About the Author: The author is a 2021 graduate of National Law University, Delhi. She is currently working as a lawyer in Kathmandu, Nepal. Her interests lie in the area of digital rights, freedom of speech and expression and constitutional law.
Editor’s Note: This post is part of the Reflection Series showcasing exceptional student essays from CCG-NLUD’s Seminar Course on Technology & National Security Law. Along with a companion piece by Shreyasi Tripathi, the two essays bring to a life a fascinating debate by offering competing responses to the following question:
Do you agree with the Supreme Court’s pronouncement in Anuradha Bhasin that access to the internet is an enabler of other rights, but not a fundamental right in and of itself? Why/why not? Assuming for the sake of argument, that access to the internet is a fundamental right (as held by the Kerala High Court in Faheema Shirin), would the test of reasonableness of restrictions be applied differently, i.e. would this reasoning lead to a different outcome on the constitutionality (or legality) of internet shutdowns?
Both pieces were developed in the spring semester, 2020 and do not reflect an updated knowledge of subsequent factual developments vis-a-vis COVID-19 or the ensuing pandemic.
The term ‘internet shutdown’ can be defined as an “intentional disruption of internet or electronic communications, rendering them inaccessible or effectively unusable, for a specific population or within a location, often to exert control over the flow of information”.1 It has become a tool used by States against residents of the country in question when they are faced with some imminent threat to law and order or a certain breakdown of law and order. It is used with the belief that a blanket shutdown of the Internet helps restrict misinformation, spreading of fake news, incitement of violence, etc. that could take place.
- ANURADHA BHASIN JUDGEMENT: INTERNET AS ENABLER OF FUNDAMENTAL RIGHTS ENSHRINED UNDER THE CONSTITUTION OF INDIA
Due to the suspension of mobile and broadband internet services in Jammu and Kashmir on August 4, 2019 before the repeal of Article 370 of the Constitution of India, a petition was filed at the Supreme Court by Anuradha Bhasin (a journalist at Kashmir Times). The petition challenged the Government’s curb of media freedom in Jammu and Kashmir as a result of the blanket internet and communications shutdown. On 10th January 2020, the Supreme Court’s judgement in Anuradha Bhasin v. Union of India, held that the internet has been deemed as a means to realise fundamental rights under Article 19 of the Constitution. The Court’s decision specifically applied to the right to freedom of speech and expression and the right to carry on trade or businesses.
The Court did not explore or answer the question of whether access to the internet by itself is a fundamental right since it was not a contention by the counsels. However, the Court did state that since fundamental rights could be affected by the measures applied by authorities (which in this case was an internet shutdown), a lawful measure which could restrict these fundamental rights must be proportionate to the goal.
One reading of the Supreme Court’s decision in Anuradha Bhasin is that the case could act as an enabler which legitimises government-mandated internet shutdowns. Nevertheless, the Court does explicitly hold that the curtailment of fundamental rights affected by internet access restrictions must be proportionate. In pursuance of this restrictive measures need to be the least restrictive in nature. However, determining what constitutes the least restrictive measure is a subjective question and would vary on a case by case basis. There is no guarantee that internet shutdowns would not be the opted measure. .
- Critiquing the Rationale of the Anuradha Bhasin Judgement
It is important to investigate why the Court was hesitant to not deem internet access as a fundamental right. One major reason could be due to the fact that access to the internet is not possible for all the citizens of India in the current situation in any case. At the time of writing this paper, approximately half of India’s population has access to and uses the internet. Where such a visible ‘Digital Divide’ exists, i.e. when half of the Indian population cannot access the Internet and the government has not yet been able to provide such universal access to the internet, it would not be feasible for the Court to hold that the access to internet is in fact a fundamental right.
If the Court were to hold that access to the internet is a fundamental right in the current situation, there would be a question of what internet access means ? Is access to the internet simply access to an internet connection? Or does it also include the means required in order to access the internet in the first place?
If it is just the first, then deeming access to the internet as a fundamental right would be futile since in order to access an internet connection, electronic devices (e.g. laptops, smartphones, etc.) are required. At a purely fiscal level, it would be improbable for the State to fulfil such a Constitutional mandate. Moreover, access to the internet would be a fundamental right only to those who have the privilege of obtaining the means to access the internet. The burden on the State would be too high since the State would be expected to not just provide internet connection but also the electronics which would be required in order to access the same. In either case, it does not seem feasible for access to the internet to be deemed as a fundamental right due to the practical constraint of India’s immense digital divide.
- RIGHT TO INTERNET FOR CURRENT AND FUTURE CHALLENGES
At a future point where it is feasible for more people to access the internet in India (especially in rural/remote areas), it may be appropriate to deem access to the internet as a fundamental right. However, at this juncture to argue that the access to internet is a fundamental right (knowing that it is primarily accessible to more privileged segments) would be an assertion anchored on privilege. Therefore, as important as the internet is for speech and expression, education, technology, etc. the fact that it is not accessible to a lot of people is something for policymakers and wider stakeholders to consider.
This is especially important to look at in the context of COVID-19. Lockdowns and movement restrictions have increased remote work and accelerated online education. In order to work or study online, people must have access to both devices and the internet.
In this context a UNICEF Report (August 2020)observed that only 24% of Indian households had internet connection to access education and in November 2020 an undergraduate student died as a result of suicide since she was unable to afford a laptop. This provides macro and micro evidence of the blatant digital divide in India. Hence, it is not feasible to deem the right to access the internet as a fundamental right.
In any case, if we were to assume that the right to access the internet was a fundamental right as what was held on 19 September 2019 by the Kerala High Court in Faheema Shirin R.K v. State of Kerala, the issue of whether internet shutdowns are legal or not would still be contended. Article 19(2) provides certain conditions under which the right to freedom of speech and expression under Article 19(1)(a) can be reasonably restricted. Similarly, Article 19(6) of the Constitution provides that the right to carry on trade and business can be reasonably restricted in the interest of the general public. If access to the internet would be deemed as a fundamental right, it would be necessary to look at the scope of Articles 19(2) and 19(6) through a different lens. Nevertheless, such alteration would not yield a different application of the law. In essence, the Government’s restrictions on internet access would operate in the same way.
It is highly likely that Internet shutdowns would still be constitutional. However, there could be a change in the current stance to the legality of internet shutdowns. Situations wherein internet shutdowns would be legal may become narrower. There may even be a need for specific legislation for clarity and for compliance with the constitutional obligations.
Due to COVID-19, many people are unable to access education or work in the same way that was done before. Even courts are functioning online and with that the necessity to access the internet has never been stronger. The court in Anuradha Bhasin held that the internet was an enabler to rights under Articles 19(1)(a) and 19(1)(g). However, now with the added scope for the necessity to be able to use the internet as a medium of accessing education and as a medium to access justice (which has been recognised as a fundamental right under Article 21 and 14), lawmakers and Courts must evaluate whether the rising dependency on the access internet would in itself be a reason for internet access becomes crystallised as a fundamental right.
*Views expressed in the blog are personal and should not be attributed to the institution.
- Access Now, in consultation with stakeholders from around the world, launched its #KeepItOn campaign against internet shutdowns and developed the first international consensus on the definition of an internet shutdown in RightsCon 2016, available at https://www.rightscon.org/cms/assets/uploads/2016/07/RC16OutcomesReport.pdf.