The Supreme Court has recently formed a committee to look into the demand for allowing 4G internet services in J&K. Access to internet is essential in this ongoing pandemic situation where people are dependent on it for education, health, finances, and other reasons.

Many have demanded access to internet as a fundamental right. However, we must distinguish the two issues, i.e., right to access internet, and access internet at a certain speed.

In early 2020, the Supreme Court delivered a judgment [Anuradha Bhasin & Ors v. Union of India] on primarily the issue of a citizen’s right to freedom of speech and expression under Article 19 (1)( (a), and the right to carry on any trade or business under Article 19 (1) (g) of the Constitution of India, using the medium of internet.

The court decided that “the freedom of speech and expression through the medium of internet is an integral part of Art 19(1) (a) and accordingly any restriction on the same must be in Accordance with Art 19(2).

The court also decided that the freedom of trade and commerce through the medium of internet is also constitutionally protected under Art 19(1) (g) subject to the restrictions provided under Art 19 (6)”.

It protected the right to use internet as medium for fulfillment of our fundamental rights, especially freedom of speech and expression, and freedom of trade and commerce.

Thereafter it has been widely reported and is believed that the Court has declared access to internet as a fundamental right. It is factually incorrect, as the court in its own words said, “none of the counsels have argued for declaring the right to access the internet as a fundamental right and therefore we are not expressing any view on the same.

It interpreted the elements of reasonable restriction in the light of Modern Dental College & Research Centre v. State of M.P [(2016) 7 SCC 353] case with help from Canadian and German jurisprudence on theories of proportionality and held that the restrictions placed under Article 19 (2) & (6) must include the test of proportionality.

It further held that any order suspending internet services indefinitely under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules 2017 will be open for judicial review and will be subject to the principles of proportionality.

So, nowhere did the judgment touch the issue of right to access internet as a fundamental right under the constitutional framework.

Is right to access internet a fundamental right?

No, right to access internet in India is not yet a fundamental right. Mr. Vinton G. Cerf in 2012 wrote an opinion in New York Times saying that internet access is not a human right, as it doesn’t meet a higher threshold nor is it essential for humans to live a meaningful and dignified life.

For him, any technology is an enabler/means to rights but not a right in itself. Mr. Frank Rue’s Report to the Human Rights Council (HRC) [2011], on promotion and protection of the right to freedom of opinion and expression, recommended that nations should work along with private sector to increase access to internet in rural areas and among the most disadvantaged sections of the society to narrow the digital divide that exists in society.

It emphasized that though international human rights legal framework doesn’t identify access to internet as a human right, still States must develop concrete strategies to “make internet widely available, accessible and affordable to all based on the principles of non-discrimination of any kind, including race, color, sex, language, disability, economic origin, or any other status”.

The World Summit on the Information Society adopted resolutions aiming to bridge North-South divide by means of international co-operation, while empowering the poor to access Information and communication technologies The HRC, in the resolution on ‘The promotion, protection and enjoyment of human rights on the Internet’ (2016) emphasized on applying a human rights-based approach in providing and in expanding access to internet. Such an instrument carries only persuasive value for the States. International law has clearly not taken a rights-based approach towards access to internet.

However, States individually have developed strategies either through legislation or policies on making access to internet a reality for their population. Theodore Vail, coined the phrase ‘Universal Service’, envisioning telephone as public utility while making it affordable. It has led to the evolving concept of ‘Universal Service Principle’ [USP], which has found its place in several countries’ policy to increase internet outreach among the disadvantaged communities too.

The Universal Service Directive (2002), legislation for universal telecommunications in the EU, revised in 2009, extends access to the public communications network to include ‘functional access to the internet’ subject to prevailing technologies and its feasibility.

The EU member States implement the Directive through national legislations widening the scope to define the terms of Universal Service Obligation [USO], funding mechanisms based on their national conditions.

It has led to different practices among EU Member States about access to internet, its speed, etc. Countries like Estonia, France, Finland, Costa Rica, and Spain have addressed access to internet in legislations, but not in the language of human rights. India like several nations has chosen the path of Policy and Schemes rather than the legislative route with respect to access to internet. It has created tools like ‘Universal Service Obligation Fund [having statutory status], to fulfill USO, involving both public and private participants.

The Universal Service Support Policy and the guidelines came into effect from 2002.

In 2019 this policy got a boost with the adoption of ‘National Broadband Mission’ [NBM] or ‘Rashtriya Broadband Abhiyan’, as a result of the ‘National Digital Communications Policy’ [NDCP] (2018). Universality; affordability; and quality are the pillars of NBM. It identifies deliverables like providing access to broadband to all villages by 2022; high broadband speeds; accelerate fiberization; strengthen 4G network and rollout 5G.

Monitoring of the initiative will be at central, State, and District level. India being an emerging economy has decisively abandoned the human rights perspective to access to internet, which would have made it a justiciable right too.

Till the matter is specifically addressed before the apex court, to be interpreted within the wider ambit of Right to Life under Article 21, we can only hope that the policy fulfills its objectives within the stated timelines.

The writer is Assistant Professor of Law, National Law University Odisha.