Privilege or burden? Internet under the purview of fundamental rights

There is no gainsaying that the use of Internet has transitioned from being merely a service to being one of the most quintessential engines of empowerment to the extent that we cannot fathom how our lives would be today had it not been for the Internet. Currently when the world has been living under lockdown due to the global Pandemic of Covid-19, the internet seems to be the only reason that has made it possible for the people to connect regardless of the physical barriers.

The Internet has become an inevitable part of our lives wherein the scope and usage of the internet services are ranging from ordering a pizza, maintaining social connections and interactions, entertainment, online shopping to work usage, learning, for educational purposes to even playing e-sports. Being a limitless space, it has broadened up the aspects of exploring and surfing the wide database which has become accessible through the Internet.

The Internet has revolutionalized the communications as it has become our most preferred medium to reach out to the larger chunks of the society having access to the internet, spreading agendas and information which one might not be aware of sitting at home.

With all of that being said, is the Internet a privilege or a burden?

STATISTICAL INSIGHTS ACROSS INDIA:

As per the data presented by Internet shutdown tracker, India has undergone a shutdown of 399 days starting from 2012 to 2020, when the number was as low as 3 days in the year 2012 to when the number reached 213 days

213 DAYS (4 Aug 2019 - 4 Mar 2020)
The restrictions began on 4th August 2019 and ended on 4th March 2020 when the state of Jammu & Kashmir was observing a preventive shutdown.

145 DAYS (4 Aug 2019 – 27 Dec 2019)
Kargil District of Ladakh faced a shutdown of 145 days which was imposed since 4th August 2019 suspending all landline, mobile and SMS services

133 DAYS (8th July 2016 - 19th Nov 2016)
Lockdown which was observed in 2016 due to the agitation caused by the killing of Burhan Wani on 8th July 2016

100 DAYS (18th Jun 2017 - 25th Sep 2017)
The state of Darjeeling, West Bengal observed the third-longest Internet services suspension following the order to suspend the Internet services promulgated on 18th June 2017 due to the ongoing agitation for a separate Gorkhaland.

RECKONING OF THE RIGHT TO INTERNET:

Constitutional Order 272 was issued by the President on 05 August 2020 making all the provisions under the Indian Constitution applicable to the territory of Jammu & Kashmir and modifying the application of Article 367. On the same day, through the order of the District Magistrates on the apprehension of breach of peace and tranquility, Section 144 CrPC was imposed to restrict public movements and gatherings.

Aggrieved by the order, Petitioners in the case of Anuradha Bhasin vs Union of India & Ors were journalists for The Kashmir Times Srinagar, who had approached the court seeking issuance of an appropriate writ under Article 32 for setting aside or quashing any and all orders that were issued by the defendants wherein any/all modes of communication including internet, mobile and fixed line telecommunication services had been shut down or suspended and were made inaccessible or unavailable in any locality.  

The contentions of the petitioner were drawn on the lines of isolation of the Fundamental Rights wherein it was said that the restrictions on the internet is a curtailment of the right to free speech and should be tested on the touchstone of  reasonableness and proportionality.

It was also contended that the procedures laid under Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017 were to be followed to restrict internet services on a temporary basis only

Emphasis was placed on “least restrictive measures” on internet restrictions with respect to social media/mass communication and the general internet as such restrictions not only impact the right to free speech of individuals but also impinges on their right to trade.

On the other hand, the learned counsel for Respondents took to discuss the terrorism in the state of Jammu & Kashmir where the state had been a victim of both physical and digital cross border terrorism.  Further, it was submitted that social media allowed people to exchange messages and communicate with a several people and could also be used as a means to incite violence at the same time

RATIONALE OF THE APEX COURT

The Supreme Court went onto observing the nature of the Fundamental Rights under part III of the constitution stating that “no person could be denied such right until the Constitution itself prescribes such limitations”

A distinction needs to be done between the internet serving as a tool and the freedom of expression through the internet.

In the context of globalization of the Indian economy and the rapid advancements in information and technology running parallel to each other which have made way for the transformation of the business ventures and global IT hub, the court went onto confine itself to declaring that the right to freedom of speech and expression under Article 19(1)(a), and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected.

In the context of Article 21, an invasion of privacy must be justified based on a law which stipulates a procedure which is fair, just and reasonable. The law must also be valid concerning the encroachment on life and personal liberty under Article 21. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law;

The court summarized the requirements of the doctrine of proportionality which must be observed by the authorities before passing any order which intends to restrict the fundamental rights of the individuals, an alternative mechanism in furtherance of the aforesaid goal should be assessed by the authority

THE RULING

The freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of the internet were declared to be constitutionally protected under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should align with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality

TO CONCLUDE

Law and technology seldom mix like oil and water. There is a perpetual criticism that the development of technology does not sufficiently meet with the equivalent movement in the law. The law should imbibe the technological development and accordingly mould its rules to cater to the needs of society

The courts in India have consistently interpreted Article 21 to be an array of broad rights, which comprise of numerous rights which have no explicit mention yet are located within the purview of Article 21 and can also be perceived to be an essential part of life. The revolution within the cyberspace has been phenomenal in the past decade which has lead to recognition of the right to internet access as a human right within the Indian constitutional system

In Faheema Shirin v. State of Kerala, the Kerela High Court recognized the right to internet access as a fundamental right which formed a part of the right to privacy as well as the right to education under Article 21 of the constitution.

The State needs to strike a balance and unify the platform where the safety of the people runs parallel to the lawful exercise of their fundamental rights.

To answer, Internet in the present scenario seems to be a restricted privilege for the people and at the same time, a burden that sits upon the state as a negative obligation under the Fundamental rights.