Constitution of India

Internet is a fundamental right, says the Supreme Court of India

In a significant judgment today, the Supreme Court of India has declared that the right to the internet is also part of freedom of speech and expression.

Freedom of speech and expression through the medium of internet is a fundamental right under Article 19(1)(a) of the Constitution.

Freedom of trade and commerce through internet is also a constitutionally protected right under Article 19(1)(g).

The Court observed that an indefinite suspension of the internet is a violation of telecom rules and the test of proportionality needs to be satisfied. This freedom can only be restricted after relevant factors are considered and only if there are no options. The judgment also states that authorities cannot use Section 144 Cr.P.C. to shut down the internet.

A positive takeaway from the judgment is that an internet shutdown cannot be for an indefinite period and the suspension is subject to judicial review.

The uncomfortable part is that while the Supreme Court says that the internet shutdown in Kashmir is a violation of freedom, the ban continues.

Today is the 159th day of what is the longest internet shutdown in history. It was imposed on August 4, 2019, following the revocation of the special status of Jammu & Kashmir under Article 370 of the Constitution of India. The restrictions have paralyzed the lives and businesses of 7 million people.

We are still not sure when the restrictions in Kashmir will be lifted. The Court has directed a review committee to assess and respond in a week but the Government has its forever ‘national security’ trump card to (ab)use in some manner. The Supreme Court judgment did state that the idea is to find a balance regarding the security and liberty of people.

Essentially, the judgment is more academic but doesn’t really uphold what it preaches.

The recognition of the right to internet access as a fundamental right and declaring that indefinite shutdowns are not permissible are the silver linings that, hopefully, will enable High Courts to uphold citizen liberty and rights going forward.

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