The access to internet being a fundamental right :Supreme Court

According to #KeepItOn coalition, a global movement of over 150 organisations across 60 countries working together to fight internet shutdowns, India was responsible for 67 per cent of the world’s documented shutdowns in 2018. Most of these were reported from Jammu and Kashmir, Rajasthan, Uttar Pradesh, and Maharashtra. Since 2014, there have been 370 shutdowns ordered by the Centre and various State governments, of which nearly 100 shutdowns were reported in 2019 alone, according to internetshutdown.in

We live in an age where administrative authorities have been empowered to exercise discretionary powers, the position holders in the administration exercise wide discretionary powers and these powers cannot be used arbitrarily, therefore to keep a check on them, the doctrine of proportionality is used?

What is Doctrine of Proportionality?

Proportionality’ is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision.”

Doctrine of proportionality is a principle that is prominently used as a ground for judicial review in cases of administrative action.

The doctrine was developed in Europe and it is a vital part of the European administrative law. 

The doctrine essentially signifies that the punishment should not be disproportionate to the offence committed or the means that are used by administration to obtain a particular objective or result should not me more restrictive than that are required to achieve it. 

The doctrine of proportionality is being used in cases where administration restricts fundamental rights through its actions, in these cases the court sees if the measure taken by the body are the least restrictive means to achieve the purpose if they are not then the restriction imposed will be quashed by using this doctrine. 

In India the doctrine of proportionality was adopted by the Supreme Court of India in the case of Om Kumar v. Union of India.

 In  this case the Apex court observed that Indian courts have been using this doctrine since 1950, in cases of legislations violating fundamental rights enshrined in Article 19(1) of the constitution.

The doctrine of proportionality is applied to check the validity of such restrictions. In Om Kumar v. Union of India. the Supreme Court observed that restriction on Fundamental freedom have always been checked on the “anvil of proportionality”. 

Quoting eminent constitutional jurist Kai Moller, who had said that : Proportionality principle was the doctrine tool which guided judges through the process of resolving conflicts 

Why it is in news?

The Supreme Court of India delivered on January 10, on the ongoing communications blockade in the Kashmir Valley. the judgment, in Anuradha Bhasin v. Union of India, reads like a majestic charter of liberties.

Why state made restrictions? 

The State can make laws for imposing res­trictions on the right to freedom of speech in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to offence.For instance :Government in case Article 370 and 35A has curtained internet. 

Section 144 of the CrPC authorises executive magistrates to take preventive steps for the prevention of breach of peace. These include ban on assembly of more than four persons, ban on processions, use of water cannon and even curfew and shoot-at-sight orders. It has to be seen whether such orders affect freedom of speech

Argument :

The right to freedom of speech and expression, contained in Article 19(1)(a) of the Constitution, the Bench held, implicitly also includes a mandate to a right to Information. 

The access to internet being a fundamental right, it is a path-breaking decision as internet is a means of getting information. 

Judgement Oberservation:

0)Stating that accessing the Internet was part of freedom of speech and expression and an integral part of Article 19 (1)(A) of the Constitution.

1)the Court drew a facile distinction between the Internet as a “tool” on the one hand, and the expression of free speech through the means of the Internet on the other. 

2) The right to freedom of speech and expression includes within its ambit the freedom to disseminate and receive information through any means possible, including through the Internet. 

3)the Court also recognised that the Internet today is critical to the conduct of commerce. Therefore, any restriction on the web will necessarily impinge on the right under Article 19(1)(g), “to carry on any occupation, trade or business”.

4)The court went on to say that fundamental rights such as freedom of speech should also meet the test of proportionality. 

Supreme Court Judgement on internet shutdown? 

There are three concepts that the judgement brings out very clearly. 

First is the value of liberty, which is so important and not negotiable. It cannot be put in peril.

 The second is the importance of knowing things or having access to information and how in today’s world, the internet is such an important means of getting information. The access to internet being a fundamental right, I think is a path-breaking decision because the internet is only a means of accessing information.

The third part, of which I have seen some echoes in earlier celebrated judgements of the 1980s is a judgement that has a slightly different connotation, although on the same subject, which is on the exercise of statutory powers such as Section 144.

What according to you will it take to make it a fundamental right?

It is an incipient right of human dignity and equality before the law. This right will also play out like any other fundamental right, subject to reasonable restrictions. What restrictions will be reasonable are mentioned in the Justice Nariman’s judgement in Shreya Singhal case, which was a major decision where he says a free marketplace of ideas is so important for society. It is also somewhere echoed in this judgement.(opinion of senior judge of supreme court).