Repeated Internet Blockade: An Infringement to Fundamental Right?

Sandipan Talukdar

It appears an easy task for Assam government to announce (mobile) internet ban for several hours constantly, that too for conduction of recruitment examinations. Tomorrow as well, Assam will experience the same due to the ADRE examination from morning till evening. Although questions are raised and netizens have expressed annoyance over the matter, mostly concerning about the loss of business that rely heavily on internet like taxi services, food delivery etc. yes, loss of business it is, but there is something more than that. Should we not question whether this act stands contradictory to fundamental rights of citizens? Let’s explore this.

Anuradha Bhasin Vs Union of India, 2020

In January 2020, the Supreme Court of India in the case of Anuradha Bhasin vs Union of India, said that access to internet is fundamental right. The case is also interesting as it is related to Kashmir. The case was in connection with internet blockade in Jammu and Kashmir for several months in the view of revoking Article 370.

In August 2019, the Article 370 was abrogated that provided special status to Jammu and Kashmir and since then the entire region was under internet blockade till the Supreme Court judgement came in. The petitioners challenging the blockade include Congress leader Ghulam Nabi Azad along with Anuradha Bhasin of Kashmir Times newspaper. The petitioners argued that the blockade violated their fundamental right to speech and expression and right to move freely enshrined by Article 19 of the Indian constitution.

In response to the petitioners, solicitor general Tushar Mehta told the Apex court that the misuse of social media by Pakistani military and separatists as well as political leaders made it necessary to curb the internet.

In the hearing the Apex court, in its 130 page ruling said that freedom of speech and expression along with the freedom to carry on trade and profession through the internet is a fundamental right under Article 19 of the Constitution.

The judgement also spelt that the reasons of blockading of internet access should be said with specifically mentioning the ‘unavoidable circumstances’ that need such an action. Extending, the ruling said that the reasons for the ban should be in accordance to Article 19(2) and 19(6) of the constitution. These articles empower states to impose restrictions on freedom of expression and speech. Such prohibitory orders are subject to judicial review as per the court ruling.

The clause 2 of Article 19 which empowers states to impose restrictions on freedom of speech that include the integrity and sovereignty of India, security of the state, incitement to an offence, public order etc.

Notably, the UNHRC (United Nations Human Rights Council) also recommended that access to internet should be declared a fundamental right by all the countries in 2016.

Kerala Was the First to Declare Internet a Basic Human Right

In 2019, in the case of Faheema Shirin Vs the State of Kerala, the Kerala High Court said that right to internet access is a part of the fundamental right to Education and Right to Privacy under Article 21 of the Indian constitution.

Faheema Shirin was a 3^rd semester BA student of Sree Narayanaguru College. Kozhikode under Calicut University and she stayed at the college hostel. The hostel rules restricted the boarders to use internet during night. Faheema was arguing for lifting the ban. She pursued the matter with the collage and hostel authorities and unable to get it resolved. Finally she approached the court.

Notably, Kerala was also the first Indian state to launch its own internet service provider K-FON (Kerala Fibre Optic Network).

The Assam Questions

Putting everything into perspective, there are some pressing questions for the citizens of Assam. Is it really an unavoidable circumstance for the government to conduct the examination free and fare? Remember, the security and checking in the examination premises are very high and not even the water bottle was allowed in the previous ADRE exam. The candidates were also not allowed to carry the wallets, but few currency notes. It also created widespread condemnation of the police action in Nalbari where private parts of women were not spared from checking. In that scenario is it really unavoidable a situation for the government but to block the internet for conducting a fare examination?

Can the government come out with more convincing explanations why the blockade is inevitable and how it is not infringing to our basic human rights?

Does the government have any compensation plan for those who would suffer loss due to the blockade? Will the government ever produce an account of the economic losses due to such blockades?

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