Article 21 and The Right to Internet – by Rishika Kaushik

By | April 13, 2018
Right to Internet concentrate

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InternetThe right to Internet access, also known as the right to broadband, is the view that all people must be able to access the Internet in order to exercise and enjoy their rights to know and the freedom of expression and opinion and other fundamental human rights.


“No person shall be deprived of life and personal liberty except according to procedure established by law”.

– Article 21, The Constitution of India


In a broader horizon of ‘Right to Life’ under Art. 21, in this age, ‘Right to Know’ has been held to be a facet. The Supreme Court in R. P. Ltd. v. Proprietors Indian Express Newspapers, Bombay Pvt. Ltd.[1], observed that if the democracy had to function effectively, people must have the right to know and right to obtain information about the conduct of state of affairs of the State.

In this increasingly digital age, where the government is on a mission to move towards a cashless economy and promote e-governance and digitization, one of the most sought and used modes of communication is the internet. A decade ago Internet connectivity may have been considered a luxury, but today it has become a necessity. Information and communication technologies have spread across India over the last decade, with 965.52 million phone users and 164.81 million internet users which is the third-largest absolute number of users worldwide[2]. Internet thereby counts as a medium to access information and enables the exercise of the right to know.

The Hon’ble Supreme Court, in Maneka Gandhi v. Union of India[3], held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thoughts with others not only in India but abroad as well. This was at the time when no one had ever thought the internet will become a borderless phenomenon.

Similarly in Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal[4] it was held that every citizen has a fundamental right to impart as well as receive information through the electronic media. A broader interpretation of “electronic media” can definitely mean Internet as well.

Therefore, Right to the Internet is a facet of ‘Right to know’ and Right to life’ under Article 21 of the Indian Constitution. The state has a responsibility to ensure that Internet access is broadly available and that states may not unreasonably restrict an individual’s access to the Internet.

The United Nations has officially declared internet access as a right which has been affirmed by 47 nations across the world. In 2015, UN had declared Internet Access as a human right. United Nations also recommends that every country should make access to the internet a Fundamental human right as well.  In India, Kerala became the first Indian state to declare the Internet as a basic right for every citizen, in its declaration in March 2017.

For the first time ever, Supreme Court of India on 13th April 2017 in Sabu Mathew George v. Union of India has declared that Internet access is a basic fundamental right for all Indians; this right cannot be curtailed and blocked at any cost.

The bench led by Justice Dipak Misra said that Right to Internet Access is a part of Fundamental Right of Expression. The bench said that every Indian citizen has “the right to be informed and the right to know and the feeling of protection of expansive connectivity”. Not only that, the Bench also described the Internet as a “virtual world” and a “world which is invisible in a way”. As per the bench, if any entity tries to curtail this right, then it will be illegal.

This verdict and announcement by Supreme Court can be used in those cases, wherein this right to access the internet was curtailed, using legal loopholes. Thus, Right to the Internet is increasingly becoming recognized and subsequent judgments following this precedent shall pave way for further development of Right to the Internet.

ARTICLE 19 & RIGHT TO INTERNET

Along with Article 21 Right to the Internet also seeks relevance in Article 19. Article 19(a) states that citizens have right to freedom of speech and expression. We as an essential foundation of Article 19 is that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Communication is a fundamental social process, a basic human need and the foundation of all social organization. Since the internet is a major framework of expression in this era of digitalization, therefore Right to Internet also has relevance in Article 19 (1) (a) as it is one of the major portals for expression and speech.

In July and August 2012 the Internet Society conducted online interviews of more than 10,000 Internet users in 20 countries. In response to the statement “Access to the Internet should be considered a basic human right”. The WSIS Declaration of Principles makes specific reference to the importance of the right to freedom of expression in the “Information Society”.

The recommendations of the United Nations 2003 World Summit on the Information Society reflect the need for internet as a medium for enforcement of the fundamental right of expression. The principles adopted at the summit emphasize on ‘Full inclusion’ that would extend beyond mere access rights and would include initiatives to build confidence and security in the use of the Internet. In practice, this could include Governments establishing ‘sustainable multi-purpose community public access points’ and providing affordable or free Internet access to their citizens.

These recommendations highlight various expansions of Right to the Internet which not only includes access but also security in the use, the safety of data, confidence in the network and internet service providers be it government or private companies.


– Rishika Kaushik

Editor at Legal Bites


References:

[1] AIR 1989 SC 190.

[2] TRAI figures as of March 31, 2013.

[3] AIR 1978 SC 597.

[4] 1995 AIR 1236

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