Fundamental Rights and Internet Access: A Case Study of India's Constitutional Remedies, Schemes and Mind Maps of Political studies

Download Fundamental Rights and Internet Access: A Case Study of India's Constitutional Remedies and more Schemes and Mind Maps Political studies in PDF only on Docsity! 1. Introduction 1.1.Meaning of the Term ‘Internet’ The term ‘Internet’ refers to any set of computer networks that communicate using the Internet Protocol. It is the specific internet consisting of a global network of computers that communicate using Internet Protocol and that use Border Gateway Protocol (BGP) to identify the best paths to route those communications. It connects millions of web servers and helps in better communication. 1.2.Introduction to Fundamental Rights Article 12 to 35 of the Constitution of India talks about Fundamental Rights. These rights find their place in Part 3 of the Indian Constitution. These rights were enacted to protect the people from the repressive and domineering government. If any fundamental right is violated by the government or by any individual, the person whose right has been violated can go to the Court of law and ask for justice. Fundamental rights are a group of rights that have been recognised by a high degree of protection from encroachment. These rights are specifically identified in a Constitution or have been found under due process of law. Fundamental rights are namely, Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights, and, Right to Constitutional Remedies. Background of the access to the Internet and then declaring it as a Fundamental Right As per the statistics report, 60% of the World Population does not have any right to the internet. If the least developed nations are taken into consideration, then out of 10 individuals only a single person has access to the internet. Moreover, many countries restrict the content to be viewed by their citizens on the internet. In today’s world, no development is possible without digitalisation. Thus, in 2016 after taking into consideration access to the internet and the suppressive tactics of the government, UNHRC (United Nations Human Right Council) stated that Right to the Intenet should be made a fundamental right. 2. Right to the Internet in India In the past 10 years, there were approximately 400 shutdowns of the internet in India. The recent report states that on 4th August 2019, when the Parliament of India revoked Article 370 of the Constitution of India. This revocation led to the division of State of Jammu Kashmir into two Union Territories namely, Ladakh and Jammu & Kashmir. Along with this decision, Section 144 of The Code of Criminal Procedure was also imposed in Jammu & Kashmir for security reasons which prohibit the assembly of more than four people. Moreover, the internet was shut down in Jammu & Kashmir which was the longest shutdown of the internet in the history of India. The internet services were restored after 213 days on 4th March 2020. From 4th August 2019 to 4th March 2020, the internet was shut down in Jammu & Kashmir. Between these dates, there were three landmark judgements which led to the Right of the Internet. 2.1. Faheema Shirin R.K. vs. State of Kerala, In this case, Faheema Shirin is a college student who states that the girls’ hostel in which she stays lays down a rule that there shall be no use of mobile phones from 6 pm to 10 am in the hostel premises. To oppose such restriction she filed a case in the High Court of Kerala. Justice P.V. Aasha was the judge deciding on this matter. The Court gave its decision by taking into consideration the learning process, and development of the students. It was held, Right to Access the Internet is a fundamental right and is protected under Article 21 of the Constitution of India which talks about Right to Privacy and also the Right to Education. 2.2.Anuradha Bhasin vs. Union of India, This case was filed on 10th January 2020 and challenged the ban on the internet in Jammu & Kasmir from 4th August 2019. The petitioner further stated that restriction on physical movement along with online communication violates Article 19 of the Constitution of India. Right to the Internet is a part of Article 19(1A) of the Constitution of India. It was held by the Supreme Court that due to immediate threat or security concern a temporary ban on services of the internet is permissible but banning of the internet for an indefinite time is not correct. The balance between national security and human rights should be maintained. After this judgement was delivered then the low speed of 2G internet was allowed in Jammu & Kashmir. Facts – In this case, an organization named Foundation For Media Professionals approached the Court asking for the resumption of the 4G services in the union territory. The government had initially banned the internet services completely and now it had just resumed the 2G services. The petitioners contended before the Court that the above decision was going against the landmark judgment of Anuradha Bhasin. Further, the petitioners submitted that as all the work is being done online, the impugned orders of the government are hampering the day to day work of the residents. They also argued that since the situation was conducive for resuming 4G services, they should be resumed. Also, if later, the government finds that national security is being threatened, it can resume with the restrictive services in those vulnerable areas. Judgment- The Court took cognisance of the circumstances and held that 4G internet was the need of the hour. But on the other side, it also held that national security is of utmost importance and cannot be compromised with (upholding the Anuradha Bhasin judgment). The Court also took cognisance of the fact that 4G services can be resumed in the territory with restrictions in certain areas. Therefore, it ordered the government to constitute a committee to examine the whole situation and consider the advice of the petitioners. 