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The Supreme Court has reserved the order on the issue of restoration of 4G internet in Jammu and Kashmir. Until this point, with the filing of the petition, the court seeking response from the government and the government submitting its response, there is one particular submission that has emerged that needs emphasizing. The J&K administration told the apex court, in a counter affidavit to the petition, that right to access the internet is not a fundamental right and that the state can curtail freedom of speech and right to trade through internet. Before delving into this submission and its viability, let us have a look at the background of the case and why right to internet is a point of contention here.
The petition
Around April 21, the Supreme Court asked the Centre as well the J&K administration to file a counter affidavit to spell out reasons why 4G internet should not be restored in the valley. Until then the defense used by the government was that doing so would affect national security. This petition, filed by Foundation for Media Professionals challenged the government’s decision to restrict the internet speed to 2G as being violative of Articles 14 (right to equality), 19 (freedom of speech), 21 (right to life) and 21A (right to education) of the Indian Constitution.
After the abrogation of Article 370 and reorganisation of Jammu and Kashmir into a Union Territory the internet was completely suspended, towards the end of January this year, 2G services were restored there albeit with some restrictions after a Supreme Court order finding internet shutdown illegal. The court had observed that indefinite suspension is not permissible and restrictions on internet have to follow the principle of proportionality under Article 19(2), which speaks about reasonable restrictions on fundamental rights.
In the beginning of March, the Jammu and Kashmir administration decided to lift the ban put on access to social media sites but on 2G speed internet.
Emphasizing the need for 4G internet speed in times when the country is facing outbreak of an epidemic, the petition had contended, “With limited and restricted access to the internet by allowing only 2G speed in the UT, patients and doctors are unable to access latest information, advisories, and guidelines”. The petition lays out real time difficulties being faced by health care personnel in the UT and states, “Various public health practitioners, medical professionals, and doctors have repeatedly expressed their concern about wasting precious time trying to download the latest studies, protocols, manuals and advisories on treatment and management of COVID 19. In some cases, doctors are not able to access these resources at all, due to the internet speed being too slow to download heavy files.”
The government’s defense
In its defense, the J&K administration told the apex court that right to access the internet is not a fundamental right and that the state can curtail freedom of speech and right to trade through internet. It said right to access internet is not a fundamental right in itself but an enabler of the right to free speech and freedom to carry on trade and business.
It further said that only a reasonable quantum of restrictions has been imposed by reducing the speed of internet in order to protect the sovereignty, integrity and security of the country.
It further submitted that the allegations made by the petitioner with regards to deprivation of access to education and health care were incorrect, while stating that all possible steps are being taken to ensure that these services are made accessible to the people in J&K. The administration said that platforms like Whatsapp and Facebook have the potential for misuse by terror outfits in Pakistan and 4G internet allows uploading of data heavy videos which are provocative and incite violence.
Firstpost reported that the administration further said that, Internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies and prevalence of internet provides an easy inroad to young impressionable minds.
Right to internet – Fundamental or not?
In January, the apex court had looked at this aspect of internet being a fundamental right while reviewing the restrictive orders in J&K with regards to the internet which had been completely shut down in the Union Territory. The court had then observed, “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 internet enjoys constitutional protection under Article 19(1) (a) and Article 19(1)”.
Through this observation, the court identified internet to be a medium of expression and for carrying out trade or any profession or business only. Internet has manifested into various other aspects of our life. With the government promoting the idea of ‘Digital India’ it has become an enabler of various economic activities, consumer activities, financial activities and so on. Hence, it can be said that the apex court took a very narrow view while upholding internet to be fundamental with respect to freedom of expression and freedom of trade.
In any case, it did give right to internet a fundamental character but one can arguably say that it has not upheld it as an absolute fundamental right. On the other hand, one can also contend that the apex court’s observation amounts to internet being fundamental under the interpretation of Article 19(1)(a) and Article 19(1).
Despite of this, the J&K government unabashedly submitted to the apex court itself, that internet is not a fundamental right and nobody batted an eyelid. Albeit, the explanation was also given that “right to access internet is not a fundamental right in itself but an enabler of the right to free speech and freedom to carry on trade and business”.
How the Supreme Court failed to take note of this erroneous submission by the J&K administration is a question to be asked, but may never be answered.
Before the Supreme Court, the Kerala High Court had declared internet to be a fundamental right, in September 2019. In Faheema Shirin vs. State of Kerala (W.P(C).No.19716/2019; decided on Spetember 19, 2019), the High court had held thus,
“18…..When the Human Rights Council of the United Nations have found that right to 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.”
The United Nations General Assmebly, on July 14, 2014 adopted a resolution on exercise of human rights in particular the right to freedom of expression on the Internet. The resolution, among other things, held,
“9. Decides to continue its consideration of the promotion, protection and enjoyment of human rights including the right to freedom of expression on the Internet and other technologies as well as how the Internet can be an important tool for development and for exercising human rights in accordance with this programme of work.”
The Kerala Hight Court cited this resolution while looking into apex court judgment in Vishaka & Ors. v. State of Rajasthan & Ors. [AIR 1997 SC 3011]; which had held that “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.”
Thus, the High Court held,
“Going by the aforesaid dictum laid down in the said judgment, the 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, it can be said that until now, the Indian courts of law have held right to internet manifested in right to education and right to privacy (Kerala High Court) as well as right to freedom of expression and right to carry out trade, profession and business (Supreme Court).
Hence, it would be erroneous to say that right to internet is not a fundamental right. This is also because the Supreme Court has held that the restrictions on internet have to follow the principles of proportionality under Article 19(2).
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