Right to Internet Access: A Fundamental Right under Article 21?

I. Introduction

The 21st century has witnessed a massive digital transformation in every sphere of human activity. The internet has revolutionized communication, education, commerce, governance, and social interactions, making it an indispensable part of daily life. It is no longer a luxury; rather, it is a necessity. In this digital era, the ability to access and use the internet is essential for realizing many other fundamental rights such as education, free speech, and livelihood. Against this background, the critical legal question arises: Should the right to internet access be recognized as a fundamental right under Article 21 of the Indian Constitution?

This article attempts to delve into the constitutional, judicial, and international perspectives on the issue. It also explores the socio-economic implications of denying internet access and proposes reforms for establishing digital inclusion as a fundamental right.

II. Article 21 and Its Expanding Horizon

Article 21 of the Indian Constitution guarantees that:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

While the provision appears narrow on its face, the Supreme Court of India has over decades adopted a dynamic and expansive interpretation of this article. The judiciary has held that the term “life” in Article 21 does not merely refer to animal existence but includes the right to live with human dignity.

Judicial Expansion of Article 21

• Maneka Gandhi v. Union of India (1978): The court established that the procedure depriving a person of liberty must be just, fair, and reasonable.
• Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981): The court held that the right to life includes the right to live with human dignity.
• Olga Tellis v. Bombay Municipal Corporation (1985): The right to livelihood was read into Article 21.
• K.S. Puttaswamy v. Union of India (2017): The right to privacy was declared a fundamental right under Article 21.

These landmark decisions show that the Indian judiciary has progressively interpreted Article 21 in light of changing societal and technological contexts. Internet access is the next logical step in this constitutional evolution.

III. Internet Access as a Medium of Exercising Fundamental Rights

The internet serves as a platform for exercising several other constitutional rights, including:

1. Right to Freedom of Speech and Expression (Article 19(1)(a)): The internet is now a primary forum for political discourse, social commentary, and expression of ideas.
2. Right to Education (Article 21A): With the proliferation of online education platforms, the internet has become a crucial educational tool.
3. Right to Livelihood (Article 21): Many businesses and professions now depend on the internet. From gig economy workers to e-commerce entrepreneurs, digital access is essential for earning a livelihood.
4. Right to Information and Participation in Governance: E-governance initiatives such as digital identity (Aadhaar), online banking, and public grievance redressal mechanisms require internet connectivity.

Thus, denial of internet access can hinder the enjoyment of several fundamental rights, making it imperative to recognize digital access as an enforceable right.

IV. Judicial Recognition in India

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

In this case, the Kerala High Court held that the right to access the internet is part of the right to education and the right to privacy under Article 21. A college hostel rule that restricted internet usage of female students was struck down. The court emphasized that the internet is an essential tool for modern education and empowerment.

2. Anuradha Bhasin v. Union of India (2020)

This case dealt with the internet shutdown in Jammu & Kashmir. The Supreme Court ruled that: – Freedom of speech and the right to trade through the internet are protected under Article 19(1)(a) and 19(1)(g). – Restrictions on internet access must be reasonable, proportionate, and temporary.

Although the court did not explicitly declare internet access a fundamental right, it reinforced its significance in the context of democratic rights.

V. International Developments and Recognition

Globally, several countries and international bodies have acknowledged the importance of internet access:

• United Nations Human Rights Council (2016): Declared internet access as integral to the right to freedom of expression.
• Finland (2010): Recognized broadband internet as a legal right for every citizen.
• Estonia: Declared internet access a basic human right and invested heavily in digital literacy.
• France: Constitutional Council declared internet access a fundamental component of freedom of communication.

These developments show a growing consensus that internet access is no longer a luxury but a necessity for meaningful participation in society.

VI. The Digital Divide in India: A Barrier to Equality

India faces a significant digital divide based on geography, gender, income, and education.

• Rural-Urban Gap: While urban areas have 67% internet penetration, rural India lags at around 30%.
• Gender Gap: According to GSMA reports, women are 40% less likely than men to use mobile internet in India.
• Economic Disparity: Poorer households lack access to devices and connectivity, leading to educational and economic exclusion.

Without recognizing internet access as a fundamental right, millions of Indians risk being left behind in the digital age.

VII. Legal and Policy Implications

Arguments in Favor

1. Constitutional Obligation: Article 21 must be interpreted in a way that adapts to modern realities. The judiciary has the mandate to expand its scope.
2. Digital Inclusion: Recognizing internet access as a right would compel the State to take proactive steps in ensuring digital equity.
3. Checks on Arbitrary Shutdowns: Recognition would create legal grounds to challenge arbitrary and prolonged internet shutdowns.

Arguments Against

1. Implementation Challenges: Infrastructure gaps in remote areas may make enforcement difficult.
2. Security Concerns: Governments may require shutdowns in cases of unrest, riots, or threats to national security.
3. Judicial Overreach: Critics argue that it is for the legislature, not the judiciary, to create new rights.

However, these concerns can be addressed through a balanced approach, ensuring reasonable restrictions without compromising constitutional principles.

VIII. The Way Forward

1. Legislative Recognition

A comprehensive legislation can be introduced to recognize internet access as a basic right. Such a law can set time-bound goals, create obligations for service providers, and outline grievance redressal mechanisms.

2. Strengthening Digital Infrastructure

Schemes like BharatNet and PM-WANI need to be expanded and adequately funded to ensure high-speed internet in rural and underserved regions.

3. Promoting Digital Literacy

Digital literacy programs, especially targeting women, SC/ST communities, and the differently-abled, must be scaled up to ensure meaningful internet access.

4. Ensuring Affordability

Public Wi-Fi hotspots, subsidies for low-income households, and affordable smartphones are essential for bridging the access gap.

5. Judicial Declaration

The Supreme Court can, in an appropriate case, declare internet access as a fundamental right under Article 21, setting a binding precedent for all future cases.

IX. Conclusion

In a rapidly digitizing world, internet access is not merely a tool of convenience but a lifeline for education, employment, communication, and governance. The Indian Constitution, through its dynamic interpretation, has consistently evolved to meet contemporary needs. Recognizing the right to internet access as a fundamental right under Article 21 would be a natural and necessary step to uphold the principles of justice, liberty, equality, and dignity.

Such recognition would not only empower citizens but also hold the State accountable in ensuring inclusive digital development. In the pursuit of a just and equitable society, the internet must be seen not as a privilege for a few, but a right for all.

Contributed by: Vanshika Dhiman (Intern)