PublicationsRight to Internet Access and Fundamental Rights

Disclaimer: The submitted paper is original and has not been published or under consideration for publication elsewhere.

INTRODUCTION

Internet is an integral part of our lives. Even imagining a day without it seems like a horrific nightmare. During the lockdown, many of us experienced low internet bandwidth due to the increase in internet usage and also due to reasons such as online classes and work from home culture. Jammu and Kashmir, which was earlier a State of India became a union territory along with Ladakh on 5^th August 2019. This was followed by a complete lockdown in Jammu & Kashmir and a total communication blackout.  This was a result of abrogation of Article 370 and Article 35A of the Constitution of India. The government of India citing security reasons blocked all communications to and fro the valley. This blanket ban in Jammu and Kashmir and other such bans in Assam, Delhi and UP during CAA protests on right to the internet is also against the principles in Directive Principles of State Policy which provides that it is the duty of the State to provide healthy and free-living conditions to all its citizens.

This article analyses whether such blanket bans are justified and whether fundamental right of freedom and expression under Article 19 and right to life and personal liberty under Article 21 extends to the right to internet access. If yes, then whether the right to internet access can be enforced through Article 32 i.e. Right to Constitutional Remedies.

ABROGATION OF ARTICLE 370 AND THE INTERNET SHUTDOWN IN J&K

Article 370 was abrogated from the Constitution of India on August 05, 2019, and left the State of Jammu & Kashmir stripped of the nominal autonomy it possessed. The State which was now converted into two union territories saw a communication blackout as all mobile, telephone and internet services were shut down by the Government of India.

The freedom of speech and expression through the internet is an integral part of Article 19(1)(a) under the Constitution of India. Though freedom of speech and expression in itself is not an absolute right it can only be taken away in specific circumstances. It can only be restricted by reasonable restrictions,^[1] in the interest of sovereignty and integrity of India^[2] and in the interest of the general public.^[3]

It is, however, to be noted that citing vague reasons such as national security and general interests of the public the State cannot make the residents of one State suffer.  On August 4, 2020, all the mobile phones, landline connectivity, internet services were completely suspended in Jammu and Kashmir under Section 5 of Indian Telegraph Act, 1885 and Rule 2 of Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rule 2017 along with the imposition of an unannounced curfew citing law and order situation.

Due to this, Kashmir Times Newspaper was not able to be distributed on August 05, 2020, and there was no publication of newspapers since August 06, 2020, due to various restrictions including restrictions imposed on the press. The freedom of press comes under the fundamental right of freedom of speech and expression and a free press is the fourth pillar of democracy and any unjustified attack on it is equivalent to an attack on democracy itself. Also, print media came to a complete halt due to non-availability of internet services which is absolutely essential for the modern press.

Apart from this, common people of Jammu & Kashmir faced a lot of problems due to internet shutdown and the curfew. The schools were shut down due to the curfew and due to restrictions on the internet, it was impossible for the students to study using online mediums. The right to education is a fundamental right under Article 21A of the Constitution. Also, the businesspersons suffered very huge losses. The business and trade went through the most challenging times.

An argument can be presented that national security is above everything, but the restrictions imposed for ‘national security’ should have reasons to support it and should be proportionate. Also, the Supreme Court observed in the Anuradha Bhasin Judgement that the government did not present the orders before the Court through which these restrictions were imposed.^[4] If the orders are not even made available to the public who are being affected by the orders then how can the reasonableness of such orders be established?  All the businesses in the valley were severely hit which also affected the mental state of the people. The internet ban in Jammu & Kashmir was an ordeal on the people which left deep scars on their minds and daily lives.

The internet ban in Jammu & Kashmir which lasted for 213 days was the longest the country has ever seen. The communication blockade began from restricting landline as well as mobile services. Eventually, the landline restrictions were lifted but the suspension on mobile internet continued. On January 25, 2020, the administration restored 2G mobile services for verified users in Jammu & Kashmir.

