Right to Internet Access as a Fundamental Right: An Emerging Jurisprudence

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Right to Internet Access as a Fundamental Right: An Emerging Jurisprudence

Written by Rashi Thakur

Table of Contents

Introduction

In the 21st century, the internet is no longer a luxury—it is a lifeline. From education and employment to healthcare, governance, and free speech, digital connectivity has become central to how societies function. As such, access to the internet has taken on the character of a basic enabler of fundamental rights. In recent years, courts around the world, including in India, have increasingly recognized the Right to Internet Access as a necessary condition for exercising other constitutionally guaranteed freedoms.

While the Indian Constitution does not explicitly recognize the right to internet access, an emerging body of jurisprudence has situated it within the framework of Article 19 (freedom of speech and expression) and Article 21 (right to life and personal liberty). This article examines the evolution of this jurisprudence, significant legal developments in India and abroad, and the broader implications of treating internet access as a fundamental right.

What Does the “Right to Internet Access” Mean?

The “right to internet access” implies that individuals should have:

  • Affordable, non-discriminatory access to internet services,
  • Freedom to use the internet to express, receive, and disseminate information,
  • Protection against arbitrary shutdowns or restrictions, and
  • Inclusion in the digital economy and society.

In essence, it is about digital inclusion and ensuring that no one is excluded from the exercise of their rights because they are offline.

1. Article 19(1)(a) – Freedom of Speech and Expression

The internet is now a primary medium for expression and information exchange. Blogging, social media, digital journalism, and video content have replaced traditional platforms. Denial of access, especially through internet shutdowns, directly impinges on free speech.

2. Article 21 – Right to Life and Personal Liberty

The right to life includes the right to live with dignity. In the digital age, access to the internet enables access to livelihood, education, medical care, and government welfare schemes. Blocking or denying access can amount to an infringement on this broader understanding of life and liberty.

3. Article 14 – Right to Equality

Unequal access to the internet creates digital divides based on geography, gender, and socio-economic status. Ensuring universal internet access is vital to promote equality of opportunity.

Key Judicial Pronouncements in India

1. Faheema Shirin R.K. v. State of Kerala (2019)

In a landmark decision, the Kerala High Court held that:

“Right to access the internet is part of the fundamental right to education and the right to privacy under Article 21 of the Constitution.”

The case arose when a college hostel restricted internet access for women students. The Court ruled that such restrictions were arbitrary and gender-discriminatory, making access to the internet a matter of personal liberty and dignity.

2. Anuradha Bhasin v. Union of India (2020) – Internet Shutdown in Jammu & Kashmir

This Supreme Court judgment addressed the legality of the indefinite internet shutdown in J&K following the abrogation of Article 370.

Key Observations:

  • Freedom of speech and expression and the freedom to practice any profession or carry on trade through the medium of the internet is constitutionally protected.
  • Any restriction must pass the tests of legality, necessity, and proportionality.
  • Indefinite suspension of internet services violates constitutional principles.
  • The Court mandated periodic review and publication of shutdown orders.

Though the Court stopped short of declaring internet access a standalone fundamental right, it linked it closely with existing rights.

3. Foundation for Media Professionals v. Union Territory of Jammu & Kashmir (2020)

The petition challenged the restrictions on 4G services in J&K. While the Court did not strike down the restrictions, it emphasized the importance of high-speed internet for education, health, and livelihood, especially during the COVID-19 pandemic.

Comparative International Developments

1. United Nations Human Rights Council

In 2016, the UNHRC declared:

“The same rights that people have offline must also be protected online.”

It condemned measures to intentionally disrupt internet access and called on states to promote digital inclusion.

2. Estonia

Estonia became the first country to declare internet access as a human right in 2000, recognizing it as essential for modern democratic participation.

3. Finland

In 2010, Finland made broadband internet a legal right, mandating telecom operators to provide all citizens with a minimum internet speed.

4. France

The Constitutional Council of France recognized internet access as a basic human right, holding that restricting it affects free speech.

Internet Shutdowns in India: A Growing Concern

India has become notorious for frequent internet shutdowns. According to global digital rights groups, India has accounted for more than 50% of global shutdowns in recent years.

Shutdowns are often imposed in the name of:

  • Public order
  • Security during protests
  • Preventing rumors or misinformation

However, these shutdowns disproportionately affect the poor, students, small businesses, and medical services, especially in rural or conflict-prone regions.

The lack of a transparent legal framework and independent oversight makes shutdowns vulnerable to misuse.

Need for a Statutory Framework

Although the Supreme Court in Anuradha Bhasin laid down principles for internet restrictions, India still lacks:

  • A dedicated law defining the right to internet access,
  • Standards for universal broadband connectivity, and
  • A clear oversight mechanism for shutdowns.

A statutory framework could:

  • Guarantee minimum broadband access as a legal right,
  • Provide for digital inclusion programs in rural and underserved areas,
  • Lay down strict criteria for permissible restrictions,
  • Establish a grievance redressal mechanism for arbitrary shutdowns.

The Way Forward: Making Internet Access Meaningful

Recognizing internet access as a fundamental right is not merely about connectivity—it’s about empowering citizens in a digital democracy.

Key steps include:

  1. Bridging the Digital Divide – Ensure equitable access across caste, gender, class, and geography.
  2. Strengthening Infrastructure – Public investment in rural broadband, community Wi-Fi, and digital literacy programs.
  3. Safeguarding Online Rights – Enact strong data protection laws, prevent censorship, and uphold net neutrality.
  4. Legal Recognition – Amend existing laws or enact new legislation affirming internet access as a constitutional entitlement.

Conclusion

In today’s interconnected world, the right to internet access has become indispensable to the realization of fundamental rights. Indian courts have laid the groundwork for a progressive interpretation that aligns with global trends and democratic values. However, judicial recognition must be matched by legislative action and policy implementation.

As India advances toward a digital economy and governance model, ensuring affordable, secure, and unrestricted internet access for all citizens is not just a matter of convenience—it is a matter of constitutional justice and democratic empowerment.

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