The Right To Internet Access As A Fundamental Right In India - A Post-Anuradha Bhasin Analysis

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T21:28:11.417923+00:00

Updated: 2026-08-26T17:05:27.296+00:00

THE RIGHT TO INTERNET ACCESS AS A FUNDAMENTAL

RIGHT IN INDIA: A POST-ANURADHA BHASIN ANALYSIS

Ankit Singh, LLM, HNBGU - A Central University (UK)

ABSTRACT

The recognition of internet access as a fundamental right in India represents a critical juncture in constitutional jurisprudence, bridging digital inclusion with civil liberties. This article examines the landmark Anuradha Bhasin v. Union of India (2020) judgment, which affirmed internet access as a conduit for exercising freedoms of speech, trade, and education under Articles 19(1)(a) and 19(1)(g) of the Indian Constitution. While the ruling established proportionality standards for state-imposed internet shutdowns, persistent gaps in legislative frameworks and inconsistent enforcement reveal enduring tensions between national security imperatives and individual rights. The analysis traces the constitutional evolution of this right through precedents such as Faheema Shirin v. State of Kerala (2019) and Justice K. S. Puttaswamy v.

Union of India (2017), while critiquing the Temporary Suspension of Telecom Services Rules (2017) for enabling arbitrary disruptions. Post-Anuradha Bhasin challenges, including throttled 2G services in Jammu and Kashmir and shutdowns during the 2021 farmers’ protests, underscore systemic flaws in safeguarding digital access. Comparative insights from global jurisdictions-such as Finland’s statutory broadband rights and Costa Rica’s judicial recognition of internet access as essential to education-highlight India’s lag in codifying robust protections. The article argues for a constitutional amendment under Article 21F to enshrine internet access as an independent fundamental right, coupled with revised shutdown protocols mandating judicial oversight and time-bound restrictions.

By synthesizing socioeconomic imperatives, judicial activism, and legislative inertia, this study contributes to evolving debates on digital equity and positions India’s jurisprudence within broader discourses on technological constitutionalism. Keywords: Internet, Fundamental Right, Constitution, Jurisprudence

Introduction The profound digital revolution that has swept across the globe has not merely altered the perception of the internet from being considered a luxury commodity to being recognized as an essential utility; rather, it has fundamentally redefined its role in contemporary society, thereby rendering its accessibility an absolutely critical component for the effective exercise of civil liberties, active economic participation, and meaningful social inclusion within diverse populations. In the context of India, the judicial acknowledgment of internet access as a fundamental right has undergone a significant evolution, particularly shaped by landmark judicial pronouncements, with the most prominent case being that of Anuradha Bhasin v. Union of India (2020)1, which has set a crucial precedent in this legal arena.

This scholarly article delves into the intricate legal framework that underpins this essential right, meticulously analyses the Supreme Court’s reasoning in the seminal case of Anuradha Bhasin, and thoughtfully evaluates the subsequent developments and ongoing challenges associated with the enforcement and realization of this right in practice. I. Constitutional Foundations of Internet Access in India

A. Pre-Anuradha Bhasin Jurisprudence

Before 2020, Indian courts increasingly recognized the internet’s role in facilitating fundamental rights. In Faheema Shirin v. State of Kerala (2019)2, the Kerala High Court held that the right to internet access is integral to the right to privacy (Article 21) and education (Article 21A). The petitioner, a college student, challenged restrictions on mobile phone usage in her hostel, arguing that it impeded her access to online educational resources. The court emphasized that “the right to have internet access is part of the right to education as well as the right to privacy under the Constitution”. 3 In a manner akin to previous cases, the landmark judgment rendered in the case of Justice K. S. Puttaswamy v.

