Right to Internet
As per data published by Telecom Regulatory Authority of India (TRAI) the total number of f Internet subscriber base in our country as of March 2021 is around 825 million users. Out of total internet subscribers, 96.77% subscribers are using Mobile devices for access of internet service. Wired internet subscribers are only at 3.15% of the total internet subscribers.
The world has evolved in the way one communicates and expresses his/her beliefs, opinions and shares information. Internet has been a paramount tool in facilitating rural inclusion and disseminating information across the globe. Thus, making the globe truly a smaller place. No time in history has been as well connected as we currently are. This opening new windows of opportunities for service providers and users alike. There has also been a rise in birth of new occupations such as you tubers, influencers, bloggers, vloggers etc. thanks to the growth and the increase in the appetite for content consumption.
The global pandemic affected conventional education multifold. Teachers and students had to resort to online means and explore avenues out of their comfort zones to facilitate learning. But the education-technology (EdTech) sector boomed at these times, resulting in the widespread adoption of remote learning. According to industry reports, education from grades 1 to 12 increased around 6.3 times in 2022, in comparison to 2019 due to the availability of quality online learning.
A unicorn startup or a unicorn company is a private company with a valuation of over $1 billion USD without being listed on the stock exchange and priced via venture funding round. As of January 2nd 2023 there are around 30 EdTech Unicorns across the globe collectively valued at $89 billion. India has 7 EdTech Unicorns.
Even the Government of India hosts online platforms like Swayam which facilitates hosting of all the courses, taught in classrooms from Class 9 till post-graduation to be accessed by anyone, anywhere at any time. More than 1,000 faculty and teachers from across the country have participated in preparing these courses free of cost.
Now considering all these developments it becomes important to understand the right to access and use internet in India. PART III of the Indian Constitution provides the provisions with respect to the FUNDAMENTAL RIGHTS.
Kerala High Court Judgement
Faheema Shirin R.K v. State of Kerala & Ors.
Here the petitioner, Faheema Shirin, was a female student at Sree Narayaguru College (affiliate of the University of Calicut) who was residing at the Women’s Hostel run by the college. The hostel authorities’ implemented new regulations at the Hostel which restricted the use of mobile phones within the hostel from 10:00 pm to 6:00 am and then from 6pm to 10pm, while the use of laptop by undergraduates was prohibited. The petitioner complained to the Hostel Authorities that the restrictions were inconvenient and requested for a meeting. This ultimately resulted in loss of housing to the petitioner and forcing her to travel nearly 150 km every day making it impossible for her to attend he college classes.
The issue reached the Court and it held that the restriction should have connection with the discipline and here it observed that there existed nothing to show that there was any act of indiscipline on account of the usage of mobile phone by the petitioner. Further it was held that the silence of other students on the restrictions would not make a restriction legal if it is otherwise illegal.
The court opined on the benefits of online learning and mobile phones facilitating the exchange of ideas & participation in online mediums. The court stated that the students are adults capable of taking responsibility for their studies and should be allowed to use their mobile phones “to acquire knowledge from all available sources based on which they can achieve excellence and enhance quality and standard of education“.
The Court looked into the United Nations Resolution 26/13 of 14 July, 2014 which provides for access to information on the Internet and also relied on the Apex Court judgement in Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011 : (1997) 6 SCC 241] held that in the light of Article 51(c) and 253 of the Constitution of India stated that the international conventions and norms are to be read into the fundamental rights guaranteed in the Constitution of India in the absence of enacted domestic law in the particular field when there is no inconsistency between them. Thus, by going by the above dictum the Court stated that right to have access to Internet becomes the part of right to education as well as right to privacy under Article 21 of the Constitution of India. Thus, interpreting these rights as fundamental.
Article 21- Protection of life and personal liberty- . No person shall be deprived of his life or personal liberty except according to procedure established by law.
Supreme Court Judgements
Anuradha Bhasin v. Union of India.
Here the ban of internet in the state of Jammu and Kashmir was challenged. On August 5, 2019, the Constitutional Order No. 272 was passed by the President of India applying all provisions of the Constitution of India to Jammu and Kashmir and stripped it from special status enjoyed since 1954. The District Magistrates had imposed additional restrictions on freedoms of movement and public assembly citing authority to do so under Section 144 of the Criminal Penal Code.
On August 4, 2019, mobile phone networks, internet services, landline connectivity were all shutdown in the region. Due to such steps, the petitioner a journalist movements were restricted and this was challenged under Article 19 of the Constitution.
Article 19 of the Constitution under the heading, “Right to Freedom”, talks about the, “Protection of certain rights regarding freedom of speech, etc.” Sub-clause (a) of clause (1) states, “to freedom of speech and expression” and Sub-clause (g) of clause (1) states, “to practise any profession, or to carry on any occupation, trade or business”. This is a fundamental right but is confined with reasonable restrictions imposed by law as mentioned in the following clauses.
In this the Court stated that the government could impose restriction as long as they are sanctioned by law, reasonable in nature and for a legitimate purpose. The Court added that “the degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation.” Here, the court also opposed the argument of the state which said that selective internet sites cannot be banned due to lack of technology. Lastly the court held that due to immediate threat or security of the nation such ban for temporary period was allowed but such ban for indefinite period was not right and thus, there should be balance between Human rights and National security. Thus, 2G internet services were restored in the valley.
Foundation of Media Professionals vs Union of India
The petitions were lodged by the Foundation for Media Professionals, a lawyer, Soayib Qureshi, and the Jammu and Kashmir Private Schools Association. In the backdrop of the Anuradha Bhasin case 2G services were resumed. The petitioners here were seeking to restore the 4G internet in the area following the connectivity blackout imposed in August 2019 by the central government. This blanket ban on 3G and 4G services was challenged.
The Court stated the need of adjusting public safety concerns against the fundamental rights of residents. The Court addressed the means taken by the public authority following the previous judgment of the Supreme Court in Anuradha Bhasin v. Union of India. The Court recognized that the public authority had extended internet from a complete shutdown to permitting all sites through broadband lastly versatile administrations with 2G.
Talking about the proportionality of the limitation, the court analyzed that a blanket order was passed for the whole Union Territory of Jammu and Kashmir rather than for the risk zones. The Court noticed that “the level of limitation and the scope, both regionally and temporarily, should remain according to what is really important to battle a developing circumstance.” While orders provided by the Union Territory of Jammu and Kashmir were for a restricted period, they neglected to give any reason to justify that such a limitation was important to be forced in all of Jammu and Kashmir. Again, following Anuradha Bhasin, the Supreme Court noted limitations ought to just be forced where it is absolutely necessary. Thus, 3G and 4G services were restored in limited areas of J&K.
The right to internet needs to be recognized expressly by the State and is the need of the hour. There exists a great level of requirement from the State to intervene and regulate the market and lay down the policy with regard to meaningful access to internet. With existing schemes like Digital India it is evident that the State understands that paramount importance of the internet in the current times. The right to access the internet in India is making strides at a great pace. With rise in education and trade and commerce over the internet it becomes one of the area which requires due care and attention from the law makers to provide a conclusive stand.
- Anuradha Bhasin v. Union of India.
- Faheema Shirin R.K v. State of Kerala & Ors.
- Foundation of Media Professionals vs Union of India
- The Constitution of India
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Article by ADITYA G S