Maharashtra National Law University, Mumbai

Constitutional Law I Project

Submitted to: - Prof. Milind Gawai

Submitted on: - 15/10/24

Submitted by: - Rashi Deulkar

Enrolment No: - 2023 070

Semester: - III

Course: - B.A., LL. B. (HONS.)

1. Title of the article, name of the author and the publication details
Title:

Right to Internet Access - A Constitutional Argument

Author:

Kartik Chawla

Journal:

Indian. Journal of Constitutional Law

Volume:

Year:

2017

2. Relevant constitutional provisions discussed in the article

a. Article 19(1)(a)1:
“All citizens shall have the right to freedom of speech and expression”.

3. Brief note on those provisions/articles of the constitution

a. Article 19(1)(a): This fundamental right guarantees the right to freedom and
expression to all citizens. However, this right is not absolute. It must be read along
with Article 19(2), which imposes reasonable restrictions on the freedom. Clause 2
validates both pre-constitutional and post-constitutional laws that place reasonable
limits on speech, introducing grounds such as the sovereignty and integrity of India,
security of the state, public order, etc. Article 19(1)(a) has been interpreted broadly to
include rights such as the freedom of the press, right to information, right to silence,
and even the right to access the internet, though these are not explicitly mentioned in
the text.

1
India Const. art. 19, cl. 1(a).
4. Principal arguments of the author on those articles

The author discusses how the negative dimension of the concept of a right to internet access
is intertwined with the right to freedom of speech and expression, and the right to seek,
receive, and impart information.2 Right to freedom of speech and expression is inclusive of
the right to internet access under Article 19(1)(a) of the Indian Constitution. The author
postulates that internet access is crucial for exercising derivative freedoms such as the
freedom to information, freedom to publish, freedom to disseminate and circulate information
and freedom to communicate.

1. The author refers to the PUCL v. The Union of India 3 case in which the apex court has
dismissed concept of derivative rights but it is open to the expansion of fundamental
rights as per the requirement of the society. The author argues that the right to use the
Internet could be implied in the same way that the right to privacy was under Article 21.
The author argues that right to internet access should be separately recognised is
necessary given that this right is under a threat from governmental and private entities. (p.
76,77)

2. The author asserts that freedom of speech and expression includes the right to know,
which is crucial for forming beliefs and communicating them. Closely related, the author
builds further from this logic to assert that freedom of speech also encompasses the right
to the internet. The author claims that the internet helps in attaining the truth and
enhances decision-making potential based on the original purpose of designing it for
research purposes. (p. 77,78,79)

3. The author presents an argument that right to freedom of speech and expression is a
medium neutral. In S. Rangarajan v. P. Jagjivan Ram and Ors. 4 (1989) the court
recognized right to express opinions through any medium as a part of freedom of speech.
The court in LIC v. Manubhai D. Shah 5 (1992) emphasized that freedom of speech is a
natural right under Article 19 of the Universal Declaration of Human Rights 6 (UDHR)
and applies to any communication method. Similarly, in Odyssey Communications Pvt.

2
Kartik Chawla, Right to Internet Access - A Constitutional Argument, 7 Indian J. Const. L. 57 (2017).
3
People’s Union for Civil Liberties v. Union of India, A.I.R. 2003 S.C. 2363.
4
S. Rangarajan v. P. Jagjivan Ram, A.I.R. 1989 S.C. 207.
5
Life Insurance Corporation of India v. Manubhai D. Shah, A.I.R. 1993 S.C. 171.
6
Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 at 71, art. 19 (1948).
 Ltd. v. Lokvidayan Sanghatana & Ors.7 (1988) the Court had ruled that the fundamental
right protected by Article 19(1)(a) of the Constitution to freedom of speech includes the
showing of films on television, the Court thereby adopting the medium neutrality
principle. (p. 80,81)

4. In Sakal Papers (P) Limited and Another vs Union of India and Others 8 (1962), the Court
upheld that free speech means free speech, to publish and circulate ideas. Further in
Bennett Coleman & Co. v. Union of India 9 (1972) the Court pointed out that this is the
right of the people for reception of information not only a press right to disseminate
information. In Secy., Ministry of Information and Broadcasting v. In Cricket Association
of Bengal10 (1995) it was ruled that right to receive and impart information is intrinsic to
freedom of speech and expression. Also, in Union of India v. Naveen Jindal 11 (2004), the
Court broadened the freedom of imparting and receiving any information through any
means, including broadcasting. The author says that free speech means freedom to
disseminate and express ideas through any media which is the right to press freedom and
access to information. (p. 81, 82, 83).

