Author: Ritika Sharma, Lords University, Alwar
Abstract
The internet has become an essential tool for 21st-century communication, expression, and business. There are debates around the world about whether internet access should be regarded as a fundamental right because of its crucial role in socioeconomic development and democratic participation. This debate grew more heated in India after the Supreme Court’s ruling in Anuradha Bhasin v. Union of India (2020), which acknowledged internet use as protected by Articles 19(1)(a) and 19(1)(g) of the Indian Constitution. This article examines how the judiciary has struck a balance between the need to preserve civil liberties in the digital age and national security concerns, critically evaluates the ramifications of the Anuradha Bhasin ruling, and looks at later case law. Additionally, it suggests a legislative framework to protect internet access as a fundamental right.
Introduction
The internet has changed how people communicate, obtain information, and use their democratic rights in recent years. Internet access is now a need rather than a luxury due to the growing dependence on digital services for governance, healthcare, education, and business. Despite having been written before the advent of digital technology, the Indian Constitution offers a flexible framework that permits rights to change in response to societal and technological advancements. The question that thus emerges is whether internet access qualifies as a fundamental right under the Indian Constitution.
In Anuradha Bhasin v. Union of India (2020), the Supreme Court indirectly addressed this very issue in its ruling. The legality and proportionality of internet shutdowns in Jammu & Kashmir after Article 370 was repealed were at the center of the case, which raised important constitutional issues. Although the Court did not declare internet access to be an absolute fundamental right, it acknowledged that Articles 19(1)(a) and 19(1)(g) protect the freedom of speech, expression, and trade via the internet. Particularly in view of the growing number of internet shutdowns nationwide, this recognition was a significant step forward for Indian constitutional law.
Historical Context: Rise of the Digital Era
Liberalization in the 1990s marked the beginning of India’s path towards digital inclusion, which picked up speed in 2015 with the introduction of the Digital India initiative. The government expanded the role of the internet in daily life by supporting digital platforms for banking, business, education, and public service delivery. When internet access became necessary for remote work, online education, and virtual healthcare during the COVID-19 pandemic, the significance of digital connectivity became even more apparent.
However, the emergence of the internet also brought forth new regulatory issues, especially in the areas of cybersecurity, public order, and disinformation. In response, the state frequently restricted content and shut down the internet. India was the country with the most internet shutdowns between 2016 and 2022, many of which were carried out without adequate legal protections or judicial supervision. These changes raised questions about the abuse of executive authority and the restriction of constitutional liberties.
The Anuradha Bhasin Judgment: Context and Legal Issues
After its special status was revoked on August 5, 2019, Jammu & Kashmir experienced an unprecedented communication blackout, which gave rise to the Anuradha Bhasin case. The government defended the internet service suspension by citing the need to preserve national security and public order. The restrictions, according to petitioners, including journalist Anuradha Bhasin, seriously hindered their ability to practice their profession and infringed upon their right to freedom of speech and expression.
To ascertain the degree to which internet-based liberties are safeguarded by the Indian Constitution, the Supreme Court was asked to consider whether such shutdowns were constitutional. Three main issues were identified by the Court: whether the right to use the internet is covered by Articles 19(1)(a) and 19(1)(g); whether suspension orders can limit such rights; and whether such government orders must be published.
Key Findings of the Supreme Court
The Court’s findings were noteworthy in a number of ways. First, it ruled that Article 19(1)(a) and Article 19(1)(g) protect the freedom of speech and expression, as well as the right to practice any profession or engage in any trade or business online. The Court emphasized that these rights must pass the reasonableness test under Articles 19(2) and 19(6) and cannot be restricted arbitrarily.
Second, the Court used the principle of proportionality, which states that limitations on fundamental rights must be legal, necessary, serve a justifiable purpose, and be the least restrictive option. The legality of internet shutdowns was evaluated using this theory, which was previously developed in Modern Dental College v. State of Madhya Pradesh (2016) and Justice K.S. Puttaswamy v. Union of India (2017).
Thirdly, the Court emphasized how crucial procedural protections are. It decided that all orders pertaining to internet shutdowns had to be made public and reviewed by the courts. In accordance with the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, it also mandated that a Review Committee periodically examine such orders.
Significance and Limitations of the Judgment
A major change in the legal discourse on digital rights was signaled by the Anuradha Bhasin ruling. It acknowledged that the internet is a necessary tool for exercising liberties guaranteed by the constitution. The ruling did not, however, go so far as to declare internet access a separate fundamental right. In later cases, this omission has resulted in inconsistent application and differing interpretations.
Furthermore, even though the Court established the proportionality test and demanded openness, it did not offer precise instructions on how these ideas ought to be applied in real-world situations. Citing lack of sufficient factual material and national security concerns, it also declined to examine the shutdown orders themselves. Executive discretion has frequently prevailed due to this judicial restraint, frequently with no real checks.
Post-Anuradha Bhasin Developments: A Mixed Legacy
Anuradha Bhasin was followed by a number of significant cases, each of which represented a distinct facet of the developing body of legal precedent regarding digital rights.
The petitioners contested the region’s ongoing high-speed internet restrictions in Foundation for Media Professionals v. Union Territory of Jammu and Kashmir (2020). Instead of granting complete restoration, the Supreme Court established a special review committee to look into whether the limitations were necessary. Even though the Court upheld the guidelines established in Anuradha Bhasin, its hesitation to provide relief brought attention to the ongoing conflict between executive discretion and judicial review in national security-related matters.