4.case • Faheema Shirin R.K v. State of Kerala Though this case was not completely about the shutdown of the internet at a large scale, it gave us insight into unreasonable restrictions on the usage of phones and the internet and the violation of Article 19 of the Indian Constitution. Dated – 19 September 2019 Bench – Justice P.V Asha Facts – This case is regarding the restrictions on usage of the Internet in the hostel premises. An 18-year- old girl residing in a government hostel was aggrieved by her expulsion from the hostel. The hostel rules said that the hostel girls would not be allowed to use their mobile phones and internet from 10 PM in the night to 6 AM in the morning. Aggrieved by such orders, the girl approached the authorities. Instead of solving her problem, she was asked to vacate the premises. Aggrieved by such orders, the petitioner approached the Hon’ble High Court. Judgment – It was held that such restrictions were unreasonable and not necessary for maintaining discipline. The Court said that one should also see the positive aspects of the internet and mobile phone and not only the negative ones. FREEDOM OF SPEECH AND EXPRESSION, RIGHT TO EDUCATION AND PRIVACY UNDER ARTICLE 19 AND 21 OF THE CONSTITUTION OF INDIA 3. FREEDOM OF SPEECH AND EXPRESSION, RIGHT TO EDUCATION AND PRIVACY UNDER ARTICLE 19 AND 21 OF THE CONSTITUTION OF INDIA Every citizen of India Has freedom of speech and expression. It means the right to express one’s own convictions and opinions freely by words of mouth, writing, printing, pictures, or any other mode. It includes the expression of own’s ideas by any communicable media or visible representation (E.g.: Signs, gestures, etc.). The freedoms guaranteed under Article 19(1) are available to citizens only and not to a foreigner or an alien enemy. The term ‘citizen’ under Article 19 means a Natural Person but not a legal person like a company or corporation. Freedom of Opinion and Expression states that Internet Access is co-relates to this article of the constitution. Every citizen of India has freedom of opinion and expression. Citizens of India can express their own thoughts freely without any hesitation. Businesses, Education, Online Markets as well as the corporate sector are landed on the Internet during Pandemic Days. Article 21 A of the constitution of India deals with the Right to Education is the fundamental right of every citizen of India. Children of India have the right to education till the age of 14 years. Under this Article of the constitution of India, every child of India has the right to attain compulsory education till the age of 14 years. In the Interest of Education and employment, Internet access is essential for empowerment. Article 21 of the constitution deals with the Right to Personal liberty but the Right to Privacy includes under Article 21 of the constitution of India. Right to Privacy deals with Right to Internet Access. If the internet access links with education and uses in businesses, Trade, personal enhancement then it is dealing with the personal liberty of human beings. In this period of the pandemic, Internet access is essential for achieve advanced educational goals in life. Online classes and webinars of students are dependent on the Internet. Good Internet access and Information diffusion are leads to empowerment of human being. Article 19 (1) of the constitution of India deals with the speech and expression of India. Speech and expression through Internet are new generations Information diffusion landed over the Informative World. United Nations General Assembly concludes that in the month of November 2015, the Right to the Internet is an essential fundamental right of every citizen in the world. Internet access is essential for the advancement of education and personal needs fulfillment in life. In August 2012, Internet Society did a survey, regarding Users of the Internet in the World. Then 40 % of the Population opined that Internet Access is the essential fundamental right of every human being in this world. Because It empowers development and Information Diffusion. Article 13 of the International Covenant on Civil and Political Rights declared that “Right to Internet Access is essential fundamental Right as Similar to Right to Education” freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” Nowadays, unlike traditional media, the internet allows people to seek, receive and impart information rapidly and at an extremely low cost. In 2016, a report from the Human Rights Council of the United Nations General Assembly declared access to the internet to be a basic human right. United Nations General Assembly states that the Right to development is third generation human right in developing countries. Recognition of the close relationship between the right to Internet Access and basic human right by international laws. 3.2. 