Right to Internet Access Under the Constitution of India

The internet usage in India has dramatically risen in the past 5 years. From 300 million users in 2015, the number of active internet users has risen to 700 million in 2020.[1]With the rising usage, there is a need to ensure that there is a free and fair access to the Internet as its importance is rising all over the world.

With this in mind, the courts of the country have stressed the importance of access to the Internet. Faheema Shirin R.K vs State of Kerala[2] was a landmark judgement in which the Kerala High Court stated that the right to the internet is a fundamental right under Article 21 of the Indian Constitution. The court held a restriction on the usage of mobile phones from 6:00 pm to 10:00 pm as infringing upon fundamental privacy and would adversely affect the students who rely on the internet to gain knowledge. The court also stated resolution 23/2 of the Human Rights Council in 2013 [3]. The resolution affirms the critical role that freedom of expression plays in ensuring increased economic and political participation of women. This resolution also urges the member states of the Human Rights Council to promote and respect women’s exercise of freedom of opinion and expression on the Internet.

Protecting freedom of expression is extremely essential in a democracy like India. In S. Rengarajan and Ors. v. P Jagjivan Ram[4], the court stated that censors have to take into consideration the conditions prevalent in the country and freedom of expression which is legitimate and is according to the norms of the constitution, cannot be held at ransom by people who disagree with certain opinions. The internet is a tool that enables everyone to share their opinions on any subject and the government must protect the rights of all individuals.

Anuradha Bhasin vs Union of India[5] was a judgement of the Supreme court that examined the constitutionality of prohibiting Internet access in the state of Jammu and Kashmir. It held that the central government could not block complete access to the internet using section 69A of the Information Technology Act. The court, in this case, discussed section 7 of the Telegraph Act which enlists the Suspension Rules which enable states to restrict access to telecom services including the Internet. The court also enumerated the history of the Freedom of Expression in the USA. Even in the USA, which is regarded as one of the most liberal countries about the freedom of speech, there have been various cases like Dennis v. United States [6] in which the US Supreme court upheld the validity of Section 2(a)(1), Section 2(a)(3) and 3 of the Alien Registration Act which made it unlawful for any person to deliberately advocate the intent of overthrowing the dispensation of the United States. While the above-mentioned judgement was overruled in Brandenburg v. Ohio[7], the events of 9/11 led to a rethink about the powers of the First Amendment. The court also discussed that what constitutes a public emergency as the Suspension Rules in the Telegraph Act state that telecom services can be disrupted when there is a public emergency. The decisions taken to suspend telecom services like the internet must be taken while keeping basic measures of proportionality in mind. A definition of proportionality was given by the SC in CPIO v. Subhash Chandra Aggarwal[8]. The court stated that a right must not be restricted to a greater extent than is necessary. The court, while holding the internet shutdown valid, urged the government to allow access to essential government websites and urged the government to restore the internet as soon as the situation eased. The arbitrary use of Section 144 of the CrPC was also criticized in the judgment.

Another historic judgement of the Supreme court concerning the right to privacy and which touched upon the need for internet privacy was KS Puttaswamy v. Union of India[9]. The court, in an extremely comprehensive judgment, touched upon various elements of privacy and declared that internet hacking of personal data by the State was an encroachment of privacy. The court also detailed the rise in usage of the internet and how we use the internet for various purposes from communicating with others to using e-commerce websites for shopping. Thus, it becomes the responsibility of the state to protect individuals from threats to their privacy.

In conclusion, the right to internet access is a connotation of the wider term of “personal liberty” used in Article 21. All individuals have the right to access the internet and no individual can be denied this right except according to the provisions of law. With the recent changes to WhatsApp’s privacy policy and the opposition it faced, the attention towards user privacy has increased substantially. However, there remain challenges. Phishing scams are commonplace nowadays and by clicking on a seemingly harmless link, people are robbed of huge sums of money. But society is showing more and more awareness towards such concerns and the right to access to safe internet is becoming far easier than it was in the past.