Recently, while responding to a petition filed in the Supreme Court for the restoration of 4G internet services, the Jammu and Kashmir government said that right to access the internet is not a fundamental right.
This goes against recent court judgments and also shows an unwillingness or inability on the part of the state to understand the fundamental role that internet access plays in the lives of individuals and communities nowadays. In January 2020, while reviewing all orders of restrictions imposed in Jammu and Kashmir in the aftermath of the scrapping of the state’s special status, the Supreme Court declared that the indefinite suspension of the internet was not permissible and repeated shutdowns amounted to an abuse of power.
More importantly, 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 internet enjoys constitutional protection under Article 19(1) (a) and Article 19(1)”. The court also held that the restrictions on the internet have to follow the principles of proportionality under Article 19(2). The judgement by the court follows the Kerala high court’s judgement in Faheema Shirin v. State of Kerala, where the right to internet access was recognised as a fundamental right forming a part of the right to privacy and the right to education under Article 21 of the constitution.
Both judgements establish that the right to internet access has been given limited recognition as an enabler for other rights within Article 19 and 21. Most academic and non-academic literature, especially in India, seeks to locate the right to internet within Article 19. However, an argument can be made that internet access should be recognised as an independent fundamental right, conceivable as an aspect of the right to life under Article 21.
Internet access means access to actionable information, innovation best practices, access to finance and credit facilities, facilitation of entrepreneurship and an enhanced employment market. In terms of social benefits, internet access helps by facilitating and enabling an enhanced utility value of primary necessities, internet access can prove a useful accelerator in all social development objectives and targets of the Sustainable Development Goals.
These involve elements as diverse as poverty and hunger, education, gender equality, child welfare, maternal care, the environment and partnerships between governments and service providers. The internet has become the main enabler of access to education, healthcare, and financial services and in empowering people in all areas of life.
Irrespective of the statement in court, the government has definitely recognised the importance of internet access for citizens. The flagship Digital India Programme, has nine pillars, of which six are directly related to internet access. There are also programmes run by the central government for infrastructure creation, like Bharat Net, and for digital literacy, like PMGDISHA. While the efficacy of these initiatives can be questioned, it definitely shows the state’s intention to recognise the importance of internet access for citizens. Now let’s consider the argument of recognising the right to internet access as an independent right, within Article 21.
One argument could be to recognise it as an independent right linked to Article 21, like the right to education, recognised under Article 21A. If we look at the journey of this right, from Mohini Jain vs State of Karnataka, to Unni Krishnan vs. State of Andhra Pradesh, two things stand out. Firstly, how the court has relied on specific directive principles, such as Articles 38, 39, 41 and 45 to conclude that the fundamental rights guaranteed to citizens, under Article 21 and 19, cannot be realised without ensuring the right to education.
Further, in Unni Krishnan, the court relied on Articles 41, 45 and 46 to specify that the right must be focused on primary education. In this case, Justice Jeevan Reddy states that fundamental rights must be construed in light of the directive principles.
It has become a settled judicial practice that directive principles have been used to broaden, and give depth to some fundamental rights and to imply some more rights therefrom for the people over and above what is expressly stated in the text of the constitution. The biggest beneficiary of this approach has been Article 21. It would be useful to do a similar exercise to map how the achievement of different directive principles can be linked to internet access and whether this would warrant recognising it as an independent component of the right to life.
Another approach would be to conceptualise the right to internet access as a derived right, within other fundamental rights, similar to the right to health or the right to privacy, for example. Let’s try to understand the nature of derived rights. According to rights theorist Carl Wellman:
“Derived rights may be either more specific forms of some generic right, as the right to freedom of the press is a special case of the right to free speech, or auxiliary rights that serve to protect some primary right, as the right to habeas corpus serves to prevent a violation of the individual’s right to liberty”.
A derived right is a secondary right with all of the protection and limitations of the primary right that it enables. What makes it a secondary right is not its significance or authority, but simply that it is borne out of its connection with a primary right. In this framework, it can be argued that a number of rights guaranteed under Articles 21 and 19 have become entirely intertwined with internet access, and that in the absence of internet access these rights would lose substance and value and citizens will not be able to enjoy these rights.
In Maneka Gandhi vs Union of India, while discussing the test for unenumerated rights within Article 19, the test given by the court was whether the right claimed is an integral part or of the same nature as the named right. Further, these rights need to be ‘in reality and substance nothing but an instance of the exercise of the named fundamental right.
As we have seen earlier, the courts in India have consistently interpreted Article 21 to be a broad right, which comprises numerous unenumerated rights which are located within 21 if they can be seen as an essential part of life. With internet access affecting each and every aspect of an individual’s life, as well as becoming a condition precedent for the application of numerous directive principles related to social and economic welfare, it can be postulated that the right to internet access can be recognised as a human right within the Indian constitutional system.
So, while we can definitely contend that the government of Jammu and Kashmir is wrong in saying that internet access is not a fundamental right, the extent of their error in making that statement can only be realised as the jurisprudence around the right to internet access progresses in India.
Sumeysh Srivastava is a socio-legal researcher and is currently working as a programme manager at Nyaaya, an initiative of the Vidhi Centre for Legal Policy.