SHOULD ACCESS TO INTERNET BE A CONSTITUTIONALLY PROTECTED RIGHT OR A FUNDAMENTAL RIGHT?
Author: Roopal Sunil Dhoot, II year of B.A.,LL.B. from ILS Law College, Pune
The article focuses on the Role of the internet in fulfilling various fundamental rights and how the right to access the internet has affected the life of the people in Jammu and Kashmir and the judgement given by the Honorable Supreme court in September 2019.
It is almost impossible to imagine a world without the internet. Internet connects people, lives, stories, and businesses. We all are aware of the roles the internet plays in our daily life and how convenient it has made our day-to-day functioning. The Internet has indeed become as essential as air and water. But what if someone tries to take this away from you, what protection do you have? From the virtue of importance that the internet plays in one's life, it is obvious that some protection needs to be granted to safeguard the interest of an individual, however, the question that arises is regarding what kind of right should access to the internet be placed under; constitutional right or a fundamental right? For this, it is necessary to understand certain terms as followed.
Constitutional rights are expressly stipulated and written in a national constitution which is the supreme law of the land. Any other law in contradiction to it is considered unlawful. It defines what rights the citizens have. The government can suspend this right under certain circumstances. During the period of a "state of exception," the government may legitimately curb individual constitutional rights. Unlike fundamental rights, constitutional rights are not basic rights and do not apply to everyone. For eg, the right to vote is available to a category of people. On the other hand, Fundamental rights are the basic human rights of all the citizens and are recognized by the Supreme Court as requiring a high degree of protection from government encroachment. All fundamental rights are granted to all people in every civilized society. Denying fundamental rights is inherently improper since fundamental rights are those rights whose protection is essential for society. The Fundamental rights are defined in part III of the Constitution and are ensured to everyone (at the time specific to citizens), irrespective of race, religion, gender, creed, caste, or birth-place. The major difference between fundamental and constitutional rights is that in case of violation of fundamental rights you can directly approach the Supreme Court by filing the writ under Article 32 of the Constitution. The right to approach the Supreme Court for violation of Fundamental right is a fundamental right in itself. This right to directly move to the Supreme Court for violation of your right is not available for constitutional rights.
Access to the internet should be made a Fundamental Right as it is an instrument in fulfilling other Fundamental Rights: Those rights can be identified as:
RIGHT TO EDUCATION
The right to education is a basic Fundamental Right under Article 21(a) of the Constitution of India. The Internet is growing day by day and covering all the fields related to knowledge. The Internet is truly emerging as a powerful medium for obtaining information on a variety of subjects published online. It is used by research scholars to support different types of web-based sources and services. To learn the latest news all around the world. E-learning has become an increasingly popular learning approach in universities due to the rapid growth of web-based technologies. 3Learning without the internet will restrict the Right to Education and hence it should be made a fundamental right.
RIGHT TO WORK
Article 19(1)(g) of the Constitution provides the Right to practise any profession, carry on a business, trade, or commerce. Internet use has revolutionized the working style at the workplace. Globalization has made the whole world a single market so with the help of the internet we can communicate anywhere and anytime. If the use of the internet is restricted, it is bound to affect the freedom of trade and business to a considerable extent. Thus, the importance of the internet cannot be underestimated, as from morning until night we are encapsulated within cyberspace and most of our basic activities are enabled by the use of the internet.
RIGHT TO EXPRESSION
Article 19(1)(a) is the Freedom of Speech and expression and no one can contradict the fact that social media is becoming very popular day by day because it provides people with a platform to express their thoughts, views on any opinion. Social media and online platforms give people outlets for their ideas and create opportunities for collaboration, interaction, and feedback from their peers. People can express themselves through music, photography, drawings by using technological advancement in all these fields. Technology is also making it possible for people with mental and physical disabilities to interact with the environment in ways that hadn't previously been possible.