Union of India (2017)4, delivered by the esteemed Supreme Court, served to formally acknowledge and establish the concept of privacy as an integral and fundamental right, thereby creating a foundational framework upon which the critical relationship between

1 Anuradha Bhasin v. Union of India (2020) SCC Online SC 25.

2 Faheema Shirin v. State of Kerala WP(C) No. 19716/2019 (Kerala HC).

3 Ibid.

4 Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.

access to the internet and the inherent principles of human dignity and individual autonomy can be intricately linked and understood. Although the ruling did not directly engage with the specific implications of internet access within its text, it nevertheless profoundly emphasized the imperative that continual technological advancements and innovations necessitate a thoughtful and comprehensive re-evaluation and reinterpretation of the constitutional guarantees that have historically governed our legal landscape.

B. The Anuradha Bhasin Judgment: A Paradigm Shift

The 2020 Anuradha Bhasin case arose from the communication blackout in Jammu and Kashmir (J&K) following the abrogation of Article 370. The petitioner, a journalist, argued that the indefinite suspension of internet services violated her rights under Articles 19(1)(a) (free speech) and 19(1)(g) (trade and commerce)5. The Supreme Court’s ruling established three key principles:

1. Internet Access as a Medium for Fundamental Rights

The Court held that the freedom of speech and trade via the internet is protected under Articles 19(1)(a) and 19(1)(g). While stopping short of declaring it an independent right, the judgment affirmed that “the internet is a vital tool for realizing constitutional guarantees”.6

2. Proportionality and Judicial Review

Restrictions on internet access must satisfy the proportionality test under Article 19(2) and (6). The Court outlined four criteria: • Legitimate aim (e.g., national security) • Rational connection between the restriction and the aim • Minimal necessity (least restrictive measure)

5 Anuradha Bhasin v. Union of India (2020) SCC Online SC 25 at para 45.

6 Ministry of Communications, Temporary Suspension of Telecom Services Rules (2017), G.S.R. 998(E).

Balancing societal costs and benefits.7

3. Indefinite Shutdowns as Unconstitutional

The Court ruled that the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017, do not permit indefinite suspensions. Any order must specify duration and be subject to judicial review.8

II. Legal Framework Governing Internet Shutdowns

A. The 2017 Suspension Rules: Structure and Limitations

The Temporary Suspension Rules, enacted under the Indian Telegraph Act, 1885, empower state and central governments to suspend services during public emergencies.9 Key provisions include: • Authority: Only the Home Secretary or authorized officers (Joint Secretary level) can issue orders.10 • Review Committee: Must review orders within five days to assess legality.11 • Transparency: Copies of orders must be forwarded to the committee and made public. However, the Rules lack clarity on defining “public emergency” and fail to mandate preshutdown hearings, leaving room for arbitrary application.12

B. Post-Anuradha Bhasin Challenges

Despite the Supreme Court’s guidelines, internet shutdowns persist. In 2023, India recorded

127 shutdowns, the highest globally.13 Notable cases include:

7 Anuradha Bhasin v. Union of India (2020) SCC Online SC 25 at para 45.

8 Ibid.

9 Ministry of Communications, Temporary Suspension of Telecom Services Rules (2017), G.S.R. 998(E).

10 Ibid.

11 Ibid.

12 Prasanth Sugathan, “Internet Shutdowns in India: A Constitutional Analysis”, Civil Law Journal 44 (2021).

13 Access Now, Internet Shutdowns in 2023: A Global Review (2024).

1. Jammu and Kashmir 2G Restrictions

2. After Anuradha Bhasin, J&K’s internet was restored but limited to 2G speeds, crippling

healthcare and education. In Foundation for Media Professionals v. Union of India (2020)9, petitioners argued that throttling violated the proportionality test. The Supreme Court declined immediate relief, highlighting the state’s “national security” concerns but urged periodic reviews.14

3. Farmers’ Protest Shutdowns (2021)

During the farmers’ protests, internet services were suspended in Delhi-NCR. The Delhi High Court, citing Anuradha Bhasin, ordered restoration, stating that “indiscriminate shutdowns undermine democratic accountability”.15 III. Arguments for Recognizing a Separate Fundamental Right

