ARE INTERNET SHUTDOWN VIOLATING FUNDAMENTAL RIGHTS?
Updated: Mar 30
Author: Hani Dipti, I year of BBA.,LL.B(Hons), from Chanakya National Law University.
India has the most elevated number of internet bans on the planet with the people of Jammu and Kashmir being the most noticeably awful influenced Government impose restriction on online communication of freedom of movement in Jammu and Kashmir. It is exceptionally unexpected for a State that savagely advocates the idea of 'Digital India' to boycott the internet for an incomprehensible delayed timeframe in one of its most harassed regions.
Therefore, the Supreme Court of India was asked to decide upon the constitutionality of the communication shutdown in the case of Anuradha Bhasin v. Union of India. The lawfulness of the internet shutdown and restrictions of movement was challenged in the Supreme Court by Ms. Anuradha Bhasin.
THE SUPREME COURT AND ITS JUDGEMENT
The Supreme Court in its judgment managed by the process that governs internet shutdowns and restrictions imposed under Section 144 of the Code of Criminal Procedure. The Apex Court explained on the internet shutdown the orders which led to an internet shutdown should be put out in the public domain and also, clarified that there cannot be an indefinite extension of the internet shutdown. The right to freedom of speech and expression is one of the most broadly celebrated fundamental rights revered under the Constitution of India. The Supreme Court in its milestone judgement expressly announced that the privilege to the right to speak freely of discourse and articulation over the Internet is a major right.
Critically, as a component of the judgment, the Supreme Court has noted that “technology is empowering rights, however it is not a right in and of itself” and refrained from declaring that ‘right to Internet access's is a fundamental right ensured by the Constitution. To say that the Internet is universal in our day-by-day lives would be putting it midly. From keeping up to date with current issues, paying utility bills, accessing social media to even ordering food and groceries, the internet plays a vital role. Internet access demonstrate a useful accelerator in all social development objectives and targets of the Sustainable Development Goals.
As of now, India has one of the noteworthy numbers of Internet users in the world, and a majority of these users also use social media platforms to communicate with others and share their thoughts and perspective with them. Of late, there have been several instances of Internet shutdown across the nation, which has put in danger the right to freedom of speech and expression. Those states have a responsibility to ensure that Internet access is comprehensively accessible, and that states may not unreasonably restrict an individual's access to the Internet. It is the view that all people must be able to access the Internet in order to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights. The Supreme Court’s judgment has provided a strong precedent, which will ideally be sufficient to deter the recurrence of such circumstances in the future.
INDIA AND INTERNET SHUTDOWNS
It is applicable to make reference to the fact that the right to freedom of speech and expression under the Indian Constitution is in the nature of a ‘negative’ right, implying that it cannot be denied unless the Constitution itself imposes certain limitations and restrictions. Importantly, Constitution provides defined ‘reasonable restrictions’ where this right can be curbed. Hence, this right is not absolute in nature as the limitations become possibly the most important factor where they are vital in light of sovereignty and integrity of India, national security, maintenance of public order, etc. It should be noted that in 21 countries during the year 2019, 122 major shutdowns took place and out of which 106 shutdowns were in India alone.
Internet shutdowns in India are administered by two laws: Section 144 of the Code of Criminal Procedure of 1973 (“Section 144”) and Section 5 of the Indian Telegraph Act of 1885 in consonance with the Temporary Suspension of Telecom Services (Public Emergency and Public Safety) Rules of 2017 (“2017 Telecom Rules”). While specific rules were outlined under the Indian Telegraph Act, 1885 in 2017 to ensure that suspension of Internet services is backed by satisfaction of specific conditions, these rules have somewhat demonstrated genuinely ineffectual in the current conditions. Hence, there is an inevitable need to find some kind of harmony between the established law of the privilege of the right to speech and expression on one hand and public safety on the other.
In this light, there is a need to guarantee that the suspension of Internet administrations is similar to the target that is looked to be accomplished by such suspension. It is also important to deplete any remaining alternatives before curbing access to an essential service such as the Internet. Such actions action should only be executed as a last option and whenever implemented, should be subject to periodic review. Without satisfactory governing rules, shut down of Internet administrations is probably going to proceed with unabated and additionally endanger the right to freedom of speech and expression.
This right and the Internet share a very intrinsic, indistinguishable relationship in the present day, and it is fundamental that neither the right nor the medium are controlled without reasonable grounds or for an inconclusive period.
PURVIEW OF FREEDOM OF SPEECH AND EXPRESSION IN INDIA
While upholding the right to access to the Internet, the court upheld the freedom of the press and free speech and observed that “there is no uncertainty that the significance of the press is entrenched under Indian Law. The freedom of the press and free speech is a requirement in any democratic society for its effective functioning”. The Freedom of Speech and Expression is viewed as one of the essential human rights. Taking note of this, the framers of the Constitution of India provided its citizens the fundamental right to express their opinions freely, stating that “All citizens shall have the right to freedom of speech and expression. Freedom of the press is a significant and consecrated right cherished under Article 19(1)(a) of the Constitution”. To run a democracy, governments are required to respect the freedom of the press at many a times. Journalists are to be obliged in reporting, and there is no justification for permitting a sword of Damocles to loom over the press inconclusively.
The right to internet access is also a prominent feature of the Universal Declaration of Human Rights (UDHR). Article 19 of the UDHR states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without obstruction, and to give, receive and transmit facts and ideas through any media and nonetheless of frontier”. At point when the Human Rights Council of the UN has found that the right to access to the internet is a fundamental freedom and a key to ensure the right to education, an apparatus to guarantee the privilege to training which impairs the said right of the students cannot be allowed to stand in the eye of the law.
In general, censorship in India, which includes the suppression of speech or other public opinion, raises issues of freedom of speech, which is integrated by the Indian constitution. The Constitution of India ensures freedom of expression, however put certain restrictions on content with a view towards keeping communal and religious harmony, given the history of communal tension in the country.
Our Constitution provides every citizen the right to express their thoughts, opinions, and criticism freely under article 19(1)(a). However, this freedom is subject to reasonable restrictions which may be enforced by the legislative body. These restrictions are broadly described under Article 19(2). The right of the internet is an integral part of is an integral right of each and every human being and part of the basic fundamental rights provided by our Constitution, beside with a provision to apply reasonable restrictions on the same.
However, the right as well as the restrictions have been exploited and misused on multiple occasions, ranging from national security to increase in communal tension across the nation by indulging into hate trolling. On the other hand internet is a boon in now a world it offers an endless source of knowledge to communication, our livelihood is somehow directly depends on the internet.
Therefore, restriction on internet is not a suitable option. What is required is balance. There is a very thin line between providing too much freedom and providing too less freedom, both of which will take the embodiment of the privilege out of it. It is a thin line that the country needs to walk on and diminish the ambiguity.