Internet: A fundamental right

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Internet is an endless network of people, information, and knowledge which rests solely on the architecture of a digital public space found in social and professional networking, rivalling the richness of any physical town square. The conflicts and fights in the world from over a year ago have become more edged, if not completely, towards the Internet. This exhibits in light of the fact that a large number of individuals ended up participating in them, which otherwise would never have occurred, as they managed without the capacity that the Internet offers to convey and compose all over the place, promptly. It has brought up issues about whether access to the Internet should be a human right or not, as the issue is seen as an intense one in nations whose administrations have clamped down on Internet access trying to subdue the nonconformists.

The question here is what does the right to internet access actually mean?

In the Right to Internet access or the freedom to connect, the view is that all people in order to exercise and enjoy their rights of freedom of expression and opinion, must be able to access the Internet. In context and regard to this right, the States have a responsibility and are obligated to ensure that on a broader scale the Internet access is available to its masses and the States may not have the power to unreasonably infringe this right. United Nations Human Rights Commission passed a non-binding resolution signed by 70 countries as co-sponsors and effectively making the right to Internet access a basic human right. Any country denying this right is directly violating the human rights of its citizens, but however, 17 countries strongly opposed the resolution, and among the 17 opposing countries was India also. These have primarily opposed the clause: “condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online.” in the resolution.

Indian Constitution through Article 19 (1)(a) has made the right to freedom of speech and expression a fundamental right available for all citizens. Time and again, the scope of this article has been expanded by various judgments of the Supreme Court. One such expansion was a synchronous step with changing the technological world in which the Internet was seen to be the primary source of information for the maximum population of India and declared “a basic human right.” Kerala in India became the first state in 2017 to declare the right to internet access a necessity and a basic human right. The verdict came on a petition filed by a Faheema Shirin, a third-semester B.A. English, Kozhikode College student.

The Supreme Court further strengthened this pronouncement by another judgment this year in Anuradha Bhasin v UoI [WP(C) 1031/2019] and Gulam Nabi Azad v UoI [WP(C) 1164/2019] on January 10. The Supreme Court in its judgment laid down laws on the issue of Internet shutdowns. However, the judgment seems to have been flexible enough to be not only contrasting but also reversed synonymously, just months later in a reply by the Supreme Court to a set of petitions which were filed against the restrictions and curbs imposed on the internet in the Union Territory of J&K. After a series of petitions premised on the restrictions hampering “Right to education and healthcare, and the Freedom of Speech and Expression” were filed urging the Supreme Court to remove the continuous restrictions on the high-speed internet after the revocation of Article 370 and Article 35-A, the Supreme Court on 11th of May rejected the pleas giving accrediting J&K Administrations “Internet is not a fundamental right” remark. The decision claiming back the previous verdict in Anuradha Bhasin’s case, came on series of petitions clubbed which were filed by Foundation for Media Professionals, by Private Schools Association, Jammu, and Kashmir and some other individuals.

Arguments of the petitioners:

The plea filed by Foundation for Media Professionals specifically challenged the Internet restricting order contending such limitations were in sync with abusing Articles 14, 19, 21, and 21A of the Constitution. Petitioners urged the Court that the administration is under a commitment to guarantee access to a digital framework during this health crisis as due to the limiting internet speed the doctors, patients, and the general public are unable to access the latest information, guidelines, advisories, daily updates, and restrictions on COVID-19. Further, the petitions affirmed that the 2G speed is leaving specialists without access to the innovation expected to battle COVID-19.

As per the petition filed by the Private Schools Association of Jammu, the data restrictions are infringing the right to education of the students in the Union Territory of J&K, guaranteed by the Constitution. The students in the lockdown are not able to go to school even after having missed an almost complete session in 2019 and now due to the health crisis. The students across J&K like the rest of India are relying upon virtual classes but by such an unreasonable restriction imposed by the Government they are lagging behind competitively.

