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Constitutional Position of Right to Access to Internet as Fundamental Right

Internet today has become an indispensable part of the humankind. It can rightly be said that internet is a catalyst in the process of imparting, receiving, and sending information. Therefore, the necessity for having internet connectivity cannot be compromised. The Hon’ble Kerala High Court has recently passed a judgement in the case of Faheema Shirin & Anr v State of Kerala & Ors. , in which it has stated that the Right to access to internet is a fundamental right. This judgement has brought in the focus on the current situation of the people in the Union Territory of Jammu and Kashmir (earlier the State of Jammu and Kashmir). After the passing of the J&K Reorganisation Bill, 2019 in the Indian Parliament there has been a complete lockdown by the government, section 144 has been imposed and communication lines have been completely cutoff. This has led to huge outrage amongst majority of the people, citing violation of basic Human and Fundamental rights of the people of Jammu and Kashmir. One of the basic rights which has been highlighted is right to access to the internet.

This matter was taken to the Supreme Court by political activist Tehseen Poonawalla, who had filed a writ petition, wherein he pleaded that immediate directions for withdrawing “curfew/restrictions" and other measures, including blocking of phone lines, internet and news channels. The bench headed by Justice Arun Mishra refused to entertain the writ petition highlighting the fact that the situation in Jammu and Kashmir was very critical and sensitive, therefore the Hon’ble Supreme Court gave 2 weeks, which was a ‘reasonable’ time period for restoring Jammu and Kashmir to normalcy.

What needs to be understood here, is the extent of applicability of the judgement passed by the Kerala High Court to Jammu and Kashmir, considering peculiar situation thereof. In the case of Faheema Shirin & Anr v State of Kerala & Ors., The petitioner, a student of Sree Narayana College, Chelanur, Kozhikode, was expelled from the college’s hostel as she was not adhering to the restrictions on the use of mobile phones from 6 PM to 10 PM every day. Due to which she approached the High Court for protesting the unreasonable restriction on her learning process and depriving the students of the college the access to information on internet. Whereas, if we see the situation in Jammu and Kashmir, after the revocation of the special status under article 370 of the Indian Constitution, there was a fear of massive protests and a situation of instability and chaos, which could have hampered the security and life of the people. Due to which the communication channels like the internet had been shut down.

One must look into the aspect of what is to be considered as a reasonable restriction. We need to take a look whether there is a possibility of having a uniform test for determining the extent of reasonable restriction. It has been stated by former Chief Justice of India(CJI), M. Patanjali Sastri, in the case of State Of Madras vs V.G. Row, that “test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of' the restrictions, considered them to be reasonable.” In other words, nature of the right violated, purpose behind such imposition of restriction, the urgency and extent to which such restriction has been imposed, all these factors must be given due regard, before passing of a judicial verdict.

The right to access to internet has also been highlighted internationally. Sudan’s Transitional Military Council, which at the time was the de-facto ruler of the country, had ordered the internet blackout because of security concerns, but later it was found out that it was trying to stop the circulation of the footages of the Khartoum Massacre. Therefore, the interim Apex Court ordered the restoration of internet stating that right to access internet is a fundamental right.

There are many international forums which state about providing of access to internet as a fundamental right. Like the Human Rights Council, adopted the resolution 23/2 , which provides for equal participation in, access to and use of information and communications technology, such as the Internet. Further the United Nation General Assembly in its resolution 26/13, “all States to promote and facilitate access to the Internet and international cooperation in the development of media and information and communication facilities and technologies in all countries”. Therefore, it can be observed that access to internet has become an integral part of human rights issue internationally.

But if we look at the two cases of J&K and Faheema Shirin, we need to follow the judgement given by Former CJI M. Patanjali Shastri in case of State of Madras v V.G.Row . It has been observed that the Jammu and Kashmir has always been a victim of terrorism and violence. Further, after the revocation of article 370, there was a huge possibility of spreading fake messages or images content through social media platforms. There was also a possibility of mass scale attack planned by perpetrators using social media platform. The situation was threat to national security. Therefore, looking at the gravity of the situation, the government had taken such decision. Whereas, in Faheema Shirin case, the internet access was granted for using it as a tool for exercising right to education. Therefore, the judgement of Kerala High Court cannot be used as a precedent in Jammu and Kashmir’s case.

In the end, it can be said that in tussle between the interests of national security and fundamental right to access to internet, due importance must be given to the current situation, the motive behind such decision and the impact in the future.

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