However, the users were only allowed to access whitelisted websites and access to social media was prohibited. The rights and influence of telecom regulatory authorities and service providers in such situations is very limited. They have to follow the government orders as and when they come. However, these authorities along with the government should harmonize the interest of consumers with that of national interest. The services were again shut down in light of Republic Day celebrations citing security concerns which was then resumed the next day at 4:00 PM.

These restrictions cannot be said to be reasonable when they are time and again imposed without considering the sufferings of the citizens. It was a discriminatory and blanket ban on the whole union territory under the garb of national security. On March 04, 2020, the administration passed a new order which removed the restriction of whitelist websites; however, the internet could still be accessed only at 2G speed on verified SIM cards.

Lord Atkin rightly said, and I quote that it is through dissent that the fundamental rights of the citizens of the United Kingdom can be upheld and Right to Dissent is a fundamental right of citizens.^[5] Thus, crushing dissent by blocking access to the internet is detrimental to the rights of people and their fundamental rights.

The Government of India attempted to justify the restrictions due to Jammu & Kashmir being a conflict zone and other such circumstances prevailing there. The government said that the background of terrorism in Jammu and Kashmir needs to be taken into account. The government further stated that considering the cross border terrorism and internal militancy, it would have been improper to have not taken any preventive measures in the circumstances and there could have been huge violence if no preventive measure had been taken.

Such a justification is pointless and should be rejected as accepting it would amount to granting too much power to the State to impose broad restrictions on fundamental rights in varied situations. It would also amount to individual liberty being subsumed by social control.^[6]  Such restrictions and attacks on the fundamental rights are the reason that Article 32 was placed in the Constitution in Part III, as a fundamental right which allows for the enforcement of the other fundamental rights. And it is the duty of the Supreme Court of India as the custodian of the Constitution as well as rights enshrined under it, to protect these rights when citizens are deprived of their rights and liberties in an excess of State power.

The Supreme Court held the same recently while granting bail to Arnab Goswami and upholding his right to personal liberty. Even during the lockdown, the Supreme Court took suo motu cognizance of migrants walking home as it was a grave violation of their human right. This shows that the Supreme Court is the protector of human rights and it should take suo motu action when State action is excessive in nature.

On the question of restriction of the content of information circulated or the right to circulate it, the Supreme Court of India held that:

“We need to distinguish between the internet as a tool and the freedom of expression through
the internet. There is no dispute that freedom of speech and expression includes the right to
disseminate information to as wide a section of the population as is possible. The wider range of
circulation of information or its greater impact cannot restrict the content of the right nor can it
justify its denial.”^[7]

Even in the case of Faheema Shirin v. State of Kerala^[8] the right to internet access was recognized as a fundamental right that forms a part of the Right to Privacy and the Right to Education under Article 21 of the Constitution. It is submitted that the impugned restrictions have affected the freedom of movement, freedom of speech and expression and right to free trade and avocation. The right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under Article 19(1)(g), using the internet as a medium is constitutionally protected.

JAMMU & KASHMIR: THE TALE OF COVID19 AND 2G INTERNET

As mentioned above, in January 2020, by order of the Supreme Court declaring the internet shutdown as unlawful and unconstitutional. The Court further said that the freedom of speech & expression and freedom to carry out any trade or practice any profession through the medium of internet is a fundamental right and any restrictions upon it should be reasonable as per Article 19(2) to 19(6) of the Constitution. After the order of the Court, telecom and internet services were restored partially, residents could now access the internet but only at a low, 2G speed. When the State (now union territory) was slowly coming out of the curfew-like situation, a positive case of COVID-19 was discovered, and a strict lockdown was imposed once again. It should be noted that imposing a lockdown for public safety is justified but the restrictions on the internet speed even during the lockdown was a source of many problems.

The doctors in J&K have been complaining of how slow internet services pose a challenge in their duties and how even simple tasks like downloading WHO guidelines take a few hours at least. The schools and colleges are unable to conduct online classes and the students have already suffered a lot because of the previous lockdown of August 2019.

