Right to the Internet as a Fundamental Right

Diwakar Prakash Garg, a 3rd-year student from UPES, School of Law has written this Article on “Right to the Internet as a Fundamental Right”.

Introduction

The right to the Internet is a relatively new concept in the world of fundamental rights. It is the idea that every individual has the right to access the internet and to use it freely for personal and professional purposes. However, In India, the discussion of the right to the Internet has gained momentum in recent years, with many arguing that it should be recognized as a fundamental right under the Constitution of India.[1]

Legal framework

The Constitution of India guarantees certain fundamental rights to its citizens, such as the right to life, liberty, and equality. These rights are enshrined in Articles 14-32 of the Constitution. They are considered to be the cornerstone of democracy in India. Over the years, the courts have interpreted these rights expansively, recognizing new rights as society evolves. However, the Constitution does not explicitly recognize the right to the Internet as a fundamental right.

Several laws in India govern the use of the Internet. The Information Technology Act, of 2000 (IT Act) is the primary law that deals with electronic transactions and cybercrimes. The IT Act provides for the protection of sensitive personal data and prescribes penalties for various cybercrimes. In addition, several other laws regulate the use of the Internet, such as the Indian Telegraph Act, the Copyright Act, and the Trademarks Act.

Arguments in favor of recognizing the right to the Internet as a fundamental right:

1. Access to information: The internet is a vast repository of information, and it has become an essential tool for learning and education. Recognizing the right to the internet would ensure that every individual has access to information, irrespective of their socio-economic background. The Supreme Court has recognized the importance of access to information in various cases. In State of UP v. Raj Narain[3], the court held that citizens have the right to know about the affairs of the government. Also, In Indian Express Newspapers v. Union of India[4], the court held that freedom of the press is essential for the functioning of democracy.
2. Freedom of expression: The internet has become a platform for free expression and speech. Recognizing the right to the internet would ensure that individuals can express themselves freely without fear of censorship or repression. The Supreme Court has recognized the importance of freedom of expression in various cases. In S. Rangarajan v. P. Jagjivan Ram[5], the court held that freedom of expression includes the right to express unpopular views. In Romesh Thappar v. State of Madras[6], the court held that freedom of speech and expression is the foundation of a democratic society.
3. Right to education: The internet has become an essential tool for education, with online courses and e-learning becoming increasingly popular. Recognizing the right to the Internet would ensure that every individual has access to quality education, irrespective of their location. The Supreme Court has recognized the importance of education in various cases. In Unnikrishnan v. State of Andhra Pradesh[7], the court held that education is a fundamental right under Article 21 of the Constitution. Also, In Mohini Jain v. State of Karnataka[8], the court held that the right to education is a fundamental right under Article 21 and Article 14 of the Constitution.
4. Right to employment: The Internet has become a platform for commerce and trade, and it has created new employment opportunities. Recognizing the right to the Internet would ensure that every individual has access to employment opportunities, irrespective of their location. The Supreme Court has recognized the importance of employment in various cases. In Olga Tellis v. Bombay Municipal Corporation[9], the court held that the right to livelihood is a fundamental right under Article 21 of the Constitution. Moreover, In Consumer Education and Research Centre v. Union of India[10], the court held that the right to work with dignity is a fundamental right.
5. Right to Privacy: The internet has also raised concerns about the right to privacy. The right to privacy is not explicitly mentioned in the Indian Constitution, but it has been recognized as a fundamental right by the Supreme Court of India in the case of Puttaswamy v. Union of India (2017)[11]. The court held that the right to privacy is a fundamental right under Article 21 of the Indian Constitution and that it includes the right to informational privacy.
6. Right to Participate in Government: The Internet can also facilitate citizen participation in government by providing access to government information and enabling citizens to communicate with their representatives. The right to participate in government is protected under Article 19(1)(a) of the Indian Constitution. In the case of Subramanian Swamy v. Union of India (2016)[12], the Supreme Court of India held that the right to freedom of speech and expression includes the right to criticize the government and its policies.

A Deep Analysis of the Right to the Internet as a Fundamental Right

The right to the internet is a concept that has gained widespread attention in recent years, as the Internet has become an essential tool for communication, information, education, and commerce. Moreover, The right to the Internet refers to the idea that every individual has the right to access the Internet and to use it freely for personal and professional purposes. In this essay, we will explore the concept of the right to the Internet and its importance in modern society.

The Internet has become an integral part of modern life. It has transformed the way we live, work, and communicate. Moreover, It has become an essential tool for learning, with online courses and e-learning becoming increasingly popular. The Internet has become a platform for free expression and speech. It allows individuals to express themselves freely without fear of censorship or repression. It has also become a platform for commerce and trade, creating new employment opportunities and driving economic growth.[13]

However, despite its many benefits, access to the Internet is not universal. In many parts of the world, including India, access to the internet is limited by factors such as socio-economic status, geography, and government censorship. This has led to calls for the right to the Internet to be recognized as a fundamental right.

Recognizing the right to the internet as a fundamental right would have several benefits. Firstly, it would ensure that every individual has access to information, irrespective of their socio-economic background. This would help bridge the digital divide and ensure that the benefits of the internet are available to all. Secondly, it would ensure that individuals can express themselves freely without fear of censorship or repression. This would help promote democracy and ensure that the voices of all citizens are heard. Thirdly, it would ensure that every individual has access to quality education and employment opportunities, irrespective of their location.

The Constitution of India guarantees certain fundamental rights to its citizens, such as the right to life, liberty, and equality. These rights are enshrined in Articles 14-32 of the Constitution. They are considered to be the cornerstone of democracy in India. Over the years, the courts have interpreted these rights expansively, recognizing new rights as society evolves. However, the Constitution does not explicitly recognize the right to the Internet as a fundamental right.

