Updated: Aug 14, 2020
With the Internet being termed as a “fundamental utility, essential for free expression and healthy democracy”, it has started to gain possible recognition as a basic human right in various countries across the world. In times of global pandemic such as COVID-19, the world has seen the internet to be emerging as a lifeline for people to function and sustain a livelihood. Being one of the most powerful sources of enlightenment for people across the globe, the Internet is now starting to get recognized as part of the basic infrastructure of a country. The dependency on Internet has increased manifolds in the current times, hence making it all the more essential to be recognised as a basic human right, enabling individuals to access other rights such as the right to livelihood, right to the occupation, and right to freedom of speech and expression, etc. In this context, it becomes extremely pertinent to analyse the government imposed digital and communication lockdown in Jammu and Kashmir as we witness the first anniversary of the controversial Constitution (Application to Jammu and Kashmir) Order, 2019 which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 under Article 370 of the Indian Constitution.
Overview of the Ban Imposed
Following the imposition of Constitution (Application to Jammu and Kashmir) Order, 2019 after the revocation of Article 370 of the Constitution, the Government of India has imposed Internet blockage in the valley since August 2019. Various petitions were filed before the Supreme Court which stated that the internet shutdown was an arbitrary and unreasonable restriction towards the fundamental rights to information, education, and free speech: protected by the Constitution. Multiple rounds of litigation before the Apex Court of the country saw various arguments being advanced which emphasised that the “right to access the internet is a fundamental human right under the right to education and the right to privacy under Article 21 of the Constitution. Suspension and shutdown of the Internet and communication services is an infringement of the freedom and rights guaranteed and safeguarded under Articles 19 and 21.” Hence it is argued that restricting facilities like the Internet which acts as a powerful enabler of other human rights and freedoms recognized in the Universal Declaration of Human Rights (UDHR), such as access to education (Art. 26 UDHR), expressing ideas (freedom of expression, Art. 19 UDHR) and connecting and associating with others (freedom of association and peaceful assembly, Art. 20 UDHR) tend to be directly violated by such state actions.
Direct Contravention of exercise of Basic Human Rights
The petitions brought against the State condemned the Internet shutdown, claiming that it had brought the functioning of the State and its people to a grinding halt. A plethora of arguments were advanced by reporters, media personnel, students, MLAs, doctors, healthcare staff, etc. alleging that providing a carte blanche to the State, allows for the imposition of broad and unreasonable restrictions on fundamental human rights of its citizens. As the Internet has become a platform to access other fundamental rights conferred by the Constitution of India, deprivation of the same stands in direct violation of the basic human rights.
Multiple petitions have been brought to court, arguing that the unreasonable act of internet shutdown has brought various professions to a grinding halt. Eminent journalists too have argued that Internet being an essential feature for the modern-day press, its shutdown had made the profession of journalism come to a halt as they are unable to publish newspapers since the imposition of the ban.
Similar petitions were brought by people with internet-based professions highlighting how in recent years, growing technology and the user-friendliness of the Internet has increased dependency upon it magnanimously. With the advent of the ‘Digital India’ initiative by the government, each sector saw a shift towards internet dependency and the same has now smoothly ventured into the everyday lives of businesses. In the backdrop of such a changed scenario, it is pertinent to note that any restriction upon the internet can be a direct infringement of the right to trade and profession of an individual. The Digital India campaign has come crashing down in Kashmir, as several internet service providers were raided and even rounded up in Srinagar to enforce the strict clampdown. Even the mobile services and related internet facilities had been suspended. Being encapsulated in cyberspace, these restrictions on the use of the Internet had potentially brought life to a standstill by hindering basic activities.
Testing times in Case of a Global Pandemic
The administrative authorities in Jammu and Kashmir decided to lift the ban and provide access to 2G internet services in the valley towards the end of January 2020 on the direction of the Supreme Court. This move was still a Hobson’s choice and highly problematic, especially when the country was moving towards a pandemic situation due to the COVID-19, wherein healthcare workers relied on internet services for the latest guidelines regarding the situation. Various health workers, medical practitioners, and doctors emphasized the need for 4G service to be restored in the valley as the 2G speed connectivity wasted precious time trying to download the latest advisories, manuals, protocols, and studies issued on the disease. In some cases, doctors even failed to access any online resources at all due to poor connectivity and speed. These factors make the situation in the State of Jammu and Kashmir further grim as the availability of such resources is of prime importance especially when the country is battling with a pandemic.
On similar lines of difficulty, as the education system has also shifted to an online platform due to the pandemic, children in the state are being denied facility to attend online classes due to the unavailability of proper Internet services. This directly contravenes the basic human right to education as a multitude of kids are unable to continue with their education due to lack of resources in such troubled times.
Recognition of Access to the Internet as a Basic Human Right
Methods of controlling the actions of its citizens have been highly frowned upon by the United Nations Human Rights Council. It has time and again stated the significance of recognising and observing Article 19 of UDHR by the nation which protects freedom of expression through any media. Various international human rights institutes along with the UN also discourage restrictive laws such as Internet ban and other abusive laws that target the basic human rights of its citizens.
The United Nations Human Rights Council in 2016, gave a global recognition to the Internet as being a Human right. While Article 19 of the Universal Declaration of Human Rights (UDHR) does protect freedom of expression through online mediums, bypassing a specific resolution for “promotion, protection, and enjoyment of human rights on the internet” the UN aimed to condemn the action of countries that intentionally disrupt the internet access of its citizens. Through the resolution, the right of those whose work relies on Internet access was also realised.
While the Apex Court in India maintained silence on whether the right to access the internet is a fundamental right, it upheld that the rights under Art. 19(1)(a) and Art. 19(1)(g) using the medium of the internet are constitutionally protected. , However, it is pertinent to highlight that the UNHRC Resolution has been previously observed by various courts in India. For instance, in September 2019, the Kerala high court while deciding in the case of Faheema Shirin R.K. v. State of Kerala  held the right to access the internet to be a facet of fundamental human right by relying on the same resolution of Human Rights Council. With the lower courts taking a step forward in recognising the right to access the internet as a fundamental right, there is a need for the Supreme Court to concretise the same.
While it can be argued that UN resolution stands as a ‘soft law’ hence lacking enforcement mechanism in countries all over the world, it is important to note that “international conventions and norms are to be read into the fundamental rights guaranteed in the Constitution of India in the absence of enacted domestic law occupying the fields when there is no inconsistency between them.”, Article 19 of UDHR too, clearly makes a case for an interpretation that recognises Internet as a Human Right by a borrowed interpretation of the UN resolution in this regard. It is time that India recognises the increased importance of the Internet and its access as an important aspect of sustenance especially in changing times as such and refrains from depriving its citizens of such basic human entitlements.
 Foundation for Media Professionals v. Union Territory of Jammu and Kashmir, Writ Petition (Civil) No. 10817 of 2020.  Faheema Shirin R.K. v State of Kerala, AIR 2020 Ker 35.  Vishakha v. State of Rajasthan, AIR 1997 SC 3011.
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Roshni Mulchandani is a Fourth Year Law student at NALSAR University of Law, Hyderabad. With a keen interest in Mediation and Negotiation, she has been active in the Mediation competitions circuit across law schools and has also won many accolades for the same. She has also been an avid writer on various Socio-Legal themes in India such as Marital Rape, Data Privacy laws in India and the Evidentiary value of DNA, etc. to name a few. She has also been a part of IDIA-Hyderabad chapter for almost 2 years and volunteered to mentor and educate underprivileged kids in India.