Reasoning behind the decision:

The administration of Jammu and Kashmir, in an affidavit filed with the Supreme Court on 30th April, has maintained that the right to access the internet is not a fundamental right. The administration justified its actions by saying that the degree of access for exercising free speech and also in the matter of carrying on any trade or business can be curtailed under some reasonable circumstances. In its reply to the petitions seeking faster internet connectivity, the Jammu and Kashmir administration submitted before the Supreme Court that the internet as an enabler of rights and not a fundamental right in itself. It has also responded to the petition seeking restoration of high-speed internet for accessing information regarding Covid-19 by the health workers and the public in general, by saying that such apprehensions are misconceived as all necessary documents and advisories issued by the government are available on various websites and platforms and have already been accessed by over 100,000 professionals in various health facilities in J&K.

The administration submitted that rights under Article 19(1) (a) and (g) of the Constitution cannot be said to be curtailed by a reduction in the speed of the internet and that a very reasonable quantum of restrictions has been imposed by to protect the sovereignty, integrity and security of the country. The J&K administration further argued that faster internet speed would give the enemy information even about the “troop movements.” Administration has further said that the issue of internet speed restoration should be left to decide to those tasked with “protecting national security”.

The contentions advanced by the respondents swayed the court as the extensive treatise on proportionality in the judgment was not applied in the case, although the Court held that suspending internet services indefinitely is impermissible. Supreme Court took into acceptance the need for such imposition of restrictions looking at the issue of security the region of Jammu and Kashmir is facing. The Supreme Court held that the right to internet is not a fundamental right when it comes to certain situations and circumstances. The State does have the power to impose such restrictions which may be necessary to keep intact the sovereignty, integrity and the national security of the State.

The Supreme Court, after hearing both sides, on 11th May, 2020 has denied the passing of an order for the restoration of high-speed mobile internet and has ordered the central government to constitute a special committee of the Union home secretary, the Union communications secretary, and the chief secretary of Jammu and Kashmir, for probing affairs regarding high-speed internet in J&K. The Committee has been given the duty to immediately take steps and decide on whether the prevalent internet restrictions are necessary or not? The Supreme Court has given the directions to the committee to consider all the arguments of the petitioners’ side as well.

The court has recognized that the Union Territory has plunged into a crisis but simultaneously considers national security as of utmost importance. The high-speed internet will be resumed when the committee is satisfied that such can be done. It held that the petitioners’ submission would have held merit consideration, had they been filed under “normal circumstances”, but the present situation in Jammu and Kashmir is quite “compelling” and warrants consideration.

Conclusion and critical analysis:

As per a report by the United Nations, the unique rapporteur ventured to such an extreme as to announce that the Internet has become a key apparatus for understanding the scope of human rights. The contention, misses a bigger point: innovation is an empowering agent of rights, not a statement correct in itself. There is a high bar for something to be viewed as a human right. Approximately put, it must be among the things which are important and those that people need so as to live a decent sophisticated life. It is a misstep to put a specific innovation in this lifted up the classification, since after some time we will wind up esteeming some inappropriate things. The most ideal approach to describe human rights is to distinguish the results that we are attempting to guarantee. These incorporate basic opportunities like speaking freely and the opportunity of access to data, and those are not really bound to a specific innovation at a specific time. Without a doubt, even the United Nations report, which was generally hailed as pronouncing Internet access as a human right, has recognized that the Internet is significant as a necessary right but not as an end in itself.

The Jammu and Kashmir Government and administration have repeatedly assured support from the people of Jammu as well as Kashmir through its different reports and press briefings which may however not be completely the true side of it. Kashmir has always been an issue of security for India and the neighbouring countries have time and again given their contribution by adding fuel to the fire. Chances of the situation which are improving progressively in Kashmir might be disrupted are quite high. Internet can be used for inciting violence and may put at stake the question of the integrity of India.

Though the number of such youth or people might only range from 2-3% and but they may use the internet to spread provocative titbits and falsehoods against India and its treatment of the lawfulness circumstance in J&K. In view of such a situation the step is much needed and people from J&K should abide by these restrictions as they have been imposed only for their own good. The people are under a commitment to follow the laws, rules, and guidelines which are made for the improvement and larger interest of the country. However, along these lines, we also need to consider that these restrictions have remained imposed there for 9 long months and such and so cannot go on forever. The administration needs to come up with better tackling measures of the situation

Authors: Iffla Firdous from Department of Law, University of Kashmir, Hazratbal Srinagar.

Editor: Akshat Mehta from Institute of Law, Nirma University.

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