Several laws in India govern the use of the Internet. The Information Technology Act, of 2000 (IT Act) is the primary law that deals with electronic transactions and cybercrimes. The IT Act provides for the protection of sensitive personal data and prescribes penalties for various cybercrimes. In addition, several other laws regulate the use of the Internet, such as the Indian Telegraph Act, the Copyright Act, and the Trademarks Act.[14]

Despite the existing legal framework, there have been several instances of government censorship of the internet in India. For example, in 2017, the Indian government ordered the blocking of over 800 pornographic websites, citing concerns over the harmful effects of pornography on society. Similarly, in 2019, the Indian government ordered the blocking of several social media accounts and websites in Kashmir, following the revocation of Article 370.

In conclusion, the right to the Internet is an important concept that has gained widespread attention in recent years. Also, Recognizing the right to the Internet as a fundamental right under the Constitution of India would help bridge the digital divide, promote democracy, and ensure that every individual has access to quality education and employment opportunities. While several laws in India regulate the use of the Internet, there have been instances of government censorship that highlight the need for greater protection of the right to the Internet. Hence, The government and the courts must recognize the importance of the right to the Internet and take steps to protect and promote this right.

Is the right to the Internet a fundamental right?

Whether or not the right to the Internet is a fundamental right is a matter of debate and interpretation. The concept of the right to the Internet is relatively new and there is no international consensus on whether it should be recognized as a fundamental right[15].

Some argue that recognizing the right to the Internet as a fundamental right is essential because it enables the exercise of other fundamental rights, such as freedom of expression, access to information, and education. In this view, the right to the Internet is seen as a necessary precondition for the full enjoyment of other fundamental rights.

Others argue that while the internet is an important tool for the exercise of fundamental rights, it is not a fundamental right in and of itself. So they argue that recognizing the right to the internet as a fundamental right would be too broad and could lead to an overburdening of state resources.

The courts in India have not definitively settled the question of whether the right to the Internet is a fundamental right in the Indian context. However, in recent years, there have been several cases that have recognized the importance of the internet and the need to protect access to it.

For example, in 2015, the Supreme Court of India declared that access to the Internet is a fundamental right under Article 19(1)(a) of the Constitution, which guarantees the freedom of speech and expression. The court held that both, the right to access information and the right to know are inherent parts of the right to freedom of speech and expression and that the Internet is an essential tool for the exercise of these rights.

Similarly, in 2016, the Kerala High Court held that the right to access the internet is a fundamental right and that the government has to ensure that citizens have access to the Internet.

Additionally, the Indian government has taken several steps to promote access to the Internet, such as the Digital India initiative, which aims to provide broadband connectivity to all citizens, and the BharatNet project, which aims to connect all villages in India to the Internet.

Conclusion

 The recognition of the right to the Internet as a fundamental right has gained significant attention in recent years. The internet has become an essential tool for exercising various fundamental rights, such as the right to freedom of expression, education, information, privacy, and participation in government. Moreover, various international human rights instruments have also recognized the right to the Internet, and many countries, including India, are beginning to recognize it as a fundamental right.

The Indian Constitution protects various fundamental rights, including the right to freedom of speech and expression, education, and information, which can be exercised through the Internet. Furthermore, Indian case laws have also recognized the importance of the Internet in protecting these rights and have held that the government has to ensure that the Internet is accessible to all for the exercise of these rights.

Overall, the recognition of the right to the internet as a fundamental right can have significant implications for protecting people’s rights in the digital age. Moreover, It can help to ensure that everyone has equal access to the internet. Also that the internet is not arbitrarily restricted or censored. The right to the Internet can also promote transparency, accountability, and citizen participation in government. Thus, governments must recognize the importance of the right to the Internet and take measures to protect it as a fundamental right.

Also Read: Internet Ban and Censorship in India. Click Here!

[1] Bhattamishra, Sarthak, Right to Access to Internet in India: Fundamental Right, or a Glorified Privilege? (June 1, 2021). Available at SSRN: https://ssrn.com/abstract=3857364 also on http://dx.doi.org/10.2139/ssrn.3857364

[2] 1975 AIR 865

[3] 1985 SCR (2) 287

[4] 1989 SCC (2) 574

[5] 1950 SCR 594

[6] 1993 SCR (1) 594

[7] 1992 SCR (3) 658

[8] 1985 SCR Supl. (2) 51

[9] 1995 SCC (3) 42

[10] (2017) 10 SCC 1)

[11] 7 SCC 221

[12] Pollicino, O. (2022). The Right to Internet Access: A Comparative Constitutional Legal Framework. In M. Ienca, O. Pollicino, L. Liguori, E. Stefanini, & R. Andorno (Eds.), The Cambridge Handbook of Information Technology, Life Sciences and Human Rights (Cambridge Law Handbooks, pp. 125-138). Cambridge: Cambridge University Press. doi:10.1017/9781108775038.013

[13] Access to the Internet is a fundamental right, rules the supreme court. Available at https://www.thehindubusinessline.com/news/right-to-access-internet-is-a-fundamental-right-rules-supreme-court/article30531490.ece last seen on 10/03/2023

[14] WANG, X. (2016). A Human Right to Internet Access: A Gewirthian Approach. Frontiers of Philosophy in China, 11(4), 652–670. http://www.jstor.org/stable/44157038

[15] Lukose, L. P. (2012). [Review of THE FUNDAMENTAL RIGHT TO INTERNET, by V. Sood]. Journal of the Indian Law Institute, 54(4), 573–575. http://www.jstor.org/stable/43953619