Article 370: Roti, Kapda aur Makaan. These are the three key ingredients that have traditionally dominated the conversation of Fundamental Rights in India. There is a new dimension to it in modern-day society: the Internet. Its low cost has made it available to the poor and downtrodden as well. Consequently, shutting down the Internet has also entered this realm.
Article 370: Evolution of Internet as right
The Internet is part and parcel of everyday life. It helps students in their studies, traders in their trading, teachers in their teaching, shop owners in receiving payment, businesses in advertising, and what not. Looking at its penetration in daily life, in 2017, Kerala declared access to the Internet a basic human right.
It was only a matter of time before the Judiciary would step in with its constitutional guidelines regarding the same. The United Nations’ recommendation regarding making the Internet a fundamental right adds another layer of legitimacy and a moral rule to abide by.
In India, internet rights are covered under two articles, namely 19 and 21. In the Faheema Shirin case, the Kerala High Court held that Access to Internet is part of the right to education under Article 21A and the right to privacy, which is a derivative of the Right to life under Article 21.
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Later, when the Internet was shut down in Jammu and Kashmir after the abrogation of Article 370, the matter reached the Apex Court. A journalist named Anuradha Bhasin challenged it on the ground that an internet shutdown amounts to restriction on press freedom.
Press freedom is a judicially sanctioned derivation of the Right to Speech under Article 19. In the Anuradha Bhasin case, the Apex Court finally declared the Internet as a fundamental right. Even after upholding it as a fundamental right, the petitioner did not get much relief.
That is because national security was at stake. National security is one of the reasons the government can use it to curb fundamental rights. Make no mistake about it; it is a constitutionally sanctioned reason under Article 19(2).
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Legal mechanisms for shutting down the Internet
It does not mean that the government can do it incessantly. Oh, but it does. Section 144 of the Crpc empowers local authorities to shut down Internet in certain areas. Similarly, Section 69(A) of the IT Act enables the shutting down of websites. Section 5(2) of the Indian Telegraph Act is another weapon in the hands of the government. Its conditions and procedures are guided by the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
Ultimately, it is the conflict between the fundamental rights of individuals and group rights as a whole. Its solution has been provided in the K.S. Puttaswamy judgement. The Apex Court has given certain guidelines regarding infringement of fundamental rights, which include the Internet too.
If the government is shutting down the Internet, the aim behind the orders should be legitimate and constitutionally sanctioned. The restriction needs to not just serve, but also protect the purpose behind it. In addition to it, infringement orders must not restrict the Internet to a greater extent than necessary.
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Times when government can do it
If the government wants to ban the Internet in a certain location, no matter how big or small, these are some of the checks and balances that it needs to abide by. However, the ambit of the Internet ban is much broader.
If the government has reasonable doubt that the free flow of Internet poses a threat to India’s sovereignty and integrity, it can shut it down. For instance, if terrorist infiltrators are using the Internet connection in Kashmir, it can be shut down. The same holds true for any internal enemy, such as Naxals and Maoists, who endanger state security and public order in certain localities.
Public order can also be disturbed by nefarious elements of society. They often tend to incite one identity group against another to gain political leverage. Even in that circumstance, the Internet can be temporarily shut down for a brief period.
These are broad situations under which the government can shut down the Internet. All it needs to do is follow procedural guidelines and not use it as a check on freedom of expression and the right to live.
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