Author: Nandini Sharma, Student at UILS, Punjab University, Chandigarh.
Beginning with an introduction to what are fundamental rights? Fundamental rights are the rights given to the individual by the constitution for their development against the state action.The rights are called fundamental rights because they are essential and intrinsic. They are the cornerstone of the constitution. The main reason behind the inclusion of the fundamental rights in the constitution is to establish a ‘government of law, and not of a man’ .Though in a democratic country like India , judicial review power conferred upon the Supreme court and High court ensures that the fundamental rights of an individual is not violated. Under article 32 and article 226, the Supreme Court and high court, respectively, issue writs and through which it enforces the fundamental rights of an individual.
AN EXTENSIVE ELECTRONIC NETWORK
In today’s world other than roti, kapda aur makaan internet is the fourth essential for living. During 2020 lockdown, we have realized the importance of internet in our lives. From buying groceries to watching films everything was accessible through internet at our home. Internet is used for accessing the education online and sources available from all over the world are just one click away. It’s been an essential mode of expressing views and ideas. Through internet, expressing views have become so easy that people even from remote areas are able to express their views without any difficulty, provided internet connection is not fractured. Besides internet being so advantageous and its importance in our present life, there are instances of internet being misused for the spread of fake news which makes the situations like protests and terrorism, worse. Which further creates a need for an internet shutdown.
Let us see how various countries have witnessed ban on this internet in the previous few years. Hong Kong previous year witnessed a huge protest in which a large number of youth participated and in order to curb the protesters and to keep a check on the spread of fake news internet was shutdown .Countries like Myanmar, Iran, Vietnam, Russia, etc. Including thirteen countries have imposed harsh measures on people inclusive of an internet shutdown. According to studies and reports on internet shutdown it has been found that India has saw 106 shutdowns in 2019 and 134 in 2018 .But it is not always the government of a state which imposes internet shutdown. Latest news reports shows that how military disrupted the internet in the Myanmar. Basically it is the decision making institution of the state which take such decision.
INDIA IN FOCUS
India’s heaven on Earth, Jammu n Kashmir was under lockdown since august 2019 even before corona entered our lives. Besides lockdown valley witnessed internet shutdown after the President’s ruling. The information act, 2000, section144 of Criminal Procedure Code (CrPC) and The Telegraph Act, 1885 are the three laws through which internet shutdown had taken place in the country. Internet shutdown slowed down the speed of life in the valley. It disrupted the local businesses of people. Women were the ones who were affected at the most, because there were several women in the valley who with the help of internet carried out their businesses both at the local and the global level. Children were forced to attend school online. The list of such problems faced by the people of the state is endless.
FUNDAMENTAL RIGHT OR NOT?
Apart from the consequences of internet shutdown the question arises is that whether people’s access to internet is their fundamental right or not? However, lack of internet access seems to undermine the enabling provisions of section 19 of the constitution. Taking Jammu and Kashmir in focus, 5.8.19 is the date when certain restrictions were imposed on the people of valley. The framers of the constitution of India after series of debates and deliberations have provided us with these fundamental rights to help every citizen of the country to travel the road leading to freedom. Due to internet shutdown people of Jammu and Kashmir could not enjoy the rights provided under article 19 i.e. freedom of speech and expression [art.19(a)] , to move freely throughout the territory of India [art.19(d)] and to practice any profession, or to carry any occupation, trade or business[art.19(g)]. There were several petitions filed making the government of India answerable to the petitioner, recent one being the case of Anuradha Bhasin v Union Of India. However, hon. Supreme Court of India has ordered in a recent judgement batch of petitions filed challenging the curbs imposed in Jammu and Kashmir, that access to internet is a fundamental right under article 19 of the Indian constitution. Even Kerela High court in a recent decision held that right to internet access is a fundamental right. The Judgement was delivered when a student of kerela filed a petition against the hostel rules banning the use of mobile phones from 6:00pm to 10:00 pm. Even in the case of Anuradha Bhasin v Union of India, Supreme Court has very well pointed out in its judgement the importance of ‘balance of interests ‘.However the court did not speak upon the internet being fundamental right but the reasoning given to explain the illegality of internet shutdown for the time beyond the apprehension is remarkable.
Let’s not indulge in the political question but make it a question more of ensuring people of their right, to live freely. Citizen’s hard-won rights and freedoms is something that should not be taken for granted. However, government’s reasoning to certain restriction is always the internal security and protection of people of the country. Such reasoning to some extent is justified as well provided the measures are temporary. But it is the Law of nature that excess of anything is bad that do include keeping people under restriction for a longer period of time. It is the duty of the Government to ensure that such measures are just temporary. During internet shutdown which further puts certain restrictions in the daily lives of the people, it is necessary on the part of government to provide all the basic amenities to the people such as access to healthcare facilities, education, making banking facilities available to the people. While maintaining security of the nation, rights of people of the country should not be infringed. Thus, the question of whether access to internet is a fundamental right or not could be well decided by hon. Supreme Court of India and the discretion of court is required on to what extent the internet shutdown is justifiable. The requirement is to constitutionally protect the fundamental rights of the people and to ensure them a peaceful and a safe living. Internet suspension in a state is justified until the apprehension of civil unrest and violence still exists. A sensible decision is required from the courts so that the people continue to look up to the Indian judiciary. The need is that whenever a situation similar to that of Jammu n Kashmir arises, it is the duty of the three pillars of democracy that is Legislature, Judiciary and Executive to scrutinize the matter.