Petitions were filed in the Apex Court for the restoration of 4G services by Foundation for Media Professionals and Private Schools Association, Jammu and Kashmir. They cited the issues people were experiencing in availing health services and also the difficulty of conducting online classes in absence of high-speed internet. It was submitted in Court that almost 27 lakh students of Jammu and Kashmir did not have access to education at present unlike the rest of the country.

All over the country work from home and online classes have become a norm due to the present covid situation. However, none of this was able to be followed properly in Jammu & Kashmir due to non-availability of high-speed internet. This was discriminatory to the residents of Jammu and Kashmir and one can even say that this was against Article 14 of the Constitution which talks about Right to Equality.

The Home Department of J&K by an order on April 15, 2020, extended the restrictions placed on the speed of internet and Stated there has been no difficulty in availing health services and such restrictions have helped in curbing social media misuse. This is a violation of basic human rights along with a violation of Article 14, 19, 21 and 21A of the Constitution.

INTERNET SHUTDOWNS: A NEW WAY OF CRUSHING DISSENT

On December 12, 2019, the Citizenship Amendment Bill received assent from the President and became the Citizenship Amendment Act. This was followed by nationwide protests in various parts of the country. Many protests were held in Assam and Meghalaya as the new Act was a concern for the local population that it would lead to immigration in large numbers to these States from Pakistan, Bangladesh and Afghanistan. The Citizenship (Amendment) Act or CAA was enacted to grant citizenship to religious minorities of Afghanistan, Pakistan and Bangladesh, who had to flee their countries facing persecution. This was a great concern for local residents of Assam and Meghalaya as they feared it would lead to a huge influx of Hindu population from Bangladesh and it would affect their resources, their lands, job opportunities and culture. This was the main reason for protests in North-East India.

The government, in order to crush the dissent and control the protests, imposed an internet shutdown in the States of Assam and Meghalaya. Officials in the State of Assam said, “Social media platforms like Facebook, WhatsApp, Twitter, and YouTube are likely to be used for spreading of rumours and also for transmission of information like pictures, videos and text that have the potential to inflame passions and thus exacerbate the law and order situation.” In addition to this texting services were also shut down in Meghalaya. However, the Gauhati High Court in its order dated 19.12.2019 after a weeklong internet shutdown directed the government to lift the bans and resume internet and other services with immediate effect.

The court in Shreya Singhal judgment^[9] while repealing Section 66-A of the IT Act held that the meaning of every expression used is nebulous and something which might be offensive to one might not be offensive to another. The court held the interpretation to be subjective in nature.  The court declared that Section 66-A is in violation of the right to freedom of speech and expression and not a reasonable restriction as per Article 19(2). The Court’s approach was to protect the fundamental right of freedom of speech and expression and that the State cannot take away these rights by claiming the shield of Article 19(2). The reasoning given by government officials from Assam was opposite to this and the restrictions were discriminatory and unjustified and were not at all reasonable.

During the CAA protests, internet shutdown was also imposed in the State of Uttar Pradesh and also in the capital of the country i.e. Delhi. The administration of both these places gave almost the same reasons that the protests were turning violent and in order to stop misinformation and stoking of such violence, such measures are necessary. The question here is that instead of talking to the protestors and trying to address their problems why did the government choose to shut their voices? If the Act did not have any problems the government could easily answer all the questions the dissenters had. But instead, the government chose to crush the dissent instead of handling the situation peacefully.

CONCLUSION

India is the largest democracy in the world yet being the largest doesn’t expressly mean the best. “We proclaim ourselves as indeed we are, the defenders of freedom wherever it continues to exist in the world, but we cannot defend freedom abroad by deserting it at home.”^[10]

What happened in Kashmir, Assam, Meghalaya, Uttar Pradesh and Delhi was something that is not healthy for a democracy. The Supreme Court declared that the right to access the internet is a fundamental right^[11] and to violate a fundamental right with such impunity while giving frivolous reasons not backed by any proof is dangerous to the spirit of fundamental rights as well as the Constitution.  Thus, we have to keep holding on to our rights and demand them from the government until we get them.

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