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Access To Internet Is A Fundamental Right. About Time State Acknowledged It

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For the last few years, Pakistan has seen a growing movement for digital rights. The academia of the country has been at the forefront of this campaign and has fought for the digital rights of the people of Pakistan repeatedly. The concept of digital rights is not just being discussed within Pakistan alone but all over the world. Many argue that the discussion began with the ‘World Summit on Information Society’ which declared the right to service connection is in tandem with many other human rights that the United Nations has held dear and this was also echoed in the 2011 report to the ‘United Nation Human Rights Council’ that Internet and freedom to connect is chained with several human rights which can neither be ignored nor violated. The UNHCR in 2016 also passed a resolution declaring the right to the internet as a fundamental right.

This thought is not just echoed in the chambers of the United Nations but also within the courts, parliaments and judgments of many countries of which the most important to note is India, a country neighbor to Pakistan and due to their shared legal history, it is common practice for the legal minds to draw inspiration from the legal reasoning from both ends.

In 2019, the Kerala High Court in the case ‘Fahima Shirin vs The state of Kerala’ stated in its ruling that the ‘Right to Internet’ is a fundamental right forming a part of the fundamental rights of ‘Right to Privacy’ and ‘Right to Education’. This was also echoed in the most recent ruling of the Indian Supreme court where the court heard the case relating to suspension of Internet services in Jammu and Kashmir. The court held the following

“the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1) (a) and Article 19(1)”

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Both judgments focused on the internet as an enabler of various other rights within the Indian constitution and thus gave it a status of a fundamental right as an enabler of other rights; however, many legal minds have penned its own independent status under article 21 of the Indian constitution and the role it plays in enabling many other rights.

Pakistan, home to severe internet blackouts in areas where the state wants to control as much outflow of information as they can, is also home to internet rights, This can be found in the court decisions. The right to the internet is seen as a basic human right to be fought for by many in Pakistan and this was echoed in the orders of [now Supreme Court judge] Syed Mansoor Ali Shah during the hearings for the opening of Youtube in Pakistan, which stated that right to internet and connectivity cannot be abrogated easily nor indefinitely.

Another such judgment exists in the case ‘CMPak Limited vs Pakistan Telecommunication Authority’ penned by Justice Athar Minhallah of the Islamabad High Court where it was stated that mobile services from cellular phones to internet connection were an important fundamental right that cannot be violated or set aside in the name of security, so easily and only where the president may, by promulgation of emergency, set aside such right as he is authorized in accordance to the constitution of Pakistan. The court accepted the petition and the argument that

the suspension of mobile phone services by the Authority is ultra vires of section 54; the fundamental rights guaranteed under Articles 10-A, 9, 15, 16, 17, 18, 19 and 19-A are violated when mobile phone users are deprived from availing the services; access to telecommunication services has become a fundamental right.

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Most recently the court again found itself under this question by a petition filed by the people of erstwhile FATA which stated that they had no access to the internet. The case is being heard by Justice Athar Minhallah, who in his orders, declared that

“The internet facility is the basic right of every citizen. Article 19 of the Constitution protects the citizen’s right of freedom of expression”

And it orders the authorities to provide immediate access to the internet to the area.

The ‘Right to Internet’ is now considered as a basic right in Pakistan legal system but the state of Pakistan has still carried out severe blackouts of mobile services and internet repeatedly and as the state grabbed, manhandled, harassed and assaulted the students protesting for this basic right, the observers were left to wonder whether the state is the guardian of fundamental rights or is it, its greatest violator. The premier spoke a lot about justice and human rights. Such was his passion that he even named his movement and party under the title of ‘Justice’ but we are all left to wonder where that passion is when people protesting for their basic rights are assaulted repeatedly and are called traitors by his party leaders and allies. The premier cannot turn a blind eye to the plight of students of FATA and Balochistan, who only ask for their basic rights.

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Naya Daur