Bivas
Right to Use Internet : A Fundamental Right ?
Bivas Chatterjee 22 May 2021

Right to Use Internet : A Fundamental Right ?

Justice Stephen Breyer of the US Supreme Court –

“Science in the Courtroom”, “In this age of science, science should expect to find a warm welcome, perhaps a permanent home, in our courtrooms… Our decisions should reflect a proper scientific and technical understanding so that the law can respond to the needs of the public.”

In ACLU v. Reno, 521 US 844, one American Court defined “Internet” in the following way:

“The internet is an international network of interconnected computers.”

Press information Bureau under Government of India in one press release* has enlightened us in the following ways:

India is the world’s largest open Internet society and the Government welcomes social media companies to operate in India, do business and also earn profits. However, they will have to be accountable to the Constitution and laws of India.

The statistics of social media users in India is as follows:

• WhatsApp users: 53 Crore

• YouTube users: 44.8 Crore

• Facebook users: 41 Crore

• Instagram users: 21 Crore

• Twitter users: 1.75 Crore

In fact India is standing on the threshold of being crowned as world’s second largest internet population/ netizens.

In the above backdrop today, I shall discuss the following landmark case of Hon’ble Supreme Court of India being Anuradha Bhasin vs Union Of India decided on 10 January, 2020

The Fact of the Case: “Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security. Subsequently, educational institutions and offices were ordered to remain shut until further orders. On 04.08.2019, mobile phone networks, internet services, landline connectivity were all discontinued in the valley, with restrictions on movement also being imposed in some areas.

4. On 05.08.2019, Constitutional Order 272 was issued by the President, applying all provisions of the Constitution of India to the State of Jammu and Kashmir, and modifying Article 367 (Interpretation) in its application to the State of Jammu and Kashmir. In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquility, imposed restrictions on movement and public gatherings by virtue of powers vested under Section 144, Cr.P.C. Due to the aforesaid restrictions, the Petitioner in W.P. © №1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.

5. Aggrieved by the same, the Petitioners (Ms. Anuradha Bhasin and Mr. Ghulam Nabi Azad) approached this Court under Article 32 of the Constitution seeking issuance of an appropriate writ for setting aside or quashing any and all order(s), notification(s), direction(s) and/or circular(s) issued by the Respondents under which any/all modes of communication including internet, mobile and fixed line telecommunication services have been shut down or suspended or in any way made inaccessible or unavailable in any locality. Further, the Petitioners sought the issuance of an appropriate writ or direction directing Respondents to immediately restore all modes of communication including mobile, internet and landline services throughout Jammu and Kashmir in order to provide an enabling environment for the media to practice its profession. Moreover, the Petitioner in W.P. © №1031 of 2019 also pleaded to pass any appropriate writ or direction directing the Respondents to take necessary steps for ensuring free and safe movement of reporters and journalists and other media personnel. Lastly, she also pleaded for the framing of guidelines ensuring that the rights and means of media personnel to report and publish news is not unreasonably curtailed.”

Amongst others, One of The Important Issue Was:

Whether the freedom of speech and expression and freedom to practise any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Constitution?

Hon’ble Court Observed on the Positive Role of Internet: Some of the important observations of Hon’ble Court on the positive role of internet are as follows:

I. “there is no dispute that democracy entails free flow of information..”

II. “Now, we need to concern ourselves about the freedom of expression over the medium of internet. There is no gainsaying that in today’s world the internet stands as the most utilized and accessible medium for exchange of information.”

III. “Law and technology seldom mix like oil and water.”

IV. “In this light, the importance of internet cannot be underestimated, as from morning to night we are encapsulated within the cyberspace and our most basic activities are enabled by the use of internet.”

Hon’ble Court Observed on the Negative Role of Internet: Some of the important observation of Hon’ble Court on the negative role of internet are as follows:

“36. Modern terrorism heavily relies on the internet. Operations on the internet do not require substantial expenditure and are not traceable easily. The internet is being used to support fallacious proxy wars by raising money, recruiting and spreading propaganda/ideologies. The prevalence of the internet provides an easy inroad to young impressionable minds. In this regard, Gregory S. McNeal,3 Professor of Law and Public Policy, Pepperdine University, states in his article about propaganda and the use of internet in the following manner:

“Terrorist organisations have also begun to employ websites as a form of information warfare. Their websites can disperse inaccurate information that has far­reaching consequences. Because internet postings are not regulated sources of news, they can reflect any viewpoint, truthful or not. Thus, readers tend to consider internet items to be fact, and stories can go unchecked for some time.

Furthermore, streaming video and pictures of frightening scenes can support and magnify these news stories. As a result, the internet is a powerful and effective tool for spreading propaganda.”

The Important Verdicts:

• “Therefore, the freedom of speech and expression through the medium of internet is an integral part of Article 19(1)(a) and accordingly, any restriction on the same must be in accordance with Article 19(2) of the Constitution.”

• “Therefore, the freedom of trade and commerce through the medium of the internet is also constitutionally protected under Article 19(1)(g), subject to the restrictions provided under Article 19(6).”

• “We declare 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 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.”

• “We are confining ourselves to declaring 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.”

Hence Indian judiciary whole-heartedly recognise the movement in internet is protected as any other fundamental rights, of course has the restrictions of due process of law like that of movement in the physical world.

(*Press Information Bureau, Government of India : https://pib.gov.in/PressReleseDetailm.aspx?PRID=1700749)

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