5. Interpretation on the author’s arguments

The author opines that right to internet is an extension of the Right to freedom of Speech and
Expression. PUCL v. In Union of India 12 (2003), the author advocates for internet to be
acknowledged as a derivative right, in the same way, the Right to Privacy under Article 21 13.
The interpretation offers opportunities for extending the freedom of speech to embrace
modern internet technologies. The author suggests that due to the right being medium neutral,
it should also encompass the newer media in the same way it does the older forms of
communication.

The author draws parallels to freedom of press noting that landmark judgements such as
Sakal Papers 1962 and Bennett Coleman 1972, which state the freedom to publish and
circulate information which applies to the online medium as well. The author argues that the
internet improves the flow of information, enables public discussion, and meets the
7
Odyssey Commc'ns Pvt. Ltd. v. Lokvidayan Sanghatana, A.I.R. 1988 S.C. 1642.
8
Sakal Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305.
9
Bennett Coleman & Co. v. Union of India, A.I.R. 1973 S.C. 106.
10
Sec'y, Ministry of Info. & Broad. v. Cricket Ass'n of Bengal, A.I.R. 1995 S.C. 1236.
11
Union of India v. Naveen Jindal, A.I.R. 2004 S.C. 1664.
12
People’s Union for Civil Liberties v. Union of India, A.I.R. 2003 S.C. 2363.
13
India Const. art. 21.
fundamental functions of free speech. The author argues that the courts have consistently
maintained that the right to free speech is broad and unrestricted by the nature of the medium.

In essence, the author's argument is clear that internet ought to be protected under the
constitution as being free speech through the availability of internet, people in the modern
society can express, share and receive information.

6. Support of the author’s argument

The internet has become a key space where individuals exercise their right to know, engage in
political discourse, share ideas, and challenge societal norms. It is being seen that internet as
also become a platform for people to practice trade. In the foundational case of Media
Professionals v. Union Territory of Jammu and Kashmir 14, the court said right to internet is a
pre-requisite to “Freedom to practice any trade, profession, occupation or business” given
under Article 19(1)(g)15. Maneka Gandhi v. Union of India 16 shed light on the role of internet
to inform the citizens. Thus, to ensure right to information guaranteed under Article 19(1)(a),
“Right to Internet” was important.

The writer’s use of different court rulings supporting medium neutrality also strengthens the
need to have free speech on forms of communication like digital platforms. This principle
recognizes the Internet as among the ways through which freedom of speech may be
exercised. The argument that press freedom as part of free speech means that information is a
collective right also stresses that modern media outlets should also be considered as part of
the press.

The author argues that in the era of private as well as public restrictions on free speech, right
to access the internet has become a crucial one. Internet is one such medium which is free
from any such control and so it showcases the real public opinion. Therefore, any restrictions
on internet access, is a violation of fundamental rights. In this context, the author argues that
Internet access is essential for the contemporary society and their democratic participation. In
another scenario, Right to Internet Access is intertwined with the right to education as well.
Students in distant and rural areas will be benefited if right to internet is fully implemented by

14
Media Professionals v. Union Territory of Jammu & Kashmir, A.I.R. 2023 J&K 123.
15
India Const. art. 19, cl. 1(g).
16
Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597.
government as recognized by the Supreme Court.17 Especially during the COVID-19, internet
access has been crucial for e-learning.

7. Critique the author’s argument

While the author insists on the necessity to accept internet access as a derivative right,
author’s reliance on the cases that have dismissed this concept weakens the argument.
Author’s assertion that separate recognition of internet access is necessary due to threats from
governmental and private entities may overlook practical challenges in enforcing such rights.
The author themselves acknowledges that it will be expensive because the internet has to be
made available to everybody within India. While the positive right of internet access is
preferable, the reality of its implementation at the moment isn’t feasible due to the
infrastructural issues.

Consequently, if right to internet access is recognized as another fundamental right then

people could post whatever they desired. These include hate speech, fake news, cyber
harassment, and appealing to violence. While it is acknowledged that no right is absolute and
reasonable restrictions can be imposed, the challenge lies in determining what constitutes
"reasonable." What if the reasonability isn’t enough to curtail the misuse of this right. Here,
one’s exercise of their right becomes infringement of other’s rights.

