Children have fundamental right to access and use internet: Supreme Court

The Supreme Court has held that children, like any other individual, have a fundamental right to access and use the internet.

"We have no hesitation in saying that the right to access and use the internet is a fundamental right of every individual under Article 21 read with Article 19(1)(a) of the Constitution. Our children, irrespective of their age enjoy the same rights, and to deny the same altogether would be as absurd," a Bench of Justices J.B. Pardiwala and Vinod K. Chandran held in an order.

The court said that denial to children would be akin to saying that individuals below a certain age did not have a conscience worth protecting or a freedom of speech worth expressing.

The court said the safety of children and their freedom were not at odds with each other. "Our children are entitled to both," the court noted.

Issuing a slew of direction for protective mechanisms, restrictions drawn from other jurisdictions and grievance outlets, the court emphasised that intelligent restraints and not blanket ban was the need of the day.

The court took a practical view that children did not cease to use the internet merely because the law prohibits them from doing so. "They continue to use the same, albeit without the knowledge of their parents or the authorities. They move to other platforms and websites that are unregulated and even more unsafe," the court said.

An atmosphere of hostility and stringent restrictions stop children, enticed or threatened on the internet, reluctant in report to parents, guardians and trusted adults out of fear of reprisal for using the internet. "This would significantly undermine the safety of our children, who are already apprehensive about confiding such incidents, even without such restrictions, and defeat the avowed object of the POCSO Act," the court said.

Even otherwise, it said keeping children away from social media platforms would, by no stretch of imagination, reduce incidents of online abuse revealed in news reports.

"All that we are trying to say is that any blanket restriction on the access of internet by children is nothing more than unproven measures of proven disproportionality. No jurisdiction has, so far, been able to demonstrate that children are any safer on account of such measures. Its efficacy is at best contested, and without question, not a substitute for the initiative and efforts required from all the stakeholders, be it the intermediaries, the law enforcement agencies, the Ministry of Electronics and Information Technology or the courts," the Bench observed.

The court however said their observations were not against age-based online restrictions. "We acknowledge that, some form of safeguards arenecessary for the safety our children online and the moderation of the content accessible at their fingertips," the court said.

The court, in this regard, suggested system that placed greater emphasis on parental consent, guidance and oversight on the access to social media platforms by children along with a dedicated “child mode” for such accounts with measures proportionate to the object of ensuring their safety.