India: Top court declares internet a fundamental right

By Shuriah Niazi

NEW DELHI (AA) – In a hearing on the months-long internet blockade in Jammu and Kashmir, India's Supreme Court on Friday declared access to the internet a fundamental right and the restrictions unconstitutional.

Based on Article 19(1) of the Indian Constitution, guaranteeing the right to freedom of speech and expression, the top court said that a complete curb on the internet should be imposed only as an extraordinary measure. The judgment said the repeated orders in Kashmir to suspend the internet, including the one which started last January, amount to an abuse of power.

Experts believe the ruling by the apex court will have wide ramifications.

“The court not only ruled internet access is a fundamental right but it also fixed parameters under which the internet can be shut down in the country, as we have more than 100 shutdowns in 2019 itself,” said Prasanth Sugathan, counsel at the Software Freedom Law Centre.

Jammu and Kashmir has been under continuous lockdown since Aug. 5 when India scrapped provisions of Article 370 of its Constitution that provided a certain degree of autonomy and the protected region’s demographic character.

Speaking to Anadolu Agency, Prasanth said: “Now the Supreme Court said internet access is a fundamental right. So now it will only be under exceptional circumstances under Article 19(2), which sets certain conditions under which fundamental rights can be curtailed, that this access can be denied.”

He added: “The positive outcome of the ruling is that now there are only limited conditions under which the internet can be shut down. The Supreme Court has also talked about a review mechanism being in place. Now people will get the details of shutdown orders.”

“We had filed Right to Information (RTI) applications to get details of shutdown orders which were never revealed to us,” said Prasanth, whose Software Freedom Law Center has even filed RTI applications in Kashmir but were not given them for security reasons.

RTIs mandate timely response to citizen requests for government information. The Supreme Court has made it clear that these orders should be made public.

“The positive thing is that once the orders are made public we can approach a court. Right now you do not get access to any order about internet shutdowns,” Prasanth said.

He added: “In 2017, rules were made about how such orders related to internet shutdowns should be issued and the procedure to be followed. But without getting the order, we even don’t know whether these rules were followed.”

He explained: “So unless we have access to these orders we won’t be able to challenge. We will not be able to know who has issued that order. And if that is not as per procedure then we will be able to challenge it in court.”

Supreme Court lawyer Ehtesham Hashmi welcomed the ruling, saying the blockade in Kashmir has made life hell for the public.

“You can see that all people from the medical field to the legal field are connected to the internet. If we’re in Kashmir we can’t talk to our clients without the internet. Therefore the internet needed to be made a fundamental right,” he told Anadolu Agency.

He added: “Millions of people use the internet to communicate and express their feelings and without the internet, it’s not possible for them.”

“On one side Prime Minister Narendra Modi is talking about the cashless economy and on the other side, you have imposed restrictions on the internet. How is it possible?” he asked.