RIGHT TO ACCESS INTERNET: A FUNDAMENTAL RIGHT?
- Akshat Aggarwal
- Sep 30, 2020
- 7 min read
Updated: Oct 1, 2020

Recent geometrical advances in science, technology, human development and high standards of living have brought to the fore the stark fact that in order to progress and develop the potential and growth of the citizens of its country, the state need to work hard for a brighter and a better future.
For this, the state needs to provide adequate rights, freedom, and liberty to its subjects. Today in every democratic free country every individual possesses basic human rights by virtue of its own laws or by the Universal Declaration of Human Rights (UDHRC). Human rights have been constantly evolving throughout human history. These are the certain basic rights and freedom that every individual is entitled to enjoy simply because they are born as human beings. They have been intricately tied to the laws, customs, and religion throughout the ages. In short, to have peace, prosperity, and development in a country, human rights are inevitable.
But the human rights as it stands today not only includes the right to equality, right to life, liberty, social security of persons etc. without distinction of any kind such as race, color, sex, religion, etc. but also includes digital rights such as the right to access the internet, right to privacy etc.
What are Digital Rights?
Digital rights are basically extensions of human rights in the internet era. Digital rights, in the context of digital technologies, especially the internet, include the right of individuals to access, use, create and publish digital media. These are generally recognized as human and legal rights which entitle persons to access and use computers and other electronic devices and telecommunications networks1. Thus, digital rights emerge from basic human rights particularly related to the protection and realization of the right to privacy and freedom of speech and expression. The extent to which digital rights are recognized varies from country to country, but Internet access is a recognized right in several countries.
Q.What is Right to Internet Access?
Ans- The right to internet access, also known as the right to broadband or freedom to connect, is the view that all people must be able to access the Internet to exercise and enjoy their rights to freedom of expression and opinion and other fundamental human rights, that states have a responsibility to ensure that Internet access is broadly available, and that states may not unreasonably restrict an individual's access to the Internet.
Q. Should Right to Access Internet be made a Basic Human Right?
Ans- The question of making the internet as a human right has been long debated across the world. There are certain countries which have agreed on making internet access as a fundamental right. Countries like France, Spain, Greece, Finland, etc. have adopted laws that require the states to work in the field of granting internet access to its people and imposing limitations on itself from unreasonably restricting an individual’s access to information and the internet. In order to maintain and strengthen the right to internet access as a human right at a global level, on various occasions and on different international platforms there have been lengthy and extensive discussions and negotiations.
In May 2011, the United Nations Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression made 88 recommendations on the promotion and protection of the right to freedom of the expression online, including several to secure access to Internet for all. Other recommendations call on states to respect online anonymity, adopt privacy and data protection laws.
In the Summer of 2016, the United Nations Human Rights Council released a non-binding resolution condemning international disruption of internet access by governments. The resolution reaffirmed that ‘the same rights people have offline must also be protected online’. The said council emphasised that right to internet access should be made a fundamental right.
RIGHT TO INTERNET ACCESS: INDIAN PERSPECTIVE
There is no gainsaying that in todays world the internet stands as the most utilized and accessible medium of exchange of information. It has become a basic necessity for all human beings to carry out their day to day lives. Either it is trade, business, profession, education etc. it has become an essential service of modern lifestyle.
The Indian courts have also kept this in mind and emphasized this view from time to time which can be seen in its judgements as we look upon.
In the case of Faheema Shirin V. State of Kerala (2019)–
The Kerala High Court remarkably took a giant step forward and declared that the right to internet access is a fundamental right forming part of the right to privacy under Article 21 of the constitution of India. This commendable judgment was delivered by a single Bench of Justice PV Asha while allowing a petition filed by a student named Faheema Shirin challenging the unwarranted restrictions on the usage of mobile phones in a girl’s hostel. The Kerala High Court also added that it also forms part of the right to education. The Court also
noted the relevance of United Nations Resolution 26/13 on “the promotion, protection, and enjoyment of human life on the internet” [p. 19] which emphasized that access to information on the Internet promotes the right to education by facilitating vast opportunities for wholesome education.
Relying on Vishaka & Others v. State of Rajasthan & Others (2019) the Court used the judgment 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 occupying the fields when there is no inconsistency between them” in the light of Articles 51(c) and 253 of the Constitution of India.
Accordingly, the Court concluded that the right to have access to the Internet becomes the part of the right to education as well as right to privacy under Article 21 of the Constitution of India.
In the case of Anuradha Bhasin V. Union of India and others (2019) / Ghulam Nabi Azad V. Union of India (2019):
The three-judge bench of the Supreme Court led by Justice N.V Ramana delivered a landmark judgement in response to a bunch of petitions challenging restrictions on movement under section 144 of The Code of Criminal Procedure (CrPC) and widespread internet and telecommunication ban. It was argued that restricting physical movement along with online communication restriction violates Article 19(1)(a) of Indian constitution as right to internet is a part of Article 19(1)(a).
The court held ‘‘that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of the internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.’’
The Supreme Court also held the view that suspension of internet services indefinitely is not permitted under Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. And any order regarding internet suspension issued under the Suspension Rules, must adhere to the principle of proportionality and cannot extend beyond the necessary duration. Such an order is subjected to judicial review. Principle of proportionality means that the court will see that the legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve.
In the case of Foundation for Media Professionals V. Union Territory of Jammu and Kashmir and others (2020) also popularly known as 4G Case.
The ban of 3G & 4G internet service in Union territory of Jammu and Kashmir was challenged on the ground that it violates right to education, right to health, right to trade, business, profession and many other fundamental rights. The Respondents, on the other hand, contended that restoration of 4G services could give rise to anti-national activities and militancy.
The court said that it becomes essential and desirable to have better internet during the covid pandemic and a national lockdown. The court also considered the fact that infiltrators can destabilize the integrity of the nation and can cause incidents resulting in the death of the
innocent citizens and security forces. The court agreed to its observation in Anuradha Bhasin judgement that Internet is used to support fallacious proxy was by raising money recruiting and spreading propaganda and ideology.
The Hon’ble Supreme Court Bench consisting of Reddy J. And N.V. Ramana J. considered the fact that there must be a “balance between national security and human rights of the general public”.
Thus, the court stating the issue of restoration of 4G internet service in the valley a very important but a sensitive issue on national security and human rights, the court held that the committee will be formed which will take a balance decision keeping both aspects in mind.
Q. Why the Right to Internet Access Should be a Fundamental Right?
Ans- To get rid of digital divide and allowing citizens to have array of services and access to information and for creating better livelihood opportunities right to internet access and digital literacy is important in 21st century.
Curbing inequality is the basis of social justice and development which can find its mention in Article 39 of the Directive principles of the state policy in the Indian constitution and consequently it is the need of the hour to broaden the horizon of fundamental rights so that the people can live a meaningful and a dignified life.
CONCLUSION:
Thus, the Supreme Court has not declared the right to access the internet a fundamental right but right to free speech and expression and to carry on any trade, business or occupation through the usage of the internet is well protected under Article 19 of the Constitution of India, subject to restrictions. The internet can be suspended only for a temporary duration and not indefinitely. The court also cited the argument of Mr. Vinton G. Cerf, one of the fathers of the internet in Anuradha Bhasin judgement. He argued that while internet is very important, however, it cannot be elevated to the status of human right. Technology, in his view, is an enabler of rights and not a right in and of itself. Consequently, none of the counsels pleaded in the above cases to declare it as a fundamental right, the court restricted its approach towards the same.
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