RIGHT TO RELIGION
Article 25 to 28 provides for the Right to freedom of religion. Religion is represented on the internet in many ways. Some sites attempt to cover all religions, traditions, and faith such as pathos, belief net, etc. Others aim to provide religious experience facilitating prayers, meditation, or virtual pilgrimages. People also leverage search engines to investigate aspects of religion. Some religious websites are translated into several languages. Nowadays many new religious movements have websites. Various religious movements have used the internet extensively and this has been studied by academics, in the field of sociology of religion. The Internet has smoothened the way for enforcing this right.
RIGHT TO INFORMATION
The internet has millions of smaller domestic, academic, business, and government networks, which together carry many different kinds of information. The Internet has become the cheapest and most reliable source of getting information regarding any subject with just one click.
It is not possible to fulfil all these fundamental rights without proper access to internet services. On 5 August 2019, Indian authorities were keeping the people of Kashmir in a digital blackout, restricting internet access. 2It's the longest-running internet shutdown of 205 days and counting. It means there was no email, no weather information, no maps, no Whatsapp, no landline phones- absolutely nothing. Irfan Mehraj, a researcher at Jammu Kashmir coalition of civil society said that this internet shutdown was nothing but a human right violation". Students were unable to give the exams, the doctors were unable to do their job, businessmen begging the police officer to restore access. In a region torn by violence indirectly platforms like WhatsApp, Twitter, Facebook become the social life of the people. That's what was taken away from them when they blocked internet access. The officers were unable to track the anti-nationalist. This shows the importance of the internet not only to the students, doctors, teachers, businessmen but also to the government to form their tasks more efficiently.
In another case, Faheema Shirin, a student and a hostel resident in Kozhikode, Kerala, was against the rule in their hostel for banning the use of mobile phones from 6 PM to 10 PM which restricted them from accessing the internet. The notice was brought in the court for the violation of Articles 14, 19[a] and 21 which provide rights to equality, information, and personal liberty. Justice P.V Asha said, " the enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge". Court further said that apart from the facilities to read e-books, e-news, etc one can undergo online courses also sitting at home or hostel. Rules and regulations should be reform to cope up with the advancement of technology. The court ruled in favour of the student and thus upheld the right to use the internet as a fundamental right.
The Internet has become an integral part of our lives. From our work life to our household chores we are dependent on the internet. Other fundamental rights cannot be fulfilled if there is no access to the internet. The condition faced by the people of Jammu Kashmir brought the attention of the government on how the life of people revolved around the internet and the internet shutdown in Jammu & Kashmir worsened the life of people and increased the riots. As mentioned before, constitutional rights can be suspended by the government at the time of "state of exception" so if the right to access the internet becomes the constitutional right it can even be suspended by the government. So the Fundamental Right to religion, education, information, expression, and work violated in Jammu & Kashmir due to the absence of the right to access the internet. If at that time the right to access the internet would be our fundamental right all the other rights won't be violated in J&K because fundamental rights are given to the people irrespective of their race, religion, gender, creed, and birthplace. And if our fundamental right is violated it is even a fundamental right to directly move to the supreme court.
In September 2019, in the case of ANURADHA BHASIN V. UNION OF INDIA AND ORS. & GHULAM NABI AZAD V. UNION OF INDIAN AND ANR. the Supreme court of India has declared access to the internet a fundamental right. 1The ruling is in sync with the United Nations recommendations that every country should make access to the internet a fundamental right. The three-judge bench conferred that the right to access the internet is protected under Article 19 of the constitution.4This judgment was given in response to a plea against the suspension of internet services in Jammu & Kashmir since august. The bench affirmed that the right to freedom of speech and expression as guaranteed to all citizens covers the right to go online. A government cannot deprive the citizens of fundamental rights except under certain conditions explicitly mentioned in the constitution.
Be that as it may, it appears that today's life is unimaginable without the internet, and apprehensions of its misuse by anti-social elements cannot be ruled out completely. All said and done, the Supreme Court is the true guardian of the fundamental rights of citizens and through this judgment, the highest court has held that in this day and age, the internet is as essential as air and water.