 12:30 AM), https://www.thehindu.com/news/national/jk-loses-its-special-status-divided-into-two-uts/article28827159.ece.

[8] Express Web Desk, Explained: What is Section 144 of CrPC?, The Indian Express (Aug. 05, 2019, 08:04 AM) (Date Accessed: Mar. 06, 2021 at 12:34 AM), https://indianexpress.com/article/explained/what-is-section-144-crpc-jammu-and-kashmir-5878543/.

[9] Niha Masih, Shams Irfan & Joanna Slater, India’s Internet shutdown in Kashmir is now the longest ever in a democracy, The Washington Post (Dec. 16, 2019, 12:30 PM) (Date Accessed: Mar. 06, 2021 at 12:38 AM), https://www.washingtonpost.com/world/asia_pacific/indias-internet-shutdown-in-kashmir-is-now-the-longest-ever-in-a-democracy/2019/12/15/bb0693ea-1dfc-11ea-977a-15a6710ed6da_story.html.

[10] WP (C) No.19716 OF 2019(L).

[11] WP (C) No. 1031   OF   2019.

[12] WP (C) No. 10817 OF 2020.

Editor: Ananya Shukla