Moreover, the argument for medium neutrality presented by the author fails to account for the
challenges in regulating speech on different platforms. While traditional media like print and
films, is subject to well-established legal frameworks (such as media codes, censorship
boards, etc.), the internet’s decentralized complicates enforcement and establishing a
framework which balances freedom of expression and need to prevent any harm arising out
of it becomes complex.

8. Judgments of the Supreme Court

a. Anuradha Bhasin v. Union of India, 202018

In this case, SC challenged the order of the government which imposed a blanket ban
on the internet in Jammu & Kashmir. The petition was filed in violation of “Right to
Education”, “Freedom of speech and expression”, “Freedom to carry on trade” and
17
Seema, "Right to Internet: A Fundamental Right Under Constitution of India," International Journal of Civil
Law and Legal Research, vol. 3, no. 1, 2023, pp. 44-47, E-ISSN: 2789-8830, P-ISSN: 2789-8822.
18
Anuradha Bhasin v. Union of India, A.I.R. 2020 S.C. 1.
 “Right to information”. The court recognised “Right to internet” as a “Fundamental
Right”. The devised “Test of proportionality” has to be applied to restrict access to
internet.19 If the restriction doesn’t have any rational reason then such restriction
becomes arbitrary and hence violates Article 14 of the Constitution. The ratio of the
case constitutes; the provisions of Article 19(1)(a) and Article 19(1)(g) of the
Constitution safeguard the rights to freedom of expression and the ability to engage in
any profession, trade, or business online. If these rights are limited, such restrictions
must adhere to a balancing test.20

b. Media Professionals v. Union Territory of Jammu and Kashmir & Anr., 202021
In this case the Supreme Court of India ordered the formation of a Special Committee
to review the restriction of mobile internet to 2G in Jammu and Kashmir. The Court
acknowledged the need to balance the rights to free speech, health, education, and
business with national security concerns. While it found no specific justification for
the blanket shutdown across all districts, it cited cross-border terrorism as a reason not
to declare a constitutional violation, directing the Special Committee to assess the
necessity of the restrictions. The ration being Right to internet access under Article
19(1)(a) is crucial for maintaining a functioning democracy.

9. References used by the author

1. Case Laws
2. International Reports: UN Special Rapporteur on Freedom of Opinion and
Expression, Frank La Rue’s Report22 (2011)
3. Books: John Stuart Mill’s On Liberty23, Yochai Benkler’s The Wealth of Networks24

10. Conclusion

This paper seeks to provide a solid argument for the promotion of internet as a constitutional
right in the constitution of India under articles 19(1) respectively. The author successfully
elucidates ways by which Indian jurisprudence can assimilate this right to the existing Indian

19
Reema Jain, Right to Internet in India: An Analysis, J. for Law Students & Researchers,
https://www.jlsrjournal.in/right-to-internet-in-india-an-analysis-by-reema-jain/ (last visited Oct 15, 2024).
20
SUPRA note 19.
21
Media Professionals v. Union Territory of Jammu & Kashmir, A.I.R. 2023 J&K 123.
22
Frank La Rue, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of
Opinion and Expression, U.N. Doc. A/HRC/17/27 (2011).
23
John Stuart Mill, On Liberty (1859).
24
Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006).
constitution especially in the light of internet’s growing role. There are a lot of problems
associated with this right as to the infrastructural and financial issues. Given the complexities
surrounding internet access—including network neutrality and jurisdictional issues—it
deserves distinct legal recognition. It is thus high time that the Indian Courts formally
recognised the right to internet access, since without such recognition, the ‘right to freedom
of expression’ in the context of internet is nothing but a set of hollow, meaningless words.25

11. References

1. Kartik Chawla, Right to Internet Access - A Constitutional Argument, 7 Indian J.

Const. L. 57 (2017).
2. Reema Jain, Right to Internet in India: An Analysis, J. for Law Students &
Researchers, https://www.jlsrjournal.in/right-to-internet-in-india-an-analysis-by-
reema-jain/ (last visited Oct 15, 2024).
3. Seema, "Right to Internet: A Fundamental Right Under Constitution of
India," International Journal of Civil Law and Legal Research, vol. 3, no. 1, 2023, pp.
44-47, E-ISSN: 2789-8830, P-ISSN: 2789-8822.

25
Kartik Chawla, Right to Internet Access - A Constitutional Argument, 7 Indian J. Const. L. 57 (2017).