Scatmag.com

February 2020

'NET FREEDOM - A FUNDAMENTAL RIGHT


In a major pronouncement, the Supreme Court has declared Internet access as a fundamental right. This imposes stringent limits to state power in cutting of internet access.

The apex court noted that freedom of speech & the right to carry on trade or business were Fundamental Rights defined by Article 19(1) of the Constitution & the internet was a crucial method by which these rights were exercised.

In the past, the Kerala High Court had also declared that access to the internet was necessary to exercise the right to education and the right to privacy.



FUNDAMENTAL RIGHTS

A government cannot deprive the citizens of Fundamental Rights except under certain conditions explicitly mentioned in the Constitution.

Fundamental Rights have been listed in Article 19 (1)(a) of the Constitution. The Supreme Court has on many occasions expanded the scope of the right to freedom of speech and expression. The latest expansion keeps pace with technology. Internet is the primary source of information to millions of Indian citizens. A non-citizen can avail the same benefits but cannot demand it as a fundamental right.

The Supreme Court ruling is also in sync with the United Nations recommendation that every country should make access to Internet a fundamental right.

In India, Kerala had become the first state in 2017 to declare access to Internet "a basic human right".

A state cannot technically declare a service, facility or protection as fundamental right as it requires interpretation of by High Courts or the Supreme Court, or through an amendment of the Constitution by Parliament.

Article 19 of the Constitution lists the following as fundamental rights:

  • Freedom of speech & expression;
  • To assemble peaceably & without arms;
  • To form associations or unions;
  • To move freely throughout the territory of India;
  • To reside & settle in any part of the territory of India; and
  • omitted (the right to property)
  • to practise any profession, or to carry on any occupation, trade or business

The only restrictions which may be imposed are:

  • Sovereignty & Integrity of India,
  • Security of the State,
  • Friendly relations with foreign States,
  • Public order, decency or morality
  • Contempt of court, defamation or incitement to an offence





'NET IN KASHMIR

The PIL was raised in the context of the monthslong shutdown of the internet in Kashmir, immediately after the revocation of Article 370 and the bifurcation of the state on 5 August 2019.

The apex court ordered that the competent authority under the 2017 IT Rules (Union home secretary) must restore internet connectivity within 24 hours.

The government restored mobile, 2G internet connectivity. This provides very slow speed internet to those in Kashmir.


LOCAL AUTHORITY SET ASIDE

The internet had been shut down, often by local authorities, claiming power under Section 144 of the Criminal Procedure Code, citing "national security" or "law and order". The court ruled that there was lack of transparency in those decisions, which is a violation of an Indians' fundamental rights.

"All orders suspending such services must be put in the public domain which can then be challenged in a court of law. Internet suspension without any particular duration and indefinitely is a violation of telecom rules," the SC bench observed.


LOOKING AHEAD

In 2019, India was rated as the country with the third highest internet disruptions, internationally. In future the government will have to very carefully consider cutting internet access. n