In contrast, the Kerala High Court adopted a progressive stance in Faheema Shirin R.K. v. State of Kerala (2019), acknowledging the right to internet access as a component of the right to privacy and education guaranteed by Article 21. A student who was expelled from her dorm for using the internet after the allotted hours won her case in court. The recognition of internet access as a facilitator of substantive rights, such as autonomy and education, makes this ruling noteworthy.
In Gaurav Sureshbhai Vyas v. State of Gujarat (2021), the Gujarat High Court affirmed the legitimacy of internet shutdowns during communal unrest, but emphasized that these actions must adhere to the 2017 Rules’ procedural requirements. The Court urged increased responsibility and disapproved of the capricious imposition of limitations.
Global Perspective: Recognition of Internet as a Human Right
International jurisprudence, where the recognition of internet access as a right is gaining traction, can be contrasted with India’s cautious judicial approach. According to a 2016 resolution by the UN Human Rights Council, “the same rights that people have offline must also be protected online.” It also denounced governments’ deliberate interference with internet access. A number of nations, including Finland and Estonia, have proclaimed internet access to be a fundamental human right. In Ahmet Yildirim v. Turkey (2012), the European Court of Human Rights ruled that complete website bans were in violation of Article 10 of the European Convention on Human Rights, which guarantees the right to free speech. These changes demonstrate the increasing international agreement that the internet is essential to guaranteeing both individual liberty and democratic engagement.
Balancing National Security with Civil Liberties
Although the Constitution allows for reasonable limitations on fundamental rights on the basis of national security, this justification cannot be used to disproportionately or arbitrarily restrict civil liberties. As reaffirmed in Anuradha Bhasin, the proportionality test provides a fair framework.
However, it is still difficult to apply consistently. In India, the frequent and careless use of internet shutdowns frequently occurs without judicial oversight or transparency. The protections offered by the 2017 Rules are routinely circumvented by invoking Section 144 of the CrPC. It is challenging for citizens to seek remedies because orders are frequently not published. Such actions weaken the rule of law and erode constitutional protections.
Challenges and Structural Gaps in the Legal Framework
A number of problems still exist in spite of court interventions. Internet shutdowns are not governed by any comprehensive legislative framework. The Telegraph Act’s 2017 Rules offer procedural guidelines but no means of enforcement. Additionally, there is no impartial oversight body to examine shutdowns.
Additionally, unlike the Puttaswamy right to privacy, internet access is not recognized as a separate right. Citizens have no recourse because there is no legally binding precedent regarding compensatory remedies for illegal shutdowns. Rural and marginalized communities are disproportionately affected by the digital divide, which intensifies the effects of shutdowns.
Recommendations for Legal Reform
The actions listed below are advised in order to address these issues:
Legislative Recognition: A law acknowledging internet access as a fundamental right, subject to appropriate limitations, should be passed by Parliament.
Independent Oversight: To make sure that internet shutdowns adhere to the proportionality test, a judicial or quasi-judicial body must be set up to examine and approve them.
Required Transparency: All shutdown orders, together with their justifications and duration, must be promptly published and made available to the public.
Grievance Redressal: Procedures must be established that allow citizens to contest illegal shutdowns and request damages.
Technological Alternatives: To combat particular threats without upsetting entire regions, governments should employ speed throttling, content filtering, or geo-fencing rather than implementing complete shutdowns.
Access to the internet and digital literacy: Policies must be created to close the digital divide and guarantee fair internet access for all areas and populations.
Conclusion
An important step in bringing India’s constitutional jurisprudence into line with the realities of the digital age was the Anuradha Bhasin ruling, which recognized freedoms based on the internet. The Supreme Court categorically acknowledged that the freedom to express oneself and conduct business online is protected by the constitution, even though it refrained from establishing internet access as a stand-alone fundamental right.
It Is crucial to make sure that internet access is regarded as a right that supports the values of democracy, equality, and liberty rather than as a privilege in a nation that wants to become a digital superpower. To protect this right from capricious state action and guarantee that the internet continues to be a platform for social inclusion, economic opportunity, and free speech, a strong institutional and legal framework is required.
FAQS
Does the Indian Constitution guarantee everyone access to the internet?
In Anuradha Bhasin v. Union of India (2020), the Supreme Court ruled that internet use is protected under Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (freedom to practice any profession), even though the Indian Constitution does not specifically mention internet access as a fundamental right. Consequently, internet access is regarded as necessary for exercising other fundamental rights, even though it is not acknowledged as a separate right.
What legal protections are there in India against capricious internet shutdowns?
The Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, which were created in accordance with the Telegraph Act, 1885, regulate the legality of internet shutdowns in India. In the Anuradha Bhasin case, the Supreme Court held that these shutdowns had to be appropriate, necessary, and compliant with due process. Orders are subject to periodic review by a Review Committee and must be published.
What actions can be taken to guarantee internet access in India that is both fair and protected by the constitution?
Legal reforms, such as statutory recognition of internet access as a fundamental right, the creation of an independent oversight body for shutdown orders, required transparency, and the creation of grievance redressal procedures, are required to safeguard internet access as a right. Equitable access also depends on closing the digital divide through digital literacy initiatives and infrastructure.