A. Socioeconomic Imperatives

1. Education: Online learning platforms like DIKSHA and SWAYAM are inaccessible

without internet, disproportionately affecting marginalized groups.16

2. Healthcare: Telemedicine initiatives (e.g., e-Sanjeevani) rely on connectivity for rural

healthcare delivery.17

3. Livelihoods: Gig economy workers (e.g., Swiggy, Ola) depend on apps for income.18

B. Global Precedents

1. United Nations: The 2016 resolution declared internet access a human right, integral

to freedom of expression.19

14 Foundation for Media Professionals v. Union of India (2020) SCC Online SC 189.

15 Tanmay Singh v. Union of India (2021) Delhi HC WP(C) 2345/2021.

16 NITI Aayog, National Strategy for Artificial Intelligence (2018).

17 Ministry of Health, Annual Report 2022-23.

18 ILO, World Employment and Social Outlook (2023).

19 UNHRC Resolution A/HRC/32/L.20 (2016).

2. Finland: Recognized broadband access as a legal right in 2010.20

3. Costa Rica: In La Nación v. President, the Supreme Court held that internet access is

protected under the right to education and freedom of speech.21 C. Counterarguments and Criticisms

1. National Security: Governments argue that shutdowns prevent misinformation during

crises (e.g., communal riots).22

2. Misuse Concerns: Unrestricted access could facilitate cybercrime and hate speech.23

IV. Comparative Constitutional Perspectives

A. India vs. Global Standards

While India’s judiciary has advanced a rights-based approach, legislative gaps persist. The EU’s General Data Protection Regulation (GDPR) and Brazil’s Marco Civil da Internet explicitly safeguard digital rights, whereas India’s Digital Personal Data Protection Act (2023) remains siloed from constitutional discourse.24 B. Judicial Activism vs. Legislative Inertia

Courts have bridged gaps through expansive interpretations (e.g., Anuradha Bhasin), but parliamentary action is needed to codify internet access as a standalone right. Private members’ bills, such as the Right to Internet Access Act (2021), have stalled in Parliament.25

V. The Path Forward: Recommendations

1. Constitutional Amendment: Insert Article 21F to explicitly guarantee internet access,

as proposed by the Justice B.N. Srikrishna Committee.26

20 Ministry of Transport and Communications, Finland, Broadband Policy (2010).

21 La Nación v. President of Costa Rica (2010) Case No. 12790.

22 MHA, Advisory on Law-and-Order Situations (2022).

23 Rajat Kathuria, “Regulating Digital Spaces: Challenges for India”, ORF Issue Brief (2023).

24 Arun Sukumar, “India’s Data Protection Law: A Missed Opportunity”, The Hindu (August 12, 2023).

25 Lok Sabha Secretariat, Private Members’ Bills (2021).

26 Justice B.N. Srikrishna Committee, Report on Data Protection (2018).

2. Revised Suspension Guidelines: Limit shutdowns to 24 hours unless judicial approval

is obtained, as recommended by the Standing Committee on Communications.27

3. Digital Literacy Programs: Integrate internet education into Sarva Shiksha Abhiyan

to bridge usage gaps.28 Conclusion The ruling delivered in the Anuradha Bhasin case constituted a pivotal moment in the trajectory of India’s digital rights jurisprudence, as it unequivocally affirmed the internet's indispensable role as a constitutional vehicle for facilitating communication and information exchange. Nevertheless, the reality of fragmented implementation practices combined with legislative hesitancy highlights an urgent need for comprehensive systemic reforms aimed at ensuring that the right to internet access is not only recognized in theory but also effectively realized in practice. As India embarks on its ambitious journey towards becoming a fully-fledged digital economy, the recognition of internet access as a fundamental right has transcended mere aspirational goals—it has become an imperative necessity that must be addressed with urgency and diligence.

27 Standing Committee on Communications, 21st Report (2022).

28 Ministry of Education, National Education Policy (2020).