Recently, while responding to a petition filed in the Supreme Court for the restoration of 4G internet services, the Jammu and Kashmir government said that right to access the internet is not a fundamental right

This goes against recent court judgments and also shows an unwillingness or inability on the part of the state to understand the fundamental role that internet access plays in the lives of individuals and communities nowadays. In January 2020, while reviewing all orders of restrictions imposed in Jammu and Kashmir in the aftermath of the scrapping of the state’s special status, the Supreme Court declared that the indefinite suspension of the internet was not permissible and repeated shutdowns amounted to an abuse of power.

More importantly, the court held that “the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1) (a) and Article 19(1)”. The court also held that the restrictions on the internet have to follow the principles of proportionality under Article 19(2). The judgement by the court follows the Kerala high court’s judgement in Faheema Shirin v. State of Kerala, where the right to internet access was recognised as a fundamental right forming a part of the right to privacy and the right to education under Article 21 of the constitution.

Both judgements establish that the right to internet access has been given limited recognition as an enabler for other rights within Article 19 and 21. Most academic and non-academic literature, especially in India, seeks to locate the right to internet within Article 19. However, an argument can be made that internet access should be recognised as an independent fundamental right, conceivable as an aspect of the right to life under Article 21.

Internet access means access to actionable information, innovation best practices, access to finance and credit facilities, facilitation of entrepreneurship and an enhanced employment market. In terms of social benefits, internet access helps by facilitating and enabling an enhanced utility value of primary necessities, internet access can prove a useful accelerator in all social development objectives and targets of the Sustainable Development Goals.

One argument could be to recognise it as an independent right linked to Article 21, like the right to education, recognised under Article 21A. If we look at the journey of this right, from Mohini Jain vs. State of Karnataka, to Unni Krishnan vs. State of Andhra Pradesh, two things stand out. Firstly, how the court has relied on specific directive principles, such as Articles 38, 39, 41 and 45 to conclude that the fundamental rights guaranteed to citizens, under Article 21 and 19, cannot be realised without ensuring the right to education.