The Right to the Internet by Somesh Vaidya @LexCliq

As network outages grew more frequent across the world, India gained notoriety as the world’s internet shutdown capital. This was a violation of Article 19 of the Universal Declaration of Human Rights (UDHR), which states that “everyone has the right to freedom of opinion and expression; this right includes the freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of borders.” After the controversial repeal of Article 370, Kashmir is still struggling to emerge from the Stone Age, with no full Internet connectivity. However, recent statements by the Indian court acknowledging the critical role of the Internet have become a beacon of hope for advocates of human rights and constitutional liberties.

Once such a decision has been made by the Supreme Court in the case of Anuradha Bhasin and Anr. v. Union of India. The petitioners, in this case, had approached the Hon’ble Court under its writ jurisdiction, requesting that it set aside or quash orders, notifications, directions, and circulars that had terminated mobile phone networks, internet services, and landline connectivity, as well as imposed movement restrictions in the valley.

This article aims not only to analyse the Court’s remarks on the right to use the Internet in the aforementioned case but also to set out an analysis of the many previous declarations made in this regard and to explain the consequences thereof.

The petitioners in the matter of Anuradha Bhasin argued that the impugned limitations violated their right to free speech and expression, as well as their right to free commerce and avocation. To that end, the Court offered remarks on the nature of basic rights (noting particularly the ambit of Article 19, which provides for a multitude of freedoms to an Indian citizen).

Fundamental Rights are at the heart of the Indian Constitution since they define people’ existence and regulate their interactions with the state. The current article focuses only on Article 19.

In clause (1) of Article 19, as a Right to Freedom, it sets forth six rights accessible to an Indian citizen, including freedom of speech and expression, the right to practise any profession or carry on any activity, trade, or business, the right to gather peacefully and without weapons, and so on. These rights, however, are not absolute, since they are subject to the limitations set out incomparable provisions ranging from Article 19(2) to Article 19(3). (6). It has been believed that the basic rights included in Part III of the Indian Constitution are specified as a negative list, with the result that “no individual may be denied such right unless the Constitution itself imposes such limitations.”

Even if Article 19 is not absolute, the limits placed on rights must pass the “Test of Proportionality,” which is “inherently entrenched” in the Constitution under the “Doctrine of Reasonable Restrictions.” The legislation imposing limitations will be considered proportionate if it is intended to accomplish a legitimate aim that is important enough to justify overriding a constitutionally protected right or freedom. The measures enforced must be necessary and logically related to the goal being pursued. There must be a suitable relationship (“proportionality stricto sensu” or “balancing”) between the significance of attaining the appropriate goal and the societal value of avoiding the constitutional right from being limited. The least restrictive approach should be used, with procedural safeguards in place to prevent misuse of such intervention.

According to the idea of proportionality, a limitation must be adapted to the geographical area of the restriction, the stage of an emergency, the nature of the urgency, the length of such restrictive measure, and the type of such restriction. Because the imposed limitations have significant consequences for the affected parties’ basic rights, they must be justified by adequate evidence and subject to judicial scrutiny.

Article 19(1)(a) of the Indian Constitution establishes freedom of speech and expression as a Fundamental Right. The right to be informed and the right to know are both guaranteed by the freedom to express oneself via various media. This is required to instil a sense of security and extended connection.

It involves the right to distribute knowledge to a broad range of people. The spread of knowledge or its increased effect cannot limit the substance of the right, nor can it justify its rejection.

Given the current state of affairs, the internet’s modern significance as a medium of information dissemination cannot be overstated.

The acclaimed Kerala High Court decision acknowledged the right to Internet connection as part of the right to education and the right to privacy under Article 21 of the Indian Constitution. It went on to say that a regulation or instruction that restricts students’ access to the Internet (a basic freedom and a means for ensuring their right to an education) cannot be upheld.

While this decision might have served as a guideline for the Supreme Court when it heard petitions in the matter of Anuradha Bhasin and Anr. v. Union of India, the Court treaded cautiously on the present internet clampdown and its impact on basic rights.

The Information Technology Act of 2000 (IT Act), the Criminal Procedure Code of 1973 (Cr.P.C), and the Telegraph Act of 1885 all include procedural mechanisms for Internet limitations (Telegraph Act). Section 69A of the IT Act, read in conjunction with the Information Technology (Procedures and Safeguards for Restriction Access to Information by the Public) Rules, 2009, provides for the blocking of information access. The section’s goal is not to limit or prohibit access to the internet as a whole, but rather to restrict access to certain websites on the internet.

