Access to the Internet

In one line

Indian law protects what you do on the internet, not the internet itself, and the difference decides every problem on this topic.

In the wording a student can write in an exam: the Supreme Court has declared that the freedom of speech and expression and the freedom to practise any profession or carry on any trade, business or occupation over the medium of the internet enjoy constitutional protection under articles 19(1)(a) and 19(1)(g), restriction on which must conform to articles 19(2) and 19(6) including the test of proportionality; the Kerala High Court has held that the right to have access to the internet becomes part of the right to education as well as of the right to privacy under article 21. Neither declares a free-standing fundamental right to the internet, and the accurate proposition is that the internet is a medium through which existing rights are exercised, so a restriction on the medium is a restriction on those rights and must be justified as such.

Why the law has this at all

Two reasons, and they are different.

The first is doctrinal. A right of expression is worth what its medium is worth. If the State may close the medium at will, the right survives in form and disappears in fact, which is why article 19(1)(a) was held from early on to protect the means of circulation and not merely the act of speaking. The internet is now the medium through which a very large part of expression, work, education and commerce is conducted, so a power to switch it off is a power over all of them at once.

The second is practical, and it is the digital divide. [Equality and the Digital Divide] establishes that technology multiplies existing inequality. Access is where that happens first: when banking, welfare, admission, employment and the courts are reached through a network, a person without access is not merely inconvenienced but excluded from ordinary participation, and the WSIS Declaration's paragraph 10 commitment to turn the digital divide into a digital opportunity for all is the international statement of the same point.

The Indian position, stated exactly

Anuradha Bhasin v. Union of India

Facts. On and after 4 August 2019 the Government of Jammu and Kashmir restricted movement under section 144 of the Code of Criminal Procedure and suspended mobile, internet and landline services across the territory. The editor of a newspaper published from Srinagar petitioned that the suspension prevented the press from working, and a Member of Parliament petitioned on the restrictions generally. The suspension orders had been made under the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules 2017, framed under the Indian Telegraph Act 1885, and most of them had not been published.