The Supreme Court in recent years has tasked itself in delivering decisions which are considered necessary to control and protect the infringement of fundamental rights. Recently, the Supreme Court in Anuradha Bhasin and ors Vs. Union of India held that the right to freedom of speech and expression under Article 19(1)(a) and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected. Although this decision is important if we look at the situations of constant internet shutdowns prevailing in Jammu and Kashmir and other parts of the country, it falls short of what we could call a decision backed by judicial creativity.
In this case, the court refrained from declaring the right to access the internet itself as a fundamental right. It is on this aspect the decision falls short of judicial creativity. The Court did a textual interpretation or adopted a minimalist approach while dealing with the question. Minimalism is often a tendency to decide on narrower (rather than broader) and shallower (rather than deeper) grounds. Instead of it, the court could have engaged in a purposive interpretation to declare the right to access the internet itself as a fundamental right. Nonetheless, the decision is important as it gives some relief to the people who are being subjected to constant internet shutdowns by the state.
In the past few years, the government of India has been resorting to practices of suspending internet facilities. In 2018 alone, according to the report of Software Freedom Law Centre, there have been more than a 100-internet shutdown in different parts of India. A major disruption in internet services was faced by the people of Jammu and Kashmir following the abrogation of article 370. Later, internet shutdowns were witnessed by people in other parts of the country following the protest against the Citizenship Amendment Act.
It is against this backdrop, internet rights gain prominence. It is to be noted that access to and use of the Internet is increasingly indispensable for the full enjoyment of human rights including the right to freedom of expression, the right to education, the right to freedom of peaceful assembly and association, the right to take part in the government of a country, the right to work, and the right to rest and leisure. The right to access to, and make use of, the Internet derives from its integral relationship to all of these human rights.
In our Constitution, freedom of speech under art. 19(1)(a) includes the right to express one’s views and opinion at a particular issue through any medium. The expression “freedom of speech and expression” in art.19(1)(a) has also been held to include the right to receive information and disseminate the same. Access to the internet in such a scenario would strengthen and facilitate the freedom of speech and expression under 19(1)(a).
Access to the internet will facilitate the communication of opinion, views and information through online medium. There exists a contrapositive relationship between Internet and freedom of speech and expression under 19(1)(a). If there is access to the internet, 19(1)(a) is strengthened but if there are internet shutdowns, 19(1)(a) dies down. Internet shutdowns do not only impact freedom of speech and expression but also the right under 19(1)(g) i.e. right to practise any profession or to carry on any occupation, trade or business. The report of ‘The Global Cost of Internet Shutdowns in 2019’ stated that with the internet blackouts lasting for 4,196 hours in 2019, India has lost over $1.3 billion in economic terms.
It is to be noted that infringements are not of only article 19 rights but also rights mentioned in other articles of the Constitution as well. In Faheema Shirin R.K. Vs State of Kerala and Ors, the court held that right to have access to the internet is part of the fundamental right to education as well as the right to privacy under article 21 of the Constitution. The court further observed, “When the Human Rights Council of the United Nations has found that the right of access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”
These judgements are worth appreciation because in these cases, the courts have attempted to touch upon an issue which threatened the enjoyments of rights enshrined in the Constitution. These courts have made recognition of a right which we did not think had existed before. The courts have made something explicit which was implicit in article 19 of the Constitution. However, the attempt by these courts lacked judicial creativity. Judges lacked a creative and imaginative role. The court should have engaged itself in a purposive interpretation of the constitution and should have declared the right to access the internet itself as a fundamental right.
Nonetheless, in the light of the above arguments, it is time that we recognise the right itself as a fundamental right. It is time that we fill the gap which has been left out open by the previous courts. It is time we put a halt on the constant internet shutdowns which put our enjoyment of rights in abeyance. Internet, in our traditional understanding, was something used for leisure but now it has become our means to achieve our ends.
 Anuradha Bhasin and ors Vs. Union of India, (2020)1MLJ574.
 Living in Digital Darkness – A Handbook on Internet Shutdowns in India, May 2018 – by SFLC.
 The Global Cost of Internet Shutdowns in 2019 Report- by Top10vpn.
 Faheema Shirin R.K. Vs State of Kerala and Ors, 2019(4) KLJ634.
Author Details: Sachin Jeph (Nalsar university of law, Hyderabad)
The views of the author are personal only. (if any)