Prior to 2017, any action limiting or even shutting down the internet was enacted under Section 144 of the Criminal Procedure Code (Cr.P.C). With the adoption of the Suspension Rules under Section 7 of the Telegraph Act in 2017, the situation has altered. According to the Rules, every order issued under them must be reasoned. Within one working day, the order should be submitted to a Review Committee established under the Suspension Rules. The Assessment Committee should conduct a periodic review of the orders issued and publish its conclusions on whether the order made under the Suspension Rules is in compliance with the primary law, namely Section 5(2) of the Telegraph Act.

The directives under consideration are conditional on the Government or the authority involved in determining the existence of a “public emergency.” A “public emergency” has been defined as anything that threatens public safety, India’s sovereignty and integrity, the security of the state, cordial relations with other nations, public order, or the prevention of incitement to commit an offence.

Because the orders impact people’s lives, liberty, and property, they should be made publicly accessible via an appropriate method. This should also be subject to judicial scrutiny.

The limitations envisaged by the Suspension Rules are only temporary. As a result, the same must not be permitted to go on for any longer than is absolutely required.

The Supreme Court had just a few points to decide in the current petition, the most significant of which was as follows :

  • Is it true that freedom of speech and expression, as well as the freedom to practise any profession or carry on any activity, trade, or business via the Internet, are among the basic rights guaranteed by Part III of the Constitution?
  • Is the government’s move to restrict internet access legal?

The Court recognised that free flow of information is not only a normative expectation under the Constitution, but also a requirement under natural law, and thus no law should be passed secretly unless there is some specific ground of privilege or countervailing public interest to be balanced, which must be explicitly claimed by the State.

The Court relied on Ram Jethmalani v. Union of India to require the publishing of decisions with far-reaching implications for individuals’ rights and freedoms. It expressly ruled that the government’s argument (that it is too difficult to provide numerous orders issued and withdrawn on a daily basis) is not a legitimate justification to deny order publication.

The Court ruled that permanent Internet blocking/prohibition cannot be allowed. As a result, the Review Committee must look at more than only whether the limits are still in accordance with Section 5(2) of the Telegraph Act. It must also investigate whether the instructions are still reasonable. The order suspending internet access must not be allowed to last longer than necessary.

With regard to the burgeoning growth of the internet, the Hon’ble Court held that freedom of speech and expression via the internet is an integral part of Article 19(1)(a), and that any restrictions on the same must be in accordance with Article 19(2) of the Constitution.

It was also said that the internet is a vital instrument for trade and business. As a result, the freedom of trade and commerce through the internet is likewise constitutionally guaranteed under Article 19(1)(g), subject to the limitations set out in Article 19. (6).

Thus, the right to free speech and expression under Article 19(1)(a) and the right to do any trade or enterprise under Article 19(1)(g) through the internet are constitutionally protected.

The Court did not decide on the current state of things in the Valley, but it did enable the administration to review the limitations in light of the principles that had been established.

The Supreme Court has established the jurisprudence in this case, requiring a balance to be struck between individual rights and national security considerations. If there is no imminent threat of violence, the war against terrorism does not justify the restriction of free expression. Prospectively, the Court has established protections against the arbitrary cessation of communication services. The need to produce reasoned orders, make them public, and submit them to periodic review would help safeguard people’ basic liberties from assault.

The Court, on the other hand, has failed to apply the law to the circumstances of the current case. As a result, the directives given fall short of alleviating the current plight of the people of Kashmir. The duty for obeying court orders has been assigned to the state, which is the primary offender of this violation of rights in this instance. It is also worth noting that the Court has only allowed for the right to free expression and expression, as well as the right to do any trade or company via the medium of the internet, and not for the right to the internet itself. This creates a paradoxical scenario in which the former rights are dependent on the latter, which has not been recognized as a basic right.

At best, it becomes an intellectual exercise, and subsequent Court declarations are likely to attain coherence.

The Internet’s significance in everything from strategic to everyday matters cannot be overstated. Finally, the Hon’ble Supreme Court’s remarks are worth noting: “Law should imbibe technological development and accordingly mould its rules so as to cater to the needs of society.” Non-recognition of technology inside the legal framework is simply a detriment to the inevitable.”

Written by Somesh Vaidya

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