21 of Constitution of India: Protection of Life and Personal Liberty Article 21 states that “No person shall be deprived of his life or personal liberty except according to a procedure established by law.” Thus, article 21 secures two rights:  Right to life, and  2) Right to personal liberty. The Government of India Act, 1935 provided for the establishment of Article 21 of the Indian Constitution. It declares that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article action and not from arbitrary legislative action. This means that the state can deprive a person of the rights available in Article 21 based on a law.   Maneka Gandhi vs. UOI, 1978: In this case, the SC overruled its judgment of the Gopalan Case by taking a wider interpretation of Article 21. It ruled that the right to life and personal liberty of a person can be deprived by law on the condition that the procedure prescribed by that law is reasonable, fair, and just. Further, it clarified that the right to life does not merely mean animal existence. It held that all those aspects of life which go to make a man’s life meaningful, complete, and worth living will be included in this.  4. Article 19: Protection of certain rights regarding freedom of speech, etc Article 19 is the most important and key article which embodies the “basic freedoms”. Article 19(1) provides that all citizens shall have the right- (originally 7, now 6)  to freedom of speech and expression;  to assemble peaceably and without arms;  to form associations or unions;  to move freely throughout the territory of India;  to reside and settle in any part of the territory of India;  omitted by 44thamendment act. (it was right to acquire, hold and dispose of property)  to practice any profession, or to carry on any occupation, trade or business. However, Freedom of speech and expression is not absolute. As of now, there are 8 restrictions on the freedom of speech and expression. These are in respect of the sovereignty and integrity of the country. These 8 restrictions were:  Security of the state  Friendly relations with foreign states  Public Order  Decency or morality  Contempt of Court  Defamation  Incitement to offence  Sovereignty and integrity of India. These 8 restrictions were embodied in their current form in the constitution First Amendment Bill 1951, this was necessitated by Romesh Thapar v. State of Madras (1950). In this case the entry and circulation of the English journal “Cross Road”, printed and published in Bombay, was banned by the Government of Madras. The Supreme court held in this case that, unless a law restricting the freedom of speech and expression were directed solely against the undermining of the security of the state or its overthrow, the law could not be held a reasonable restriction though it sought to impose a restraint for the maintenance of public order. 1. When a proclamation of emergency is made under article 352, article 19 itself remains suspended. 4.1 Freedom of Speech and Expression 1. Article 19 of the constitution provides freedom of speech which is the right to express one’s opinion freely without any fear through oral / written / electronic/ broadcasting / press. 2. The Constitution does not make any special / specific reference to the Freedom of Press. The protagonists of the “free Press” called it a serious lapse of the Drafting committee. However, the freedom of expression includes freedom of press. Dr. Ambedkar in this context had said on speaking behalf of the Drafting Committee that the press had no special rights which are not to be given to an individual or a citizen. Dr. Ambedkar further said that the “editors or managers of press are all citizens of the country and when they chose to write in newspapers they are merely expressing their right of expression”. 3. So, the word expression covers the Press. In modern times it covers the blogs and websites too. Some landmark Supreme Court Judgments regarding the Freedom of Expression Romesh Thapar v. State of Madras, (1950): Freedom of speech and of the press laid at the foundation of all democratic organizations, for without free political discussion no public education, so essential for the proper functioning of the process of popular government, is possible.” Maneka Gandhi v. Union of India, (1978):Freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also. Prabha Dutt v. Union of India ((1982) :Supreme Court directed the Superintendent of Tihar Jail to allow representatives of a few newspapers to interview Ranga and Billa, the death sentence convicts, as they wanted to be interviewed. Indian Express v. Union of India (1985):Press plays a very significant role in the democratic machinery. The courts have duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. Conclusion Internet Access is essential in our daily life because it is the source of Information diffusion and plays a vital role in the development of our life. The golden triangle of the constitution of India includes the Right to life and personal liberty, the Right to Freedom of speech and expression, and the Right to Equality before the law under