FREEDOM OF SPEECH AND EXPRESSION IN THE MEDIUM OF INTERNET AS A FUNDAMENTAL RIGHT

Updated: Sep 7, 2020

By Ms. Madhumitha. N


1.Introduction:

Right to freedom is one of the Fundamental Right which is granted by the Constitution of India to every citizen of the country. The liberty granted under the Constitution is not absolute and is subject to reasonable restrictions provided by the Constitution of India. Therefore, every citizen has the freedom to exercise his right to the extent which the Constitution of India permits.

Article 19 of the Constitution of India grants the right to freedom of speech and expression.[i] Article 19 is one of the rights of the golden triangles of the Constitution along with Article 14 and 21. The Supreme Court and High Courts of India at various instances had made sure that these fundamental rights are guaranteed and have expanded the scope of the Articles.

With the advent of technology, and the access of internet in the hands of every person, it had become an implied right of every person to access the internet for various purposes. Internet had become a part of human life through smartphones, laptops and other electronic devices that it has also become one of the basic essentials of life apart from food, cloth and shelter. The Supreme Court was approached as to whether internet is a Fundamental Right of every citizen under Article 19 of the Constitution. This article will discuss as to why such issue came before the Supreme Court and what decision held by the Court in the case.

2.Historical Perspective:

Right to internet can be traced back to the United Nations report which ruled that disconnecting people from the internet is a human rights violation and against international law and violative of Article 19, paragraph 3 of the International Covenant on Civil and Political Rights.[ii]

Following the United Nations Report, the ruling of UN was imported by the Kerala High Court which held that the right to have access to the internet is a part of the Fundamental Right to Education as well as the right to privacy under Article 21 of the Constitution. A petition was filed before the Kerala High Court by a college student challenging her expulsion for not adhering to restrictions on the use of mobile phone. The Petitioner challenged the same since it affected their learning process and violative of Article 19(1)(a) of the Constitution.

The Court had observed that, “When the Human Rights Council of the United Nations has found that the right of access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law. Thus, right to internet became a Fundamental Right under Article 19(1)(a) of the Constitution of India.

The Constitutional Order:


Following this constitutional order, the District Magistrates of J&K imposed restrictions on the freedom of movement and public assembly under S. 144 of the Code of Criminal Procedure, 1973. One journalist named Anuradha Bhasin filed a petition before the Supreme Court of India stating that the restriction imposed under S. 144 of CrPC restricted the movement of journalists and all modes of communication were totally banned in the State which violated the freedom of speech and expression.[iii]

Further, the State failed to disclose the public orders which were passed following the constitutional order of the President which violated the right to information guaranteed under the Constitution of India. The Supreme Court admitted the petition and submissions were made by both the parties stating whether access to internet shall be treated as a Fundamental Right under the Constitution.


3.DECISION OF THE COURT

The two-judge bench comprised of N.V. Ramana J. and V. Ramasubramanian J. which heard this petition had made a detailed analysis and decree as to whether freedom of speech and expression over the medium of internet can be constituted to be a Fundamental Right under the Constitution of India. The bench held that the State is obligated to disclose information in order to satisfy the right to remedy as established under Article 32 of the Constitution of India.[iv]

Section 144 of CrPC cannot be used indefinitely to suppress freedom of speech and expression and difference of opinion. A complete ban on internet and communication services cannot be imposed and shall be exercised only for a particular period of time.The Supreme Court further held that Article 19 includes the freedom of speech and expression over the medium of internet which is subject to reasonable restrictions. The test of proportionality and reasonable restriction should be applied to assess whether restriction can be imposed on freedom of speech online.

[i]INDIA CONST. art. 19, cl. 2. [ii]International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. [iii]Anuradha Bhasin v. Union of India, WP (Civil) No. 1031 of 2019 [iv]Ram Jethmalani v. Union of India, (2011) 8 S